IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA 

January 2023 Term 

_______________ 

No. 22-787 

_______________ 

STATE OF WEST VIRGINIA EX REL. THE DELAWARE TRIBE OF INDIANS, 

Intervenor below, Petitioner, 

v. 

THE HONORABLE STACY NOWICKI-ELDRIDGE, Judge of the Circuit Court of 

Boone County, K.A. and E.A., Intervening Foster Parents of I.R., A.S., Intervenor and 

Prospective Kinship Placement of I.R., M.J.-1 and M.J.-2, Proposed Intervenors and 

Prospective Kinship Placement of I.R., B.D., Respondent Father of I.R., and I.R., Subject 

Child of the Petition Below, 

Respondents. 

____________________________________________________________ 

Petition for a Writ of Prohibition 

WRIT GRANTED 

____________________________________________________________ 

Submitted: April 25, 2023 

Filed: June 12, 2023 

Jeremy B. Cooper, Esq.

Blackwater Law PLLC

Aspinwall, Pennsylvania

Counsel for the Petitioner

Patrick Morrisey, Esq.

Attorney General 

Andrew T. Waight, Esq.

Assistant Attorney General 

Charleston, West Virginia 

Counsel for the Respondent DHHR 

Matthew M. Hatfield, Esq.

Hatfield & Hatfield, PLLC 

Madison, West Virginia 

Counsel for Respondent Father B.D. 

Allison K. Huson, Esq.

FILED

June 12, 2023

released at 3:00 p.m.

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA
JUSTICE WOOTON delivered the Opinion of the Court.

JUSTICE ARMSTEAD dissents and reserves the right to file a separate opinion. 

Law Office of Allison K. Huson

Huntington, West Virginia

Counsel for Intervening Foster Parents 

K.A. and E.A.

Joseph H. Spano, Jr., Esq.

Pritt & Spano, PLLC

Charleston, West Virginia

Counsel for Intervenor A.S.

Adam Campbell, Esq.

Campbell & Smith PLLC

Charleston, West Virginia

Counsel for Proposed Intervenors M.J.-1 

and M.J.-2

Moriah N. Myers, Esq.

Moriah Myers—Huntington

Huntington, West Virginia

Guardian ad litem
i

SYLLABUS BY THE COURT

1. “In determining whether to entertain and issue the writ of prohibition 

for cases not involving an absence of jurisdiction but only where it is claimed that the lower 

tribunal exceeded its legitimate powers, this Court will examine five factors: (1) whether

the party seeking the writ has no other adequate means, such as direct appeal, to obtain the 

desired relief; (2) whether the petitioner will be damaged or prejudiced in a way that is not 

correctable on appeal; (3) whether the lower tribunal’s order is clearly erroneous as a matter 

of law; (4) whether the lower tribunal’s order is an oft repeated error or manifests persistent 

disregard for either procedural or substantive law; and (5) whether the lower tribunal’s 

order raises new and important problems or issues of law of first impression. These factors 

are general guidelines that serve as a useful starting point for determining whether a 

discretionary writ of prohibition should issue. Although all five factors need not be 

satisfied, it is clear that the third factor, the existence of clear error as a matter of law, 

should be given substantial weight.” Syl. Pt. 4, State ex rel. Hoover v. Berger, 199 W. Va. 

12, 483 S.E.2d 12 (1996). 

2. West Virginia does not recognize the Existing Indian Family 

exception to the Indian Child Welfare Act, 25 U.S.C. §§ 1901 to -1963 (2021).
1

WOOTON, Justice:

Petitioner, The Delaware Tribe of Indians (“the Tribe”), seeks a writ of 

prohibition precluding the Circuit Court of Boone County from enforcing its September 

30, 2022, order denying the Tribe’s motion to transfer the underlying abuse and neglect 

proceedings to the District Court of the Delaware Tribe (“the tribal court”) pursuant to the 

requirements of the Indian Child Welfare Act (“ICWA” or “the Act”), 25 U.S.C. §§ 1901 

to -1963 (2021). In denying the Tribe’s motion to transfer the circuit court adopted a 

minority doctrine known as the Existing Indian Family (“EIF”) exception to the ICWA,

which posits that the Act only applies when a child is removed from his or her custodial

Indian parent or from an existing “Indian family.” In the alternative, the circuit court found 

that if the ICWA applied, good cause existed to deny the Tribe’s motion to transfer under 

25 U.S.C. section 1911(b). The Tribe challenges each of these conclusions. Upon 

consideration of the parties’ oral arguments and briefs, the appendix record, and applicable 

authorities we find that the circuit court erred in denying the motion to transfer this action 

to the tribal court. Accordingly, we grant the requested writ, and remand the case to the 

circuit court with directions to enter an order transferring this matter to the tribal court. 

