Adoption of M., Matter of

• Decision Date: 16 July 1992
• Docket Number: No. 14009-8-II,14009-8-II
• Citation: 66 Wn.App. 475,832 P.2d 518
• Parties: In the Matter of ADOPTION OF M., John DOE, et al., Respondents, v. NAVAJO NATION, Intervenor/Appellant.
• Court: Washington Court of Appeals

Page 475

66 Wn.App. 475

832 P.2d 518

In the Matter of ADOPTION OF M.,

John DOE, et al., Respondents, v. NAVAJO NATION, Intervenor/Appellant.

No. 14009-8-II.

Court of Appeals of Washington,

Division 2.

July 16, 1992.

Craig J. Dorsay, Meyer & Wyse, Portland, Or., for intervenor/appellant.

John R. Fox, Battle Ground, for respondents.

MORGAN, Judge.

The Navajo Nation appeals from a determination that the Indian Child Welfare Act (ICWA), 25 U.S.C. §§ 1901-63, does not apply to this case. Holding that the Act applies, we reverse and remand.

The subject of the proceedings is M, a child born out of wedlock in December, 1989. M was not born on the Navajo reservation, and she has never been a resident or domiciliary of the reservation.

M's biological parents are A and K. K is non-Indian. A is a full-blooded Navajo and an enrolled member of the Navajo Nation. Born in 1964, he lived on the reservation until about 1972, when his mother placed him in foster care. A church social service agency then arranged for his permanent placement in a non-Indian home in Washington, and he lived there for the remainder of his youth.

A, K, or both selected a married couple, Mr. and Ms. J, to be M's adoptive parents. Neither of the J's is Indian within the meaning of the Act, although Ms. J has one-quarter Indian blood.

Shortly after M's birth, the J's filed a petition for adoption with the Clark County Superior Court. They were granted temporary custody, and M has been in their care since release from the hospital in December, 1989.

On January 19, 1990, A and K each executed a written consent to adoption and waiver of right to further notice before the trial court. The trial court found that each of them understood the consequences of their actions, but no order terminating parental rights was entered at that time.

On March 7, 1990, the Navajo Nation moved to intervene. ¹ It asked that M be placed with her paternal aunt, who is Navajo and lives on the reservation. ² Both A and K vehemently opposed placing M on the reservation. They even threatened to withdraw their consent to adoption if necessary to prevent such a placement. See 25 U.S.C. § 1913(c); 25 U.S.C. § 1916(a); A.B.M. v. M.H., 651 P.2d 1170 (Alaska 1982), cert. denied, 461 U.S. 914, 103 S.Ct. 1893, 77 L.Ed.2d 283 (1983).

On May 24, 1990, the trial court ruled that ICWA did not apply and entered written findings stating in part:

3.7. The ICWA was not intended to apply to a situation as we have here, to a child who was born off the reservation to a Non-Indian mother and an Indian father, who was long removed from the reservation. This is not the break up of an Indian family as contemplated when the ICWA was adopted by Congress.

3.8. We cannot ignore the rights of the natural parents, and we must be sensitive to the best interests of the child. Both parents were very vocal in not wanting their child to be raised on the reservation. Both parents advised the court they wished the Petitioners to adopt the child.

On the same date, the trial court also signed (1) an order terminating A's and K's parental rights and (2) a final decree of adoption in favor of J's. The Navajo Nation appealed the decree of adoption; no one appealed the order terminating parental rights.

According to the express language of ICWA, its applicability turns on two criteria. As the Arizona Court of Appeals stated in In re Appeal in Maricopa County Juvenile Action No. A-25525, 136 Ariz. 528, 531, 667 P.2d 228, 231 (Ct.App.1983):

There are two prerequisites to invoking the requirements of the ICWA. First, it must be determined that the proceeding is a "child custody proceeding" as defined by the Act. Id. § 1093(1). Once it has been determined that the proceeding is a child custody proceeding, it must then be determined whether the child is an Indian child. Id. § 1903(4), (9).

See also In re Appeal in Coconino County Juvenile Action No. J-10175, 153 Ariz. 346, 736 P.2d 829, 832 (Ct.App.1987); A.B.M. v. M.H., 651 P.2d at 1172; Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 42, 109 S.Ct. 1597, 1600, 104 L.Ed.2d 29, 42 (1989) (Supreme Court applied jurisdictional provisions of ICWA after determining that proceeding was child custody proceeding and that child was Indian child).

According to the express language of ICWA, a child custody proceeding is any action resulting in termination of the parent-child relationship, 25 U.S.C. § 1903(1)(ii), and any action resulting in a final decree of adoption. 25 U.S.C. § 1903(1)(iv). Here, the proceedings meet this definition, for their object is a final decree of adoption.

