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Dinwi          e Department of Social Services,                        Appellant,

 aga      st        Record No. 131584
                    Court of      Is Nos. 1947 12-2,
                     1948 12 2, and 1949-12-2

Renee           1   Nunnally, et al.,                                  Appellees.


                                                   Upon an appeal from a
                                             judgment rendered by t   Court
                                             of     als of Virginia.


         Upon consideration of the record, briefs, and               ument
of counsel, the Court is of the opinion                     for the reasons stated
in the unpublished memorandum opinion of the Court of                        s
(Renee               Nunnall      et al. v. Dinwi              rtment 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
( II
         her") are the         rents of young twin girls.           mother is a
member of the Citizen Potawatomi Nation ("Tribe"), a                    rally
recognized Indian Tr              that is locat     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                   members of,
the Tr
         The children were removed from their parents' home and placed
in the temporary custody of a relative in November 2010, while
se       ces were offe          to their parents.    However, the parents
failed to comply with the requirements set by the Juvenile and
Domestic Relations District Court for Dinwi                e County ("J&DR
court"), and cust          of the children was transferred to the
Dinwiddie          rtment 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 t             Nunnallys' parental
rights.     T    Tr      then filed a motion to intervene, which was
granted on S             r 16, 2011.   The Tr       also filed a motion to
transfer juri         ction to tribal court         r the Indian Child
Welfare Act of 1978 ("ICWA"), which               J&DR court considered on
October 14, 2011, along with DDSS'              itions to terminate the
mother and fat        r's parental rights.      The J&DR court denied the
petitions to t          nate parental rights,            rently due to the
unavailability of a required expert             tness.
     DOSS and the guardian ad litem appointed to represent
children filed t         ly appeals in the Cir       t Court of Dinwiddie
County ("trial court") on November 1, 2011.              The Tribe filed a
notice of        ervent on and a motion to transfer the case to tr"                1
court on De             12, 2011.   Both parents also filed separate
motions see       ng to transfer the matter to tribal court.
     The trial court held a hea         ng on t      motion to transfer,
during which DOSS and the guardian              litem both objected to
transferring the case to tribal court.            On August 29, 2012, the
trial court        Id that good cause exis         not to transfer
proceeding to tr         1 court.   The trial court determined               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 ha                 ip to

                                        2

the parties or witnesses, and that to remove t            children from
their current foster horne would be extremely harmful to them.
trial court subs       ntly terminated the            r and father's
parental rights.
     The mot             ther filed separate            Is to the Court of
Appeals of Vi     inia challenging the trial court's holding that good
cause existed not to transfer and the trial court's decision to
terminate their      rental rights.
     The Court of         Is issued an unpublished memorandum opinion
in which it revers      the judgment of the trial court on the mot
to transfer, vacat            order terminat        the parental rights of
the mother and fat     r, and remanded      r          r proceedings
consistent with the published opinion it s             taneously relea
the case of         son v. Fairfax Count           't of Famil   Servs. , 62
Va. App. 350, 747 S.E.2d 838      (2013).   In              the Court of
Appeals rejected the traditional "best interests of the child t st H
in favor of the more limited test invol              an immediate serious
emotional or        ical harm, or a substantial risk of such harm, to
a child aris       from the trans      to a tribal court.        Id. at 374
75, 747 S.E.2d at 850.
     We affirm the Court of Appeals'             ision to reverse and remand
this matter to t      trial court in 1           of the standards
articulated            son.




                                      3

                is order shall be certified to the Court of               Is of
Vir             a and to the Circuit Court of Dinwi           e County, and shall be
       i                the Virginia Reports.




JUSTICE MILLETTE, with whom CHIEF JUSTICE KINSER and JUSTICE POWELL
 oin, c oncurring in part and dissenting in  rt.

                  major     y opinion disregards prece            rom the Supreme
Court       0     the United States, substitutes its j             nt for that of
           ess, and embraces an entirely novel analysis that is, upon
in         ction, i         stinguishable from a st         rd that the majority
op         on concedes is inappropriate.             While I jo    in that portion of
the majority opinion directing remand of t                   s matter to the trial
court,          for t      reasons explained below, I re           fully dissent from
that              ion approving the incorporation of a              fied "best
      erests of the child" consideration into                      rely jurisdictional
"           cause" analysis in considering                  r a matter should be
transfe                 to a tribal court.
                                      I.     Discussion