I. FACTUAL AND PROCEDURAL BACKGROUND

The underlying abuse and neglect proceedings began in January 2020 when 

the West Virginia Department of Health and Human Resources (“DHHR”) filed an abuse 
2

and neglect petition alleging that I.R.’s1 mother, K.R. (“the mother”), abused drugs, was 

homeless, and could not provide for the then thirteen-month-old child, I.R. At the time the 

petition was filed the identity of I.R.’s father was unknown, but the petition alleged that he 

had abandoned the child. Upon the filing of the petition the circuit court ordered I.R. 

removed from the mother’s custody. At that time the child was placed with Respondent 

Foster Parents E.A. and K.A. (“foster parents”). Ultimately the mother stipulated to the 

allegations of abuse and neglect contained in the petition and was subsequently adjudicated 

as an abusing and neglectful parent. The circuit court granted the mother a postadjudicatory improvement period. 

The DHHR later moved to revoke the mother’s improvement period, noting 

her lack of compliance with any requirements set out in the case plan. At a hearing 

convened on July 1, 2020, the circuit court granted the DHHR’s motion. The court set a 

dispositional hearing on the mother’s rights for August 5, 2020, and at that hearing 

ultimately terminated her parental rights to the child.

At the July 1, 2020, hearing counsel for the unknown father moved for 

paternity testing of Respondent Father B.D. (“Respondent Father”), a putative father of the 

child. The court granted that motion, and testing confirmed that Respondent Father was 

1 Consistent with our practice in cases involving sensitive facts, we use initials 

where necessary to protect the identities of those involved in this case. See In re K.H., 235 

W. Va. 254, 773 S.E.2d 20 (2015). 
3

the biological father of the child. In a subsequent hearing on January 4, 2021, the circuit 

court dismissed the unknown father from the case and appointed counsel for Respondent 

Father. In that order the circuit court found that there were no allegations against 

Respondent Father and that he was unaware of the child’s existence until the time of the 

paternity test; therefore, he was determined to be a “non-maltreating parent in this matter.” 

Accordingly, the court ordered the DHHR to begin the process of unifying Respondent 

Father and the child, and to begin supervised visits between the two. 

The DHHR began the reunification process but was hindered by Respondent 

Father B.D.’s residence in the State of Minnesota, which required the DHHR to facilitate 

reunification via the Interstate Compact for the Placement of Children (“ICPC”). See W. 

Va. Code §§ 49-7-101, 102 (2018). The DHHR submitted its ICPC request to the 

Minnesota Department of Human Services (“Minnesota DHS”) on January 25, 2021, 

seeking a home study of Respondent Father’s home. It is apparent from the record that 

Respondent Father cancelled his initial home study with the Minnesota DHS and then 

failed to respond to calls, letters, or text messages from that agency until late March 2021. 

Finally, he sent a text message to the Minnesota DHS stating that he wished to withdraw 

from the ICPC process due to ongoing relationship issues and his belief that he was unable 

to parent I.R. alone. At that time, Respondent Father requested that the Minnesota DHS 

contact his sister, A.S., about caring for the child. 
4

The DHHR was not formally notified of these developments until April 

2021. However, in March 2021 A.S. contacted the DHHR to inquire about placement of 

the child. Thereafter a multidisciplinary team (“MDT”) meeting convened, at which A.S. 

was present. At the meeting the DHHR advised all parties that I.R. had been in foster care 

for approximately fourteen months and had bonded to her foster family. Nevertheless, the 

DHHR submitted an ICPC request to the Minnesota DHS in April 2021 requesting an 

evaluation of A.S. The DHHR also began supervised visits between A.S. and the child.

In December 2021, A.S. moved to intervene in the abuse and neglect 

proceedings as a possible kinship placement for I.R., and Respondent Father informed the 

DHHR that he was a member of the Tribe. However, when the DHHR requested 

verification—specifically, a copy of Respondent Father’s tribal membership card—

Respondent Father indicated that the card was lost. During December 2021 the Tribe 

became aware of these proceedings.2

2 The appendix record is largely devoid of any information regarding the period 

from April 2021 to December 2021, but the parties agree that efforts were underway to 

place I.R. with either A.S. or the proposed-intervenor cousins, M.J.-1 and M.J.-2. No 

hearings were held before the circuit court during that time. 