According to the express language of ICWA, an Indian child is any unmarried person under 18 who is either (a) a member of an Indian tribe or (b) eligible for membership in an Indian tribe and the biological child of a member of an Indian tribe. 25 U.S.C. § 1903(4). Here, it is undisputed that M meets this definition.

According to the express language of ICWA, there are two situations in which it does not apply, notwithstanding the existence of the criteria just discussed. One is when placement is based on an act of juvenile delinquency, and the other is when placement is based on an award of custody to a parent in a divorce proceeding. 25 U.S.C. § 1903(1); In re S.B.R., 43 Wash.App. 622, 625, 719 P.2d 154 (1986). Neither of these situations is present here.

But for In re Adoption of Crews, 118 Wash.2d 561, 825 P.2d 305 (1992), we would conclude at this point that the Act applies. However, Crews requires further analysis.

In Crews, a mother consented to termination of her parental rights and adoption of her child. She also signed a consent/adoption form stating that the ICWA was not applicable. The Superior Court entered an order terminating her parental rights on May 24, 1989.

On September 19, 1989, the mother secured, for the first time, a Certificate of Degree of Indian Blood (CDIB) from the Choctaw Nation. Using the CDIB, she then sought to withdraw her consent and invalidate the order terminating her parental rights on grounds that ICWA had been violated. The trial court granted summary judgment against her. It reasoned that ICWA could not be applicable before a child met the definition of "Indian child"; that Crews' child did not meet the definition of "Indian child" until the CDIB was issued in September; and that the termination order entered several months earlier was therefore valid. The Court of Appeals affirmed for the same reasons.

The Supreme Court also affirmed, but for different reasons. Apparently assuming that ICWA's definitions of "child custody proceeding" and "Indian child" had been met, the court reasoned that "whether or when a child meets the definition of "Indian child" under ICWA is not controlling," 118 Wash.2d at 571, 825 P.2d 305 and that ICWA "was not intended to apply in the situation presented by the specific facts of this case." 118 Wash.2d at 567, 825 P.2d 305. It explained:

In this case, however, Crews and the Choctaw Nation ask this court to apply ICWA when B. has never been a part of an existing Indian family unit or any other Indian community. Neither Crews nor her family has ever lived on the Choctaw reservation in Oklahoma and there are no plans to relocate the family from Seattle to Oklahoma. Bertiaux, B.'s father, has no ties to any Indian tribe or community and opposes B.'s removal from his adoptive parents. Moreover, there is no allegation by Crews or the Choctaw Nation that, if custody were returned to Crews, B. would grow up in an Indian environment. To the contrary, Crews has shown no substantive interest in her Indian heritage in the past and has given no indication this will change in the future.

While B. may be an "Indian child" based on the Choctaw Constitution, we do not find an existing Indian family unit or environment from which B. was removed or to which he would be returned. To apply ICWA in this specific situation would not further the policies and purposes of ICWA. Consequently, we hold ICWA does not apply to invalidate Crews' voluntary termination of her parental rights and consent to adoption. ³

118 Wash.2d at 569, 825 P.2d 305.

Crews clearly states that there are some cases in which ICWA will be deemed to be inapplicable even though its express provisions have been met--in other words, even though the proceeding is a "child custody proceeding" and the child is an "Indian child". Crews does not identify clearly, however, which cases those will be. Arguably, it says that the Act will be inapplicable when an Indian child is not being removed from an "existing Indian family unit" (118 Wash.2d at 569, 825 P.2d 305), an "Indian community" (118 Wash.2d at 569, 825 P.2d 305), an "Indian environment" (118 Wash.2d at 569-70, 825 P.2d 305), or an "Indian cultural setting" (118 Wash.2d at 571, 825 P.2d 305). Arguably and alternatively, it says that the Act will be inapplicable when an Indian child would not "grow up in an Indian environment" even if preferential placement were effected according to the Act. 118 Wash.2d at 569-71, 825 P.2d 305. Arguably and again alternatively, it says that the Act will be inapplicable when an Indian child is not being removed from an Indianenvironment and would not grow up in an Indian environment even if preferential placement were effected according to the Act.

Lacking clear guidance, we hold that Crews does not affect this case for two reasons. First, the Crews court said:

ICWA was enacted to counteract the large-scale separations of Indian children from their families, tribes, and culture through adoption or foster care placement, generally in non-Indian homes.... These separations and placements were found to be largely unwarranted resulting from a failure by child welfare services to understand the cultural differences in Indian child-rearing practices and other social and economic factors of Indian life....

118 Wash.2d at 567, 825 P.2d 305. Although that was not the...