A.                Indian Child Welfare Act

           At issue is the Indian Child Welfare Act of 1978 (the "ICWA"),
25 U.S.C. § 1901 et seq., passed by t                    United States Congress over
35 years ago.              The ICWA is designed to         otect the best interests
of I            an children."     25 U.S.C. § 1902.       As relevant to this appeal,
the ICWA accomplishes this goal by p                     ding for tribal court
juri            ction over child custody                 ngs involving an Indian
child            rsuant to a "dual jurisdict              scheme" set forth in 25
                                                4

U.S.C.    §   1911.     Mississ         i Band of Choctaw Indians v. HoI
                        ~~~~~~--~~~~~~~~~~~~~~~~~~~~~



490 U.S. 30, 36 (1989).
     Section 1911(a) "establishes exclusive                    urisdiction in
tribal courts                           ngs conce          an Indian child who resides
or is domiciled wi                  the reservation of such tribe, as well as              r
wards of tribal courts regardless of                         le."                490 U.S.
at 36 (emphasis                d)   (internal quotation marks omitted).          Section
1911(a) does not               ly to this case.
     Section 1911(b) "creates concurrent but
jurisdiction in t              case of [Indian]        i      n not domi         on the
reservation" for proceedings involving                     ster care placement
termination of              rental rights.     Hol    ield, 490 U.S. at 36 (             sis
added).       Section 1911(b) applies to this case.
     Section 1911 (b)               rmits "any [s] tate court proceeding            the
  ster care placement of, or terminat                      of parental ri    s to, an
Indian child" to be "transfer[red] to the jurisdiction of the
tribe."       Four statutory requirements must be met for such a transfer
to occur:      (1)    "ei      r parent [ ,] or t       Indian custodian [ ,] or the
Indian child ' s t             " must petition        r a transfer;   (2) neither
parent can object to the transfer;                  (3) the tribal court to which the
case would be transferred must not                      ine the transfer; and
(4) there must               an "absence of good cause to the contrary."            25
U.S.C.    §   1911(b)         Only this fou          requirement is at issue in this
appeal, and t           majority opinion errs in approving the Court of
Appeals' determination of what consi                   rations are app      iate for
the "good cause"                ysis.




                                               5

B.                                                              a "Best Interests of
                                                                    Anal is

       Today, the majority opinion summa              ly approves of the Court of
Appeals' explanation of what a court should consider in the "good
cause" analysis, as set forth in                    on v. Fairfax
      rtment of Famil       Services, 62 Va.           . 350, 747 S.E.2d 838
(20 3).     I     sagree      th one si     ificant aspect of                son
decision.       The Court of        als incorporated a modified "best
interests of the           ild" consi     ration       o the       ly juri    ctional
"good cause" analysis.          Id. at 373-77, 747 S.E.2d at 850-52.           In
particular, the majority opinion                   oves of a court's consideration
of whether "clear and convincing evidence [establishes] that
transferring the case to a tribal court would cause, or would
present a s        tantial risk of causing, immediate serious emotional
or physical damage to             child."       Id. at 376, 747 S.E.2d at 85 .
       I         rating this consideration into the Section 191 (b)                "good
cause" anal       is is error for t         following reasons.
                1. A "Best Interests" Consideration Contravenes
                        ted States Supreme Court Precedent

       The Supreme Court of             United States has noted that 25 U.S.C.
                                                                                   1
§    1911 is a jurisdict         1 statute.        HoI field,   490 U.S. at 36.        As
such, Section 1911(b) only allows a state court to determine "who
should make the [           ter care or parental rights] determination




1 HoI ield res     d legal issues pertaining to Section 1911(a).
See 490 U.S. at 42 54. Nevertheless, the Supreme Court's       ral
  scussion of 25 U.S.C. § 1911    lies w    equal    rce to Section
1911 (b) .
                                            6
concerning [Indian] children."                 Id. at 53.        Notably, a state court
cannot use Section 1911(b) to decide substantive issues, such as
"what the outcome of [the foster care or                        rental rights]
     termination shou          be. "    Id.    Instead, a state court "must                    r

