Adoption of Uday (Lawyers Weekly No. 11-011-17)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 16-P-801 Appeals Court ADOPTION OF UDAY.[1] No. 16-P-801. Middlesex. January 5, 2017. – February 16, 2017. Present: Carhart, Massing, & Lemire, JJ. Adoption, Dispensing with parent’s consent. Minor, Adoption. Parent and Child, Adoption, Dispensing with parent’s consent to adoption. Indian Child Welfare Act. Practice, Civil, Adoption, Assistance of counsel. Petition filed in the Middlesex County Division of the Juvenile Court Department on May 9, 2013. The case was heard by Kenneth J. King, J. Daniel R. Katz for the father. Kari B. Kipf Horstmann for Department of Children and Families. Amy S. DiDonna for the child. MASSING, J. The father appeals from a decree terminating his parental rights with respect to his son, Uday.[2] He argues that the Department of Children and Families (department) did not comply with the notice requirements of the Indian Child Welfare Act (ICWA), 25 U.S.C. § 1912(a) (2012), that the department’s failure to make reasonable efforts to reunite him with the child vitiates the judge’s finding of parental unfitness, and that the finding of unfitness is unsupported in any event. We affirm. ICWA notice. The father contends that despite the department’s knowledge of Uday’s possible Cherokee ancestry, it failed to “notify the . . . Indian child’s tribe . . . of the pending [termination] proceedings.” 25 U.S.C. § 1912(a). He also claims that his attorney was ineffective for failing to assert an ICWA claim during the proceedings in the Juvenile Court. We permitted the department to file a supplemental record appendix in which the department submitted letters from the three federally recognized Cherokee tribes — the Cherokee Nation, the United Keetoowah Band of Cherokee Indians in Oklahoma, and the Eastern Band of Cherokee Indians — all to the effect that Uday does not qualify as an “Indian child” under 25 U.S.C. § 1903(4) (2012).[3] See Indian Entities Recognized and Eligible To Receive Services from the United States Bureau of Indian Affairs, 78 Fed. Reg. 26,384, 26,385, 26,388 (2013) (listing tribal entities recognized as “Indian tribes” under 25 U.S.C. § 1903[4] and which must be notified of involuntary custody proceedings in which Indian child is involved). These responsive letters from the three Cherokee tribes demonstrate that the department in fact did comply with ICWA notice provision. While any ICWA claim the father or child may have had fails in […]