27,869 La.App. 2 Cir. 7/6/95, Hampton v. J.A.L.

• Decision Date: 06 July 1995
• Citation: 658 So.2d 331
• Parties: 27,869 La.App. 2 Cir
• Court: Court of Appeal of Louisiana — District of US

Page 331

658 So.2d 331

27,869 La.App. 2 Cir. 7/6/95

In re James Ronald HAMPTON and Jan Harris Milz Hampton,

Applying for Adoption, Plaintiff-Appellee, v. J.A.L. (Natural Parent of the Child), Defendant-Appellant.

No. 27869-JA.

Court of Appeal of Louisiana, Second Circuit.

July 6, 1995.

Rehearing Denied Aug. 17, 1995.

Writ Denied Nov. 13, 1995.

Northwest Louisiana, Legal Services, Inc. by E. Paul Young, Steven A. Campbell, Mary Ellen Halterman, Shreveport, for appellant.

Love, Rigby, Dehan & McDaniel by Kenneth Rigby, Shreveport, for appellee.

Before SEXTON, NORRIS, LINDSAY, WILLIAMS and STEWART, JJ.

NORRIS, Judge.

J.L., the Indian mother of A.S.L., appeals a trial court judgment allowing her to withdraw her consent to adoption under the provisions of the Indian Child Welfare Act (ICWA), but denying her writ of habeas corpus and awarding sole care, custody and control of the child to the Hamptons, a non-Indian couple, subject to reasonable visitation. J.L. has assigned three errors under the ICWA. The Hamptons have answered the appeal, urging the inapplicability of the ICWA. For the following reasons, we reverse in part, affirm in part and remand.

Procedural history

On July 26, 1994, J.L., then 17 years of age, gave birth to a baby girl, A.S.L., in Shreveport. In August 1994, just after her eighteenth birthday, J.L. executed a Voluntary Act of Surrender For Adoption under state law (Title XI of the Louisiana Children's Code) irrevocably terminating her parental rights to A.S.L. Also in August, J.L. sent a letter, prepared by Mr. Hampton and signed by her, to Janet Collins, the coordinator of the Indian Child Welfare Program of the Cheyenne River Sioux Tribe, advising them she did not want the tribe involved in the matter. Consequently, the tribe explicitly declined jurisdiction over the matter. ¹ In December, the Hamptons filed a motion for a rule to terminate the alleged natural father's parental rights. Because his whereabouts were unknown, a curator ad hoc was appointed, and his parental rights to A.S.L. were subsequently terminated. In January 1995, J.L. filed a pro se affidavit demanding the return of her daughter. On January 25, 1995, Mary Halterman of Northwest Louisiana Legal Services, Inc. enrolled as counsel for J.L. On January 30, J.L. filed a notarized "Revocation of Voluntary Consent," revoking her consent to the adoption and requesting that her child be returned to her under the ICWA. In March, she filed a Motion to Dismiss Adoption Proceedings and Writ of Habeas Corpus. The Hamptons answered, maintaining that the ICWA does not apply in the instant case and that J.L. is not entitled to the return of her child under state law.

Factual evidence adduced at the hearing

J.L. is 11/16 Indian blood and is a member of her father's tribe, the Cheyenne River Sioux. She was born on the Standing Rock Sioux Reservation in South Dakota (her mother's tribe), and lived there for nine years. After her father died, she moved with her mother and siblings off the reservation. Except for a short two-week stay with her aunt at Standing Rock in November 1994, she has not lived on a reservation since.

J.L. had a tumultuous childhood marked by alcoholism and violence. When J.L. was not in juvenile detention centers or rehabilitation centers for drug and alcohol abuse, she lived with her mother and stepfather. Her mother, also an alcoholic, was often verbally abusive; she has been in jail in the past. Her stepfather has a record of criminal convictions and has been in and out of jail periodically. Her maternal grandfather is also an alcoholic, has lived with them in the past, and was convicted as recently as May of 1994 for drunk and disorderly conduct. The majority of J.L.'s brothers and half brothers, some of whom lived with her and her mom and stepfather, have engaged in criminal activity; most have been convicted and either have served or are presently serving time in jail or state detention centers. J.L.'s criminal history began at age 15 when she stabbed her stepbrother with a knife. She admits to using crack cocaine in November 1993 and abusing alcohol and drugs (marijuana) as late as December 1994. She is currently on welfare and living with her mother in Minneapolis; she has never been able to maintain employment. Recently, she was also diagnosed with Myasthenia Gravis, which causes severe respiratory difficulty and occasionally unconsciousness necessitating hospitalization, and renders work difficult if not impossible.