to           experience, wi            and compassion of the" tribal court,
because it is the tr             1 court that must rule on the substant
issues once juris         ction is transfer                    Id. at 53-54           ernal
            ion marks omitted); see also
Affiliated Tribes of the Fort Berthold Reservation, 27 F.3d 1294,
1301 (8th Cir. 1994)            ("Absent any indication of bias, we will not
      sume the Tribal Court to be anything other than competent and
            ial.").
        The "best interests" consideration contravenes this                           recti on
by allowing a state court to second guess a tribal court's
     termination of substantive issues.                    This is because the actual act
of transferring juris            ction is not, in and of itself, something
that can cause "serious emotional or physical damage to the child."
                62 Va.         . at 376, 747 S.E.2d at 851.            Juris        ction,
be          a "court's         r to decide a case or issue a decree," is an
     stract concept,                   real world consequences of trans                rring
jurisdiction require only that parties a                          in front of,           papers
be filed with, a           f    rent tribunal.             Black's Law Dicti            980
(10th ed. 2014); see Kern Oil & Refini                        Co. v. Tenneco         1 Co., 840
F.2d 730, 734         (9th Cir. 1988)         (discussing the effects of
 urisdiction be           transferred between                   ral district
       llate courts)
        The act of transferring juris                 ct      ,then, cannot harm a
      ld.     Instead, only substantive                isions subs             to

                                                 7

transfer of juris        ct          - such as a tribal court's determination
that the Indian child should be moved to a new adoptive family
before ultimate resolution of the proceedings                fall within the scope
of a "best interests" consideration.                The Court of Appeals
recognized      is      ct when it held that the focus "must remain on
imrnediate serious emotional or physical damage flowing from the
transfer     self."                        62 Va. App. at 376, 747 S.E.2d at 851.
However, the Court of Appeals then compounded its error when it
cons ide     as relevant to this determination "whether                    Tr       is
willing to allow the child to stay                  her current environment,
pending adjudication of the case on                   merits of termination
and/or placement."        Id.        These post-transfer, substant         decisions
are the very tribal court determinations that a state court cannot
second guess.        See 201        ield   490 U.S. at 53-54.
           2. Congress has Already Spoken to an I   an Child's
              "Best Interests" in     Jurisdictional Scheme

     To       extent a "best interests" consideration is relevant, it
has already been decided by Congress                  enacting the ICWA.        Congress
made clear its reasons for enacting the ICWA in its "Congressional
findings," stating specifically: "the States,               [when] exercising
their recogni          jurisdiction over Indian chi             custody proceedings
through administrat                and judi    al bodies, have often failed to
recognize        essential tribal relations of Indian people and the
cultural and social standards prevailing in Indian                 com~unities     and
families."    25 U.S.C.        §    1901(5).    The ICWA thus "protect[s] the
rights of [an] Indian child as an Indian .                   . by making sure that
Indian child welfare determinations are not based on a white,
middle-class standard which,               in many cases, forecloses     acement

                                               8

    th an Indian            ly.n   HoI     ield, 490 u.s. at 37               rnal
quotation marks and alterations omitted).
         To protect Indian children from these dangers, Congress found
it to be in the best interests of Indian children for                         ster care
and parental right proceedings to be "                   sumptive[ly]" under the
jurisdiction of a tribal, rat               r than state, court.        HoI             490
u.s. at 36; see 25 U.S.C.           §    1902.          is, the presumption of
triba      juri      ction is in and of itself in the best interests of
Indian          Idren because tribal courts have "the                  rience,        sdom,
and compassion .            . to    shion an appropriate remedy" in these
cases.      HoI     ield, 490 U.s. at 54; see 25 U.S.C.           §§   1901(3)-(5);
1902; 1911 (B).          There is no                 "best interests" consideration
to be made.        Whether post-transfer actions have a negat                    impact on
Indian children was a risk Congress beli                      appropriate because it
is tr       1 courts that are most familiar with,              and respons           to, the
needs of their Indian community and Indian children.                     25 U.S.C.
§   1901 (4),     (5).
         Additionally, because the ICWA "precludes the imposition of
     10 standards by creating a broad presumption of jurisdiction" in
t        1 courts, allowing a "best interests" consideration under
Section 1911(b) "defeats the very purpose for which the ICWA was
enacted [by allowingj Anglo cultural                   ases into the analysis."
                                            906 S.W.2d 152, 169-70 (Tex. App.
1995 )
          3. The Court Adopts a Minor y Position, One That Is
      Indistinguishable From a Position It Recognizes As Incorrect

         Most states that have confronted the issue we face today have
held that a "best interests" consideration is inappropriate under

