In re M.S.

A mother and father had two children together, M.S. and K.S. The father, M.S., and K.S. were members of the Puyallup tribe (tribe) (defendant) but were not domiciled on a reservation. In August 2004, the Department of Human Services of the State of Oklahoma (the state) (plaintiff) filed an emergency petition in state juvenile court to remove M.S. and K.S. from their home. The state placed M.S. and K.S. in foster care in a non-Native home, and the tribe moved to intervene. The state and tribe then agreed that if reunification efforts failed, M.S. and K.S. would be placed with a Puyallup foster family. Reunification attempts continued until March 2006, when the state filed a petition to terminate parental rights, which the court granted in June 2006. The state notified the tribe that it was removing M.S. and K.S. from the foster home. The foster home filed an objection to removal and moved for a hearing but did not serve the tribe with notice. The tribe coincidentally learned of the hearing and unsuccessfully attempted to participate. The juvenile court granted the foster family’s motion, and M.S. and K.S. remained in the foster home. Meanwhile, the tribe worked with the state to place M.S. and K.S. with a Puyallup relative, who then died. The tribe filed an Indian Child Welfare Act (ICWA) motion to transfer jurisdiction to a tribal court or to place M.S. and K.S. with a different Puyallup relative. The juvenile court denied the transfer, finding that there was good cause to retain jurisdiction because the state had exercised jurisdiction for two years. The tribe appealed. The court of appeals affirmed, holding that the tribe should have moved for transfer when M.S. and K.S. were placed in foster care or when the state filed the motion to terminate parental rights. The tribe appealed.