FROM THE PULAKSI COUNTY CIRCUIT COURT, ELEVENTH DIVISION [NO.
60JV-16-610] HONORABLE PATRICIA JAMES, JUDGE
Tabitha McNulty, Arkansas Public Defender Commission, for
E. Corbyn, Office of Chief Counsel, for appellee.
Chrestman Group, PLLC, by: Keith L. Chrestman, attorney ad
litem for minor child.
an appeal from the order entered on August 17, 2017, by the
Pulaski County Circuit Court terminating the parental rights
of appellant Sierra Crouch to her daughter, MW, born in July
2015. Crouch's sole point on appeal is that the circuit
court committed reversible error when it determined that the
Indian Child Welfare Act (ICWA) did not apply to this case.
MW was brought into emergency custody of the Arkansas
Department of Human Services (DHS) following a call to the
child-abuse hotline alleging child maltreatment. DHS filed a
petition for emergency custody and dependency-neglect on May
17, 2016. The petition included an affidavit, submitted by a
DHS family service worker, that stated, "Ms. Sierra
Crouch stated that she may be part of the Cherokee Indian
nation but she is not sure." The circuit court entered
an ex parte order formally placing MW into DHS's custody.
probable-cause order was entered on May 23, 2016. The order
made no mention of ICWA or its application to the proceeding.
On June 29, 2016, the circuit court adjudicated MW
dependent-neglected based on parental unfitness. This order
also made no mention of ICWA or Crouch's disclosure in
the affidavit that she believed she may be a member of the
Cherokee Nation. The case proceeded through both a review
hearing and a permanency-planning hearing during which there
was no mention of ICWA in the resulting orders. On May 17,
2017, DHS filed a petition for termination of parental
rights. During the termination hearing, no evidence or
testimony was presented with regard to Crouch's Cherokee
Nation heritage. On August 17, 2017, the circuit court issued
an order terminating Crouch's parental rights. In the
termination order, the circuit court made a finding that
"[s]ince neither the juvenile nor any parent is a member
of any Native American Indian Tribe, ICWA does not
apply." This timely appeal followed.
does not challenge the circuit court's finding that
termination of her parental rights was supported by at least
one statutory ground, nor does she challenge that the
termination of her parental rights was in the child's
best interest. Her sole argument on appeal is that the
circuit court committed reversible error by not complying
ICWA establishes minimum federal standards for the removal of
Indian children from their families and the placement of
Indian children into foster or adoptive homes. Hall v.
Ark. Dep't of Human Servs., 2012 Ark.App. 245, at
9-10, 413 S.W.3d 542, 547-48. The ICWA provides that a court
cannot terminate parental rights to an Indian child unless
there is evidence beyond a reasonable doubt, including the
testimony of qualified expert witnesses, that continued
custody of the child by the parent is likely to result in
serious emotional or physical damage to the child.
See 25 U.S.C. § 1912(f) (2012).
well established that failure to raise an issue before the
circuit court is fatal to an appellate court's
consideration on appeal. Hall, 2012 Ark.App. 245, at
10, 413 S.W.3d at 548. In Hall, the appellant argued
that DHS had an obligation to investigate and notify the
tribal nations of appellant's potential Indian heritage.
Id. There, the record contained no indication that
the issue of ICWA compliance was ever raised by appellant. On
appeal, we found the issue was not preserved because the only
mention of the child's possible Indian heritage in the
entire record was in the DHS employee's affidavit in
support of emergency custody. Id. We affirmed the
termination, holding that DHS did not have an obligation to
investigate the potential Indian heritage of the child.
Id. at 9, 413 S.W.3d at 547.
the record in the case at hand contains no indication that
the issue was ever raised below. In fact, Crouch acknowledges
that the issue was not raised at trial for the circuit court
to rule on, but she attempts to overcome this limitation by
framing the matter as "an issue of sufficiency."
Crouch also asserts that the notice requirements under ICWA
were triggered and that the parties were put on notice and
had reason to know that MW may be a member of the Cherokee
Nation. We are not convinced.
circuit court did not err in not requiring notice to be given
to the Indian tribe because the circuit court had no reason
to know that MW was an Indian Child. As in Hall, the
only mention of MW's possible Native American ancestry
was in the DHS employee's affidavit in support of
emergency custody. As we held in Hall, neither DHS
nor the court was obligated to investigate MW's potential
Indian heritage at that juncture. See also Lazaravage v.
Ark. Dep't of Human Servs., 2018 Ark.App. 29,
___S.W.3d. ___(holding that appellant did not preserve her
argument on appeal that DHS should have provided notification
to Indian tribes of proceedings; appellant raised the
"possible" ICWA matter at the probable-cause