Further, the record does not indicate how the Tribe came to be notified of these 

proceedings in December 2021, but it is undisputed that such notification did not come 

from the DHHR. Despite this, we have no trouble concluding that the Tribe had actual 

notice of the proceedings from December 2021 onward. See In re N.R., 242 W. Va. 581,

590, 836 S.E.2d 799, 808 (2019) (explaining that actual notice constitutes substantial 

compliance with the notice requirements of the ICWA at 25 U.S.C. § 1912(a)). 
5

In January 2022, the DHHR filed an amended abuse and neglect petition 

alleging that Respondent Father abandoned the child insofar as he withdrew from the ICPC 

process and ceased communications with the DHHR. The parties then convened for an 

MDT meeting to address these allegations, as well as concerns the DHHR had with A.S.’s 

ICPC report.3

 At the MDT meeting Respondent Father indicated that he wished to 

voluntarily relinquish his parental rights.

The circuit court convened a hearing on January 31, 2022, at which it granted 

A.S.’s motion to intervene, as well as a pending motion to intervene from the foster parents. 

At this hearing Respondent Father requested that the DHHR withdraw the amended abuse 

and neglect petition so he could complete the process of voluntarily relinquishing his 

parental rights. The DHHR agreed to do so, and subsequently withdrew the amended 

petition. 

The DHHR filed a second amended petition on March 1, 2022, after 

Respondent Father failed to complete the voluntary relinquishment process. The second 

amended petition included the same allegations: that Respondent Father had abandoned the 

3 The Minnesota DHS approved A.S. as a “relative-unlicensed caregiver” but the 

report failed to include a background check on A.S.’s husband. The DHHR found this 

troubling, given A.S.’s prior disclosure that her husband had a criminal history, and 

because the DHHR had been made aware of a domestic incident during the proceedings 

which resulted in the issuance of a protective order against the husband. Despite this, A.S. 

indicated that her husband would be returning to the home to continue planned home 

renovations.
6

child by withdrawing from the ICPC process, by failing to visit with the child, and by 

failing to maintain contact with the DHHR or the child. Before a hearing could be held on 

this petition, Stacy Emert—a representative of the Tribe—emailed the DHHR, the guardian 

ad litem (“GAL”) and other parties stating that she had been unable to get in contact with 

the DHHR. A DHHR supervisor responded to this email and advised Ms. Emert to contact 

the deputy circuit clerk about participation in these proceedings. When Ms. Emert was 

unsuccessful in doing so, the DHHR personally notified both the deputy clerk and the 

circuit judge of the Tribe’s contact, and thereafter facilitated the Tribe’s participation in 

subsequent hearings. 

The next hearing took place on March 7, 2022. The Tribe appeared by 

Oklahoma counsel Cynthia Burlinson, who reiterated that Respondent Father had tribal 

ancestry and intimated that the Tribe might seek to intervene pursuant to the ICWA. At 

this point Respondent Father expressed his surprise at the Tribe’s appearance in this matter 

and reiterated his desire to voluntarily relinquish his parental rights. The circuit court 

continued the matter to allow Respondent Father the opportunity to complete the voluntary 

relinquishment process. Before adjourning, however, the circuit court instructed the parties 

that anyone seeking to participate in this matter should file motions to intervene quickly 

and obtain local counsel if necessary.4

 

4 In this regard, the Tribe argues that the circuit court erred in requiring it to obtain 

local counsel. We need not address this argument as the Tribe does not indicate how, if at 
7

Once again Respondent Father did not complete the voluntary 

relinquishment paperwork, so the circuit court scheduled the next hearing for June 13, 

2022. At that time the court instructed counsel to file briefs addressing the applicability of 

the ICWA to this case, and advised the parties that the issue would be addressed at a hearing 

on August 15, 2022. The Tribe obtained local counsel and on August 9, 2022, moved to 

intervene in these proceedings. Prior to filing that motion the Tribe petitioned the tribal 

court to take jurisdiction in this matter, and the tribal court agreed to do so, provided that

the circuit court enter an order transferring the case. 

At the August hearing the circuit court granted the Tribe’s motion to 

intervene. It then heard argument from all parties, including the Tribe, on the applicability 

of the ICWA. Thereafter, on September 30, 2022, the court entered an order concluding 

that the ICWA was inapplicable to these proceedings because, although I.R. is an “Indian 

child” under the Act, she was not removed from “an intact Indian family” insofar as she 

was not removed from Respondent Father’s custody or the home of another Indian family. 

In so ruling, the circuit court adopted the Existing Indian Family (“EIF”) exception to the 

all, it was prejudiced by this requirement. That said, we note that the Bureau of Indian 

Affairs has declined to require that tribes be permitted to appear without local counsel, but 

has stated that the agency “agrees with the practice adopted by the State courts that permit 

Tribal representatives to present before the court in ICWA proceedings regardless of 

whether they are attorneys or attorneys licensed in that State.” Indian Child Welfare Act 

Proc. (“ICWA Proc.”), 81 Fed. Reg. 38778, 38799 (June 14, 2016). This Court has 

previously permitted a non-attorney Tribal representative to participate in child custody 

proceedings governed by the ICWA. See N.R., 242 W. Va. 581, 836 S.E.2d 799.
8

ICWA. In the alternative, the circuit court found that, even if the ICWA applied, the 

proceedings were at such an advanced stage that “good cause” existed under 25 United 

States Code section 1911(b) to deny the Tribe’s motion to transfer. Based upon these 

conclusions, the circuit court entered an order on September 30, 2022, denying the Tribe’s 

motion to transfer this action to the tribal court. This petition for writ of prohibition 

immediately followed. 

II. STANDARD OF REVIEW

This Court has set forth the following standard of review in determining 

whether a writ of prohibition shall issue:

In determining whether to entertain and issue the writ of 

prohibition for cases not involving an absence of jurisdiction 

but only where it is claimed that the lower tribunal exceeded 

its legitimate powers, this Court will examine five factors: (1) 

whether the party seeking the writ has no other adequate 

means, such as direct appeal, to obtain the desired relief; (2) 

whether the petitioner will be damaged or prejudiced in a way 

that is not correctable on appeal; (3) whether the lower 

tribunal’s order is clearly erroneous as a matter of law; (4) 

whether the lower tribunal’s order is an oft repeated error or 

manifests persistent disregard for either procedural or 

substantive law; and (5) whether the lower tribunal’s order 

raises new and important problems or issues of law of first 

impression. These factors are general guidelines that serve as 

a useful starting point for determining whether a discretionary 

writ of prohibition should issue. Although all five factors need 

not be satisfied, it is clear that the third factor, the existence of 

clear error as a matter of law, should be given substantial 

weight.

Syl. Pt. 4, State ex rel. Hoover v. Berger, 199 W. Va. 12, 483 S.E.2d 12 (1996). 
9

III. ANALYSIS

The Tribe presents two arguments to this Court: that the circuit court 

exceeded its legitimate powers in (1) adopting the EIF exception, and (2) that the circuit 

court erred in finding good cause existed to deny the Tribe’s motion to transfer to tribal 

court.5

 We address each of these arguments in turn.

A. Existing Indian Family Doctrine

Preliminarily, the ICWA applies to any “child custody proceeding” involving 

an “Indian child.” 25 U.S.C. § 1903(1); see also id. § 1911 (explaining that Indian tribes 

shall have exclusive jurisdiction over child custody proceedings for children residing or 

domiciled within the reservation of that tribe, while State courts and tribal courts exercise 

concurrent jurisdiction over child custody proceedings involving children not residing or 

domiciled within a reservation). The ICWA defines a “child custody proceeding” to 

include proceedings dealing with foster care placement, termination of parental rights, preadoptive placement, and adoptive placement, id. § 1903(1), and defines “Indian child” to 

5 The Tribe also argued that the circuit court erred in concluding, in passing, that

applying the ICWA to this matter would constitute racially motivated discrimination, as 

any decision would be based on the Indian heritage of I.R. Because we conclude that the 

circuit court should have transferred this matter to the tribal court, we find it unnecessary 

to address this argument; however, we note that the Supreme Court of the United States

has plainly stated that “federal legislation with respect to Indian tribes, although relating to 

Indians as such, is not based upon impermissible racial classifications. Quite the contrary, 

classifications expressly singling out Indian tribes as subjects of legislation are expressly 

provided for in the Constitution and supported by the ensuing history of the Federal 

Government’s relations with Indians.” United States v. Antelope, 430 U.S. 641, 645 (1997)

(footnote omitted). 
10

mean “any unmarried person who is under age eighteen and is either (a) a member of an 

Indian tribe or (b) is eligible for membership in an Indian tribe and is the biological child 

of a member of an Indian tribe.” Id. § 1903(4). It is undisputed that these proceedings 

involve not only foster and pre-adoptive placement, but also the termination of parental 

rights; it is equally clear that I.R. is an Indian child insofar as she is the biological child of 

a member of the Tribe and is eligible for membership in the Tribe. Id. Plainly, the ICWA 

is applicable to this case. 

In arriving at a contrary conclusion, the circuit court adopted a minority 

doctrine, the EIF exception. This exception originated in the Supreme Court of Kansas, 

which explained that the ICWA is inapplicable where a child has no connection to his or 

her Indian parent, has not been in the custody of the Indian parent, and did not reside in a 

home with any other Indian family. Matter of Adoption of Baby Boy L., 643 P.2d 168 (Kan. 

1982), overruled by In re A.J.S., 204 P.3d 543 (Kan. 2009). In essence, the EIF exception 

permits a state court to circumvent the requirements of the ICWA if the court concludes 

that the Indian child is being removed from “a family with [no] significant connection to 

the Indian community.” Michael J., Jr. v. Michael J., Sr., 7 P.3d 960, 963 (Ariz. Ct. App.

2000). The Tribe argues that the circuit court’s adoption of this exception was clearly 

erroneous. We agree. 

From the time of its inception the EIF exception has come under intense 

scrutiny in various jurisdictions across the nation. Although the exception was adopted 
11

and applied in approximately twenty states in the 1980s and 1990, in recent years all but 

seven jurisdictions6 presented with the exception have either repudiated it—including the 

very court that created it7

—or rejected it in the first instance.8 While the reasoning of the 

courts rejecting the EIF exception varies, we find especially persuasive the explanation of 

the Court of Appeals of Virginia as to why the EIF exception must be rejected. In

Thompson v. Fairfax County Department of Family Services, 747 S.E.2d 838 (Va. Ct. App. 

2013), that court explained:

We decline to recognize the [EIF] Exception for a 

number of reasons. First, the plain text of the statute does not 

recognize the application of this exception. There is no 

threshold requirement in the Act that the child must have been 

6 These jurisdictions include only six states (Alabama, Indiana, Kentucky, Missouri, 

Nevada, and Tennessee) and a single appellate district in California. See, e.g., S.A. v. 

E.J.P., 571 So. 2d 1187 (Ala. Civ. App. 1990); In re Adoption of T.R.M., 525 N.E.2d 298 

(Ind. 1988); Rye v. Weasel, 934 S.W.2d 257 (Ky. 1996); C.E.H. v. L.M.W., 837 S.W.2d 

947 (Mo. Ct. App. 1992); In re N.J., 221 P.3d 1255 (Nev. 2009); In re Morgan, No. 02A01-

9608-CH-00206, 1997 WL 716880 (Tenn. Ct. App. Nov. 19, 1997); In re Alexandria Y., 

53 Cal. Rptr. 2d 679 (Cal. Ct. App. 1996) (4th Dist.).

7 Kansas laid the EIF doctrine to rest in 2009. In re A.J.S., 204 P.3d at 551 (“[W]e 

hereby overrule Baby Boy L. . . .and abandon its existing Indian family doctrine.”). 

8 See, e.g., In re Adoption of T.N.F., 781 P.2d 973, 977 (Alaska 1989); Michael J., 

Jr. 7 P.3d at 963-64; In re N.B., 199 P.3d 16, 20-22 (Colo. App. 2007); Indian Tribe v. Doe

(In re Baby Boy Doe), 849 P.2d 925, 927 (Idaho 1993); Tubridy v. Ironbear (In re Adoption 

of S.S.), 622 N.E.2d 832, 838-39 (Ill. App. Ct. 1993), rev’d on other grounds, 657 N.E.2d 

935 (Ill. 1995); Dep’t of Soc. Servs. v. Boyd (In re Elliott), 554 N.W.2d 32, 35-36 (Mich.

Ct. App. 1996); In re Adoption of Quinn, 845 P.2d 206, 209 n. 2 (Or. Ct. App. 1993), rev’d 

on other grounds, 881 P.2d 795 (Or. 1994); Adoptive Couple v. Baby Girl, 731 S.E.2d 550, 

558 n. 17 (S.C. 2012), rev’d on other grounds, 570 U.S. 637 (2013); In re Adoption of 

Baade, 462 N.W.2d 485, 489-90 (S.D. 1990); D.J.C. v. P.D.C. (State ex rel. interest of 

D.A.C.), 933 P.2d 993, 999-1000 (Utah Ct. App. 1997).
12

born into or must be living with an existing Indian family, or 

that the child must have some particular type of relationship 

with the tribe or his or her Indian heritage. “Because Congress 

has clearly delineated the nature of the relationship between an 

Indian child and tribe necessary to trigger application of the 

Act, judicial insertion of an additional criterion for 

applicability is plainly beyond the intent of Congress and must 

be rejected.” In re Baby Boy C., 27 A.D.3d 34, 805 N.Y.S.2d 

313, 323 (N.Y.App.Div.2005) (citations omitted).

Second, cases recognizing the exception ignore 

Congress’s intent “to protect the best interests of Indian 

children and to promote the stability and security of Indian 

tribes and families.” 25 U.S.C. § 1902 (emphasis added). As 

the Supreme Court recognized in [Mississippi Band of 

Choctaw Indians v. Holyfield, 490 U.S. 30 (1989)], “Congress 

was concerned not solely about the interests of Indian children 

and families, but also about the impact on the tribes themselves 

of the large numbers of Indian children adopted by nonIndians.” 490 U.S. at 49 []. The [EIF] Exception takes an 

unnecessarily restrictive approach to ICWA, one that would 

frustrate Congress’s intent to protect tribal interests.

Finally, in its findings, Congress stated “that the States 

... have often failed to recognize the essential tribal relations 

of Indian people and the cultural and social standards

prevailing in Indian communities and families.” 25 U.S.C. § 

1901(5). The [EIF] Exception requires courts to assess the 

“Indianness” of a particular Indian child, parent, or family, a 

subjective determination that courts “‘are ill-equipped to 

make.’” Baby Boy C., 27 A.D.3d at 49, 805 N.Y.S. at 324 

(quoting In re Alicia S., 65 Cal.App.4th 79, 76 Cal.Rptr.2d 121, 

128 (1998)). “Since ICWA was passed, in part, to curtail state 

authorities from making child custody determinations based on 

misconceptions of Indian family life, the [EIF] exception, 

which necessitates such an inquiry, clearly frustrates this 

purpose.” Id. (citations omitted). 

Thompson, 747 S.E.2d at 847. We agree with this reasoning; the EIF exception is plainly 

incompatible with the explicit provisions of the Act and contrary to Congress’s stated intent 
13

in passing the Act, namely the protection of Indian tribes and their resources, including 

their children. See 25 U.S.C. § 1901.

Our decision in this regard is further supported by guidance from the Bureau 

of Indian Affairs (“BIA”) set forth in its 2016 BIA Guidelines pertaining to application of 

the Act’s provisions. Guidelines for Implementing the Indian Child Welfare Act (“2016 

Guidelines”), 25 C.F.R. §§ 23.1 to -23.144 (2016). The 2016 Guidelines state, in relevant 

part:

In determining whether ICWA applies to a proceeding, 

the State court may not consider factors such as the 

participation of the parents or the Indian child in Tribal

cultural, social, religious, or political activities, the relationship 

between the Indian child and his or her parents, whether the 

parent ever had custody of the child, or the Indian child’s blood 

quantum.

Id. § 23.103(c). This unequivocal statement plainly dispels any notion that the EIF 

exception is compatible with the ICWA. Accordingly, we join the “swelling chorus of 

[jurisdictions] affirmatively reject[ing] the EIF exception[,]” ICWA Proc., 81 Fed. Reg. 

38778, 38802 (June 14, 2016), and hold that West Virginia does not recognize the Existing

Indian Family exception to the Indian Child Welfare Act, 25 U.S.C. §§ 1901 to -1963 

(2021). Accordingly, the circuit court erred in adopting the EIF exception and 

subsequently relying on that exception to determine that the ICWA was inapplicable to this 

case.
14

B. Good Cause to Deny the Motion to Transfer to Tribal Court

Despite its conclusion that the ICWA did not apply to the instant matter, the 

circuit court proceeded to determine, in the alternative, that good cause existed to deny the 

Tribe’s motion to transfer this case to tribal court because the underlying proceedings were 

at an “advanced stage.” The circuit court explained that this case had been pending for 

more than three years at the time the Tribe made its motion to transfer, and thus it would 

be disingenuous to argue that the proceedings were not at an advanced stage. As it did 

below, the Tribe argues before this Court that the proceedings are not at an advanced stage

insofar as Respondent Father has not even been adjudicated as an abusing or neglectful 

parent. After a thorough review of the relevant authorities, we agree with the Tribe that 

the circuit court erred in concluding that good cause existed to deny the Tribe’s motion to 

transfer. 

The Tribe’s motion to transfer this matter to the tribal court was made 

pursuant to 25 United States Code section 1911(b), which provides:

In any State court proceeding for the foster care 

placement of, or termination of parental rights to, an Indian 

child not domiciled or residing within the reservation of the 

Indian child’s tribe, the court, in the absence of good cause to 

the contrary, shall transfer such proceeding to the jurisdiction 

of the tribe, absent objection by either parent, upon the petition 

of either parent or the Indian custodian or the Indian child’s 

tribe: Provided, That such transfer shall be subject to 

declination by the tribal court of such tribe.

Succinctly put, this provision requires a state court to transfer a child custody proceeding 

to tribal court unless: (1) a parent objects to the transfer; (2) the tribal court declines to 
15

accept the transfer; or (3) “good cause” exists to deny the transfer. See id. The first 

exception is inapplicable insofar as Respondent Father supports the Tribe’s motion, and 

I.R.’s mother’s parental rights were terminated well before the motion to transfer was 

made. The second exception is likewise inapplicable because the tribal court has accepted 

jurisdiction of this case contingent upon the circuit court’s entry of an order transferring 

the matter. The circuit court relied solely upon the third exception—that there was “good 

cause” to deny transfer—in denying the Tribe’s motion. 

The ICWA does not define “good cause,” but the Code of Federal 

Regulations explicitly provides what cannot be considered in making a good cause 

determination. Specifically, 25 Code of Federal Regulations section 23.118(c) provides:

In determining whether good cause exists, the court must not 

consider:

(1) Whether the foster-care or termination-of-parental 

rights proceeding is at an advanced stage if the Indian 

child’s parent, Indian custodian, or Tribe did not 

receive notice of the child-custody proceeding until an 

advanced stage;

(2) Whether there have been prior proceedings involving 

the child for which no petition to transfer was filed;

(3) Whether transfer could affect the placement of the 

child;

(4) The Indian child’s cultural connections with the Tribe 

or its reservation; or

(5) Socioeconomic conditions or any negative perception 

of Tribal or BIA social services or judicial systems.
16

(Emphasis added.) In finding that subsection (c)(1) did not prohibit the circuit court from 

considering the “advanced stage” of this proceeding, the court relied upon a now-defunct 

provision in the 1979 BIA Guidelines, which enumerated a list of situations that did

constitute “good cause” to prevent transfer. Guidelines for State Cts.; Indian Child Custody 

Proc. (“1979 Guidelines”), 44 Fed. Reg. 67584 (Nov. 26, 1979). That list indicated that 

good cause to deny transfer existed where “[t]he proceeding was at an advanced stage when 

the petition to transfer was received and the petitioner did not file the motion to transfer 

promptly after receiving notice of the hearing.” Id. at 67591. In essence, this language 

provides that a state court may deny a motion to transfer where the moving party could

have moved to transfer but delayed doing so, thus effectively sitting on its right to change 

venue. See id. Before this Court several of the parties cited this guidance as a basis for 

arguing that the Tribe is not entitled to transfer because it knew of these proceedings in 

December 2021 but did not move to transfer until eight months later in August 2022. What 

the circuit court and the parties fail to recognize is that the 1979 Guidelines were explicitly 

abrogated and replaced by the BIA when it promulgated the 2016 Guidelines. See

Guidelines for Implementing the Indian Child Welfare Act, 81 Fed. Reg. 96476 (Dec. 30, 

2016) (“The [2016] guidelines replace the 1979 and 2015 versions[.]”). Therefore, we do 

not find the 1979 Guidelines persuasive, nor do we rely upon any guidance contained 

therein.

In discussing its decision to abrogate the 1979 Guidelines the BIA provided 

a detailed explanation as to why it specifically displaced the provision upon which 
17

respondents rely. ICWA Proc., 81 Fed. Reg. at 38823. First, the BIA explained that 

motions to transfer to tribal court are to be treated as a “modified doctrine of forum non 

conveniens,” or a motion to change venue pursuant to 28 United States Code section 1404 

(2021), which may be granted at any time during the pendency of the proceedings. Id. 

(“The mere passage of time is not alone a sufficient reason to deny a motion to transfer 

pursuant to 28 U.S.C. § 1404; nor is it for 25 U.S.C. § 1911(b).”); see also Matter of Appeal

in Pima Cnty. Juv. Action No. S-903, 635 P.2d 187, 191 (Ariz. Ct. App. 1981) (“[25 U.S.C. 

§ 1911(b)] was intended to permit a state court to apply a modified doctrine of forum non 

conveniens.”). Second, the BIA noted that the parents or the Tribe may have legitimate 

interests in delaying their motion to transfer the case to tribal court. ICWA Proc., 81 Fed. 

Reg. at 38823. For example, the BIA notes that the Tribe or parents may have no reason 

to transfer the case during the “foster care” phase, where the child has been only 

temporarily removed from the home with a goal of reunification with the parents, because 

the expectation is the child will be returned to his or her parents. Id. (citing In re Interest 

of Zylena R., 825 N.W.2d 173 (Neb. 2013)). However, once the State signals it intends to 

terminate parental rights, the Tribe and parents have a legitimate interest in having the 

matter decided by a tribal court. Id. Said the BIA:

The Tribe or parent rationally decides that seeking 

transfer of a foster-care proceeding would not support the goal 

of reunification of the Indian child with her parent(s). But once 

the State abandons this goal, and seeks to terminate parental 

rights, the Tribe’s or parent’s calculus might reasonably 

change. If time limits were imposed by moving to transfer, 

Tribes might be forced to seek transfer early in a foster-care 

proceeding, even if that outcome does not facilitate 

reunification. The [BIA] believes that this would undermine 
18

the goals and intent of ICWA, and not produce the best 

outcomes for Indian children.

For these reasons, the final rule provides that a request 

for transfer may be made at any stage within each proceeding.

Id. (Emphasis added.) 

It is critical to note that the ICWA divides cases into different phases, 

designated as proceedings (e.g., the “foster care” phase where reunification is the goal, and 

the “termination” phase where a parent’s rights will be terminated and the child placed in 

an adoptive home). See 25 C.F.R. § 23.118 (separating “foster-care proceedings” from 

“termination-of-parental-rights proceedings” for purposes of determining whether an 

individual proceeding is at an advanced stage). Thus, while the overarching length of a 

single abuse and neglect case may span many months, or even several years, the pertinent 

question is how advanced the current “proceeding” is within the case. ICWA Proc., 81 

Fed. Reg. at 38825 (“The final rule also clarifies that ‘advanced stage’ refers to the 

proceeding, rather than the case as a whole. Each individual proceeding will culminate in 

an order, so ‘advanced stage’ is a measurement of the stage within each proceeding.”). 

This means that the circuit court should not have based its decision on the fact that the case 

had been ongoing since January 2020—a span of nearly three-and-a-half years. Instead, 

the circuit court should have only considered whether the current phase, or proceeding, was 

at an advanced stage.
19

In our review of the appendix record this case has involved at least three 

individual “proceedings” as contemplated by the ICWA: (1) termination of the mother’s 

parental rights; (2) foster care during attempted unification with Respondent Father; and 

(3) termination of Respondent Father’s parental rights. The first proceeding began in 

January 2020 when I.R. was removed from her mother’s custody and the DHHR sought 

termination of the mother’s parental rights; that proceeding concluded in August 2020 

when the mother’s rights were terminated. The next proceeding encompassed the DHHR’s 

myriad efforts to unify I.R. with Respondent Father or to place her with other relatives, 

such as A.S.. That proceeding spanned approximately one year and ended in January 2022 

when the DHHR filed an amended abuse and neglect petition alleging that Respondent 

Father had abandoned the child. The next “proceeding,” i.e., termination of Respondent 

Father’s parental rights, began with the filing of DHHR’s second amended petition in 

March 2022. 

The proceeding regarding termination of the parental rights of Respondent 

Father was not at all advanced at the time the Tribe filed its motion to transfer the 

proceeding. Respondent Father had not been adjudicated; indeed, neither a preliminary 

nor adjudicatory hearing had even been scheduled. While five months passed between 

March 2022 and the Tribe’s motion to transfer in August 2022, the record reveals that those 

months were devoted to ascertaining whether the ICWA applied to this case, and not to 

any consideration of the merits of the amended petition. In short, there was nothing 

“advanced” about this proceeding when the Tribe moved to transfer. Accordingly, we 
20

conclude that the circuit court clearly erred in determining that good cause existed to deny 

transfer of this matter to the tribal court. See Syl. Pt. 4, in part, Berger, 199 W. Va. at 14-

15, 483 S.E.2d at 14-15 (explaining that a writ of prohibition may issue where the lower 

tribunal’s order is clearly erroneous as a matter of law). 

IV. CONCLUSION

For the reasons stated herein, we grant the Tribe’s petition for writ of 

prohibition and prohibit enforcement of the circuit court’s September 30, 2022, Order 

Denying Transfer. We remand this matter to the circuit court with directions to enter an 

order transferring jurisdiction in this action to the District Court of the Delaware Tribe.

Writ Granted.