Upon an appeal from a judgment rendered by the Court of Appeals of Virginia. Court of Appeals Nos. 1947-12-2, 1948-12-2, and 1949-12-2.
JUSTICE MILLETTE, with whom CHIEF JUSTICE KINSER and JUSTICE POWELL join, concurring in part and dissenting in part.
Upon consideration of the record, briefs, and argument of counsel, the Court is of the opinion that for the reasons stated in the unpublished memorandum opinion of the Court of Appeals (Renee Bagley Nunnally, et al. v. Dinwiddie Department of Social Services, Record Nos. 1947-12-2, 1948-12-1, 1949-12-2) in this matter dated September 10, 2013, the judgment of the Court of Appeals will be affirmed.
Renee Bagley Nunnally (" mother" ) and Timothy B. Nunnally (" father" ) are the parents of young twin girls. The mother is a member of the Citizen Potawatomi Nation (" Tribe" ), a federally recognized Indian Tribe that is located in Shawnee, Oklahoma. The father is not of Indian descent and is not a member of any tribe. The children are either members of, or eligible to be members of, the Tribe.
The children were removed from their parents' home and placed in the temporary custody of a relative in November 2010, while services were offered to their parents. However, the parents failed to comply with the requirements set by the Juvenile and Domestic Relations District Court for Dinwiddie County (" J& DR court" ), and custody of the children was transferred to the Dinwiddie Department of Social Services (" DDSS" ) in April 2011.
In June 2011, DDSS filed petitions for foster care plans with the goal of adoption and to terminate the Nunnallys' parental
rights. The Tribe then filed a motion to intervene, which was granted on September 16, 2011. The Tribe also filed a motion to transfer jurisdiction to tribal court [288 Va. 215] under the Indian Child Welfare Act of 1978 (" ICWA" ), which the J& DR court considered on October 14, 2011, along with DDSS' petitions to terminate the mother and father's parental rights. The J& DR court denied the petitions to terminate parental rights, apparently due to the unavailability of a required expert witness.
DDSS and the guardian ad litem appointed to represent the children filed timely appeals in the Circuit Court of Dinwiddie County (" trial court" ) on November 1, 2011. The Tribe filed a notice of intervention and a motion to transfer the case to tribal court on December 12, 2011. Both parents also filed separate motions seeking to transfer the matter to tribal court.
The trial court held a hearing on the motion to transfer, during which DDSS and the guardian ad litem both objected to transferring the case to tribal court. On August 29, 2012, the trial court held that good cause existed not to transfer the proceeding to tribal court. The trial court determined that the case was at an advanced stage when the transfer petition was received. The trial court also found that the case could not adequately be presented in tribal court without undue hardship to the parties or witnesses, and that to remove the children from their current foster home would be extremely harmful to them. The trial court subsequently terminated the mother and father's parental rights.
The mother and father filed separate appeals to the Court of Appeals of Virginia challenging the trial court's holding that good cause existed not to transfer and the trial court's decision to terminate their parental rights.
The Court of Appeals issued an unpublished memorandum opinion in which it reversed the judgment of the trial court on the motion to transfer, vacated the order terminating the parental rights of the mother and father, and remanded for further proceedings consistent with the published opinion it simultaneously released in the case of Thompson v. Fairfax County Dep't of Family Servs., 62 Va.App. 350, 747 S.E.2d 838 (2013). In Thompson, the Court of Appeals rejected the traditional " best interests of the child test" in favor of the more limited test involving an immediate serious emotional or physical harm, or a substantial risk of such harm, to a child arising from the transfer to a tribal court. Id. at 374-75, 747 S.E.2d at 850.
We affirm the Court of Appeals' decision to reverse and remand this matter to the trial court in light of the standards articulated in Thompson.
This order shall be certified to the Court of Appeals of Virginia and to the Circuit Court of Dinwiddie County, and shall be ...