                                                 9
the "good cause" analysis      Section 1911(b).   Eight states
conclusively adopt    this     ition, including Colorado, Illinois,
Minnesota, Missouri, Nebraska, New Mexico, North Dakota,         Texas.
                        870 P.2d 1252, 1258 (Colo. Ct. App. 1994); In
re Armell, 550 N.E.2d 1060, 1065-66 (Ill. App. Ct. 1990); In re
   Id of: R.L.Z. and R.G.L, 2009 Minn. App. Unpub. LEXIS 1015, at
*14 16 (Minn. Ct. App. 2009)   (unpublished); C.E.H. v. R.H., 837


  Additionally, three other states have not expressly held that
"      cause" analysis of Section 1911(b) precludes a "best
interests" considerat    ,but their opinions imply such a position.
        rst, Iowa has adopted its own, state version of the ICWA.
See Iowa Code §§ 232B.1           Because that state law provides
more than the minimum standards of        federal ICWA, the state ICWA
governs transfer of jurisdiction for cases involving Indian
children within Iowa.   See In the Interest of N.V., 744 N.W.2d 634,
637 38 (Iowa 2008).   Relevant to our purposes, the Iowa Supreme
Court noted that Iowa courts never approved of a "best interests"
consideration under the f    ral ICWA when it was the governing law.
Id.
      Second, the Utah Supreme Court held that Utah's state
abandonment law cannot allow a        r's parent to          that
minor's domicile to frustrate the exclus       jurisdiction provision
of Section 1911(a).   In re      ion of Hall         732 P.2d 962, 968­
70 (Utah 1986).   In ruling on the ICWA's juri      ctional provis
        ing state law, the Utah Supreme Court refused to weigh
typical "best interests" considerations,       ludi    "the bonding
that [took] place between [the adoptive parents]          [the minor] ."
Id. at 971-72.
      Third, the Wisconsin Court of       als held that a trial court
did not err when considering a minor's "best        erests" as it
re    ed to a Section 1911(b) "good cause" analysis, because that
"best interests" cons    ration was tied solel "to the timel        ss
of the tribe's attempt to take juri      ction of [the] case." State
v. Debra F., 695 N.W.2d 905, 2005 Wisc. App. 254, at *8 (Wis. Ct .
    . 2005).  Timeliness is an appropriate consideration under the
"good cause" analysis, and is not synonymous with a typical "best
interests" consideration.
                                   10
S.W.2d 947, 954         (Mo. Ct. App. 1992); In re Interest of Z           ena R. v.
Elise M., 825 N.W.2d 173, 184-86 (Neb. 2012)              (overruling its
decision to allow a "best interests" consideration in In re Interest
of C.W.,         479 N.W.2d 105 (Neb. 1992)); In re Guardiansh           of Ashle
Elizabeth R., 863 P.2d 451, 456 (N.M. Ct. App. 1993)               i   In re Interest
of A.B. v. K.B.,         663 N.W.2d 625,   633-34   (N.D. 2003);
Tr:lpe, 906 S.W.2d at 169-71.
        Only a minority of six states allow a "best interests"
consideration in the Section 1911(b)            "good cause" analysis,
    uding Arizona, California, Indiana, Montana, Oklahoma, and South
            3
Dakota.          In re Mari             Juvenile Action No. JS 8287, 828 P.2d
1245, 1251 (Ariz. Ct. App. 1991); In re Alexandria P., 228 Cal. App.
4th 1322, 1355 56 (Cal. Ct. App. 2014); In re
                                                    ----------~----------------

525 N.E.2d 298, 308           (Ind. 1988); In re T.S., 801 P.2d 77, 79-80
(Mont. 1990);                                           754 P.2d 863, 869 (Okla.
1988)   i   In re Guardiansh       of J.C.D.,   686 N.W.2d 647, 650 (S.D.
2004) .
        Four other state courts have acknowledged the issue, but
avoided resolving it because the issue was not properly before the
court.          Ex    e C.L.J.
                --~--~~~~~-
                                  946 So.2d 880, 893-94     (Ala. Civ. App.


