Baby Boy Doe, Matter of

Decision Date19 March 1993
Docket NumberNo. 19512,19512
Citation849 P.2d 925,123 Idaho 464
PartiesIn the Matter of BABY BOY DOE, A Minor Child. INDIAN TRIBE, Intervenor-Appellant, Appellant on Appeal, v. Joe DOE and Jane Doe, Petitioners-Respondents-Respondents on Appeal. Boise, November 1992 Term
CourtIdaho Supreme Court

Underwood & Steele, Chtd., Boise, for petitioners-respondents. James S. Underwood argued.

JOHNSON, Justice.

This case concerns the application of the federal Indian Child Welfare Act (ICWA), 25 U.S.C. §§ 1901-1923, to the termination of the parental rights of an Indian father and the adoption of his child by a non-Indian couple. We reverse the decision of the magistrate judge (the trial court) that ICWA does not apply to the termination proceeding and to the placement of the child. We vacate the termination order, and remand the case to the trial court for further proceedings. We also reverse the award of attorney fees by the district judge on appeal from the trial court's decision.

I.

THE BACKGROUND AND PRIOR PROCEEDINGS.

The child who is the subject of this case was born in 1989. The mother is a non-Indian and was never married to the child's father. The child's father is an enrolled member of the Indian tribe (the tribe). The father maintained no contact with the mother during her pregnancy and has had no contact with the child since the birth. Shortly after the child was born, the mother approached an adoption agency to arrange adoption of the child. Through the agency, the mother chose a non-Indian married couple (the adoptive parents) to adopt the child and placed the child in their custody. The child has remained with the adoptive parents throughout the course of this case.

After placing the child with the adoptive parents, the mother consented to voluntary termination of her parental rights and to the adoption of the child by the adoptive parents. The adoptive parents petitioned the trial court for termination of the parental rights of the child's parents. Because the mother indicated to the adoption agency At the first hearing concerning termination of the father's parental rights, the father did not appear, but a non-attorney advocate from the tribe appeared at this hearing on behalf of the father and the tribe. The non-attorney advocate asserted that the father wanted custody of the child and that the tribe wished to intervene and have the trial court transfer the proceedings to tribal court pursuant to ICWA. The trial court appointed counsel to represent the father and granted the tribe additional time to move to intervene and to seek transfer of the case to tribal court.

[123 Idaho 467] that the child's father was a member of the tribe, the adoptive parents sent the required notice of the termination proceedings to the father and the tribe pursuant to federal guidelines and ICWA.

On May 3, 1990, the trial court heard the motions to intervene and to transfer. In allowing the tribe to intervene, the trial court made an oral finding that the child was an Indian child and that ICWA governed the proceedings. This finding was based on a letter from the tribe's enrollment director indicating the father had applied to enroll the child in the tribe. The trial court stated that this letter was a determination by the tribe that the child was eligible for membership in the tribe. Because the mother filed an objection to the transfer of the case to the tribal court, the trial court rejected the transfer, as required by ICWA.

On May 21, 1990, the trial court held another hearing regarding termination of the father's parental rights. The tribe argued ICWA governed the proceedings and required the child to be placed for adoption within the tribal community. The tribe advocated placing the child with the child's paternal aunt and uncle, who lived on the reservation and wanted to adopt the child into their family. The adoptive parents argued against application of ICWA and against placing the child on the reservation, even if ICWA applied to the proceedings.

The trial court ruled that ICWA did not govern the proceedings, and terminated the father's parental rights without applying the requirements of ICWA. Although the trial court found the father was the child's natural father and was a member of the tribe, the trial court ruled that the child was not an "Indian child" as defined in ICWA, because the child was not eligible for membership in the tribe. The trial court cited guidelines published by the Bureau of Indian Affairs (BIA) as controlling. These guidelines advise state courts to treat determinations by an Indian tribe regarding eligibility for membership in the tribe as conclusive. Based on an affidavit from the enrollment director of the tribe, the trial court found that the tribe had declined to find the child was eligible for membership in the tribe and that this meant the tribe had conclusively determined the child was not eligible for membership in the tribe.

As an alternative legal theory to support its ruling that ICWA did not govern the termination proceedings, the trial court adopted an "Indian family" test as a prerequisite to application of ICWA. Under this approach, the trial court held ICWA only applied to child custody proceedings in which an Indian child is removed from an existing Indian family. The trial court reasoned that even if the child met the definition of "Indian child," ICWA does not apply where a child has never lived within the Indian community or has never been exposed to Indian culture. In this case, the trial court found the child was not being removed from an existing Indian family because the child had either lived with the non-Indian mother or the non-Indian adoptive parents since birth. The trial court also noted that the child had no contact with the father or any member of the father's family and that the father's family had not pursued a relationship with the child.

The trial court terminated the father's parental rights, and the tribe appealed to the district judge. The district judge affirmed the trial court's findings, but on different grounds from those stated by the trial court. The district judge held the child was not an Indian child because there was insufficient proof of paternity in the record to support a finding that the child The tribe appealed to this Court, asserting the application of ICWA to the termination of the father's parental rights and to the placement of the child. The tribe also asserts that regardