In re M.C.P

In In re M.C.P. (1989) 153 Vt. 275, the minor was the adoptive child of a Mohawk Indian. (Id., 571 A.2d at p. 629.) The minor's adoptive father testified that while the child was not currently a member of the Mohawk Tribe, she could be eligible for membership in the tribe. (Id. at p. 632.) Based on that testimony and the child's adopted status, the trial court ruled that she did not meet the definition of an "Indian child" under section 1903(4), and that no notice of the proceeding need be given to the Mohawk Tribe. (In re M.C.P., at p. 632.) The Vermont Supreme Court reversed, finding that under the ICWA it was up to the Mohawk Tribe itself to determine whether the minor was a member of the tribe. (In re M.C.P., at pp. 632-635.) The court first focused on the language of the ICWA's notice provision, section 1912(a): "The notice provision, 25 U.S.C. 1912(a), applies not only when the trial court finds the juvenile is an Indian child but also when the court 'has reason to know that an Indian child is involved.' This language reflects the fact that Indian tribes have an interest in Indian child welfare proceedings apart from the parties and that the information provided by the parties bearing on whether the juvenile is an Indian child may be incomplete. It also reflects the fact that Indian tribes are in a better position to determine the membership of individuals who have some relationship to the tribe and the court should defer to this expertise." (In re M.C.P., supra, 571 A.2d at p. 633.) The Vermont court also found that requiring notice in the case of an adoptive parent with Indian ties was consistent with the Guidelines and with the approach taken in other notice cases, including In re Junious M. (1983): "The cases that have resolved notice questions have followed the Guidelines in giving a broad reading to the obligation to give notice and redressing notice violations even where it is unclear that the child involved is an Indian child." (In re M.C.P., at p. 633.) Finally, noting that the ICWA provided for collateral attack on juvenile placements for violation of the notice requirement, the court observed that "[t]o maintain stability in placements of children in juvenile proceedings, it is preferable to err on the side of giving notice and examining thoroughly whether the juvenile is an Indian child." (In re M.C.P., at pp. 634-635.)