3 The South Carolina Court of Appeals sanctioned a "best interests"
consideration for Section 1911(b) purposes.   Chester Cnt.     't of
Social Servs. v. Coleman, 372 S.E.2d 912, 915 (S.C. Ct. App. 1988).
However, when the South Carolina Supreme Court reviewed that
  cision, it remained notably silent on the "best interests" issue
and held that the "good cause" analysis of Section 1911(b) is,
essentially, a modified forum non conveniens analysis.   See Chester
             of Social Servs. v. Coleman 399 S.E.2d 773, 775 77
(S.C. 1990).   It is therefore unclear whether the South Carolina
Court of Appeals' approval of the "best interests" consideration
remains good law.
                                  11
2006); In re C.R.H., 29 P.3d 849,854 n.24          (Alaska 2001); Inre
~~,        2007 Kan. App. Unpub. LEXIS 1154, at *2-6 (Kan. Ct. App.
2007)    (unpublished); In re Guardians         of J.O.,    743 A.2d 341, 348
49 (N.      Super. Ct. App. Div. 2000).
        The Court of Appeals rejected the pos       ion of all these other
courts, and instead fashioned a wholly novel, and supposedly narrow,
"best interests" cons      ration.   ~~~_o_n_      62 Va. App. at 373 76,
747 S.E.2d at 850-51.     Today, by approving the Court of Appeals'

~--=---
         on decision, the majority opinion embraces a position that is
a minority of one.
        Moreover, upon closer scrutiny, it is clear that this
supposedly limited "best interests"         consideration is actually
indistinguishable from the      neral "best interests" standard.          The
Court of Appeals acknowledged that "the traditional best interest of
the child analysis is too broad a consideration in deci             ng whether
good cause exists to retain jurisdiction" under Section 1911(b).
Thompso~,    62 Va. App. at 374, 747 S.E.2d at 850.         But the majority
opinion's limited "best interests" consideration is identical to the
general "best interest" st       rd's scope and type of             ew of post­
transfer tribal court rulings.
        First, the limited "best interests" cons           ration affords the
same scope of review of post-transfer tribal court rulings as the
general "best interests" standard.          The Court of Appeals created an
"immediate serious emotional or physical damage flowing from the
transfer itself" standard as the basis to determine what tribal
court determinations are subject to a state court's "best interests"
review.     Id. at 376, 747 S.E.2d at 851.       Putting to the side the
fact that all post-transfer determinations are immune from a state

                                     12 

court's second guessing, see Hol                  490 U.S. at 53-54, this
standard does not actually operate to segregate reviewable from
unreviewable tribal court rUlings.         The transfer of jurisdiction
itself is, essentially, the proximate cause of the tribal court's
ability to make any ruling in the proceeding.            Thus, all tribal
court rulings occurring after a Section 1911(b) trans            r of
jurisdiction "flow[] from the trans         r,"              62 Va. App. at
376, 747 S.E.2d at 851, and are subject to a state court's review
under the majority opinion's "best interests" consideration.
       Second, the limited "best interests" consi          ration affords the
same type of review of post-transfer tribal court rulings as the
general "best interests" standard.         That is, both allow a circuit
court to focus on the same legal factors,          including the emotional
and physical impact that a ruling would have on a child.                    re
Bailes v. Sours, 231 Va. 96, 101, 340 S.E.2d 824, 827-28           (1986)
(hoI    ng that a ruling which has a substantial "likelihood of
  flicting se   ous harm"   to the child "is repugnant to the child's
best interest"), with Thompson, 62 Va. App. at 376, 747 S.E.2d at
851.    Further, the factual context which informs the weighing of
such factors is likely to be the same for all tribal court rulings.
For example, questions of a child's mental and physical well being
in light of the child's attachments to his current home, and the
potential     r danger in a new home, are equally present in a non­
  nal ruling of whether a child should be moved to a new foster home
before final disposition, and a ruling on the ultimate issue of
whether the child should be placed in foster care or the parent's
rights should be terminated.     Simply put, the majority opinion's


                                    13 

limited "best interests" consideration and the general "best
interests" standard apply the same law to the same types of facts.
                             II.     Conclusion

     For the aforementioned reasons, while I join that portion of
the majority opinion's disposition of this action that directs
remand of the present appeal to the trial court for consideration of
the issues, I cannot join the majority opinion's decision to            ject
the Section 1911(b)   jurisdictional "good cause" analysis with a
mechanism for a state court to preemptively second guess a tribal
court's substantive de    sions.      I   would overrule the decision of the
Court of Appeals in   ~.~~s~o~n    in part, to the extent it directed
ci    t courts to evaluate a "best interests" consideration, and
reverse the Court of Appeals' disposition in the present case on
that issue, and affirm the Court of Appeals decision in the present
case in part, to the extent it directed the circuit court to
evaluate the other "good cause" considerations set forth in
T    son, 62 Va. App. at 377-83, 747 S.E.2d at 851-55.



                                    A Copy,

                                      Teste:



                                                          Clerk




                                          14 