After learning she was pregnant, J.L. decided to put the baby up for adoption. Her friend and sponsor in Alcoholics Anonymous, Susan Schloss, found a family, the Hamptons, to adopt the baby. The Hamptons live in Bossier City, Louisiana. J.L. met with the Hamptons and agreed to the adoption. The day after A.S.L. was born, she allowed the Hamptons to take custody; the child has remained with the Hamptons ever since. A.S.L.'s paternity has never been conclusively established. J.L. testified at the hearing that the father is Indian, despite her sworn affidavit that the father was "unknown," and statements to her legal counsel and the Schlosses in the past that she believed a non-Indian man was the father. J.L. admitted that either man could be the father. The alleged father has had no contact with the child; neither his Indian descent nor any tribal membership has ever been established. However, A.S.L. is eligible to enroll in the tribe based on her mother's membership.

Reasons for judgment

After a two-day hearing in late March, the trial court rendered its decision and explained its reasons in open court. A formal written judgment was subsequently filed. The court determined that the ICWA applied based on the Act's definition of an "Indian child." The Act, specifically 25 U.S.C. § 1913(c), allows J.L. to withdraw her consent to the adoption for any reason until a final decree of adoption is rendered. As no final decree had been rendered, the court found that J.L. was entitled to withdraw her Voluntary Act of Surrender For Adoption.

Nevertheless, the court found another provision, § 1916, necessitated a best interest determination before returning custody to J.L., and noted its inherent authority to consider the child's best interest. The court apparently considered state law as well in weighing the best interest issue. Based on the evidence presented at trial, the court concluded that A.S.L.'s best interest would be served by remaining in the custody of the Hamptons. In addition, the court determined it had been shown beyond a reasonable doubt that the continued custody by J.L. would result in serious emotional or physical damage to the child. Consequently, the court rejected and dismissed J.L.'s petition for writ of habeas corpus and awarded the Hamptons sole care, custody and control of A.S.L., subject to reasonable visitation by J.L. at the Hamptons' residence by agreement of the parties. The judgment also reflected J.L.'s request at trial to dismiss her motion to dismiss the adoption proceedings, and the court's ruling dismissing the motion with prejudice.

J.L. appeals that portion of the judgment denying the return of A.S.L. to her and granting sole custody to the Hamptons. Specifically she urges the trial court erred in failing to comply with the clear mandate of § 1913(c), improperly relying on § 1916 to deny the return of custody, and finally, failing to apply the child placement preferences in § 1915(a). The Hamptons answered the appeal, seeking reversal of the judgment insofar as the trial court found the ICWA applied and it allowed J.L. to withdraw her Voluntary Act of Surrender For Adoption. They contend the ICWA is inapplicable because this adoption proceeding does not involve the "breakup of an Indian family," the concern Congress sought to eliminate by the Act.

Discussion

Before we can address J.L.'s arguments under the ICWA, we must first determine whether the Act applies in the instant case. The issue is one of first impression in Louisiana.

The enactment of the ICWA in 1978 stemmed from the rising concern in the mid-1970's over "abusive child welfare practices that resulted in the separation of large numbers of Indian children from their families and tribes through adoption or foster care placement, usually in non-Indian homes." Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 32, 109 S.Ct. 1597, 1600, 104 L.Ed.2d 29 (1989). Hearings before the Senate Select Committee on Indian Affairs focused not only on the harm to Indian parents and their children involuntarily separated from their families, but also on the impact that massive removal of Indian children had upon the Indian tribes themselves. Holyfield, supra.

Culturally, the chances of Indian survival are significantly reduced if our children, the only real means for the transmission of the tribal heritage, are to be raised in non-Indian homes and denied exposure to the ways of their People. Furthermore, these practices seriously undercut the tribes' ability to continue as self-governing communities.

Holyfield, supra, (quoting Hearings on S. 1214 before the Subcommittee on Indian Affairs and Public Lands of the House Committee on Interior and Insular Affairs, 95th Cong., 2d Sess., at 193 (1978)).

In enacting the ICWA, Congress expressly declared its policy "to protect the best interests of Indian children and to promote the stability and security of Indian tribes and families by the establishment of minimum Federal standards for the removal of Indian children from their families." 25 U.S.C. § 1902. This policy is obviously based on Congress' findings:

[t]hat an alarmingly high percentage of Indian families are broken up by the removal, often unwarranted, of their children from them by nontribal public and private agencies and that an alarmingly high percentage of such children are placed in non-Indian foster and adoptive homes and institutions; and that the States, exercising their...