Dansby v. Cullens

Filing 12

MEMORANDUM AND ORDER granting 9 Motion to Dismiss for Failure to State a Claim. Signed by District Judge Monti L. Belot on 12/17/2012.Mailed to pro se party Alisha N. Dansby by regular mail. (aa)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

ALISHA N. DANSBY,
Plaintiff,
v.
JARRETT T. CULLENS,
Defendant.

)
)
)
)
)
)
)
)
)
)

CIVIL ACTION
No.

12-1278-MLB-KGG

MEMORANDUM AND ORDER
Plaintiff’s pro se complaint asserted a right to relief under
the Indian Child Welfare Act (ICWA), 25 U.S.C. § 1901 et seq. (Doc.
1). Plaintiff, a Kern-Clifton Cherokee Indian, alleged that defendant,
her former husband, has violated a child-custody agreement from their
state court divorce proceeding. She says defendant was granted custody
of the couple’s three children in that proceeding, but he has the
children living in a foster home run by defendant’s parents and has
otherwise failed to properly care for them. Plaintiff seeks to have
the children placed in her custody.
Defendant filed a motion to dismiss the complaint, arguing the
ICWA does not apply to these facts. (Doc. 9). After plaintiff failed
to respond, the court ordered her to show cause why the case should
not be dismissed for lack of jurisdiction. (Doc. 11).

Plaintiff has

failed to respond to the court’s order to show cause.
As defendant points out, the ICWA’s foster care provisions
apply only to proceedings removing an Indian child from its parent for
temporary placement in a foster home when the parent cannot have the
child returned upon demand. 25 U.S.C. §1903(1)(i). No such facts are

alleged here. Moreover, the ICWA child custody provisions do not apply
to a placement based upon a divorce proceeding award of custody to one
of the child’s parents. See Comanche Indian Tribe of Okla. v. Hovis,
53 F.3d 298, 299 (10th Cir. 1995) (“child custody proceeding” under
ICWA does not include award

of custody to one of the parents in a

divorce proceeding).
The facts alleged in the complaint fail to show any basis for
federal

jurisdiction.

Any

request

to

alter

the

current

custody

arrangement should likely be directed to the District Court of Wallace
County, Kansas, which entered the divorce decree. See Doc. 10-1 at 3
(“The parties further understand that this agreed custody arrangement
is subject to the orders of the District Court of Wallace County,
Kansas.”).
Defendant’s Motion to Dismiss (Doc. 9) is GRANTED. The action
is dismissed without prejudice for lack of jurisdiction.
IT IS SO ORDERED.
Dated this 17th

day of December 2012, at Wichita, Kansas.

s/Monti Belot
Monti L. Belot
UNITED STATES DISTRICT JUDGE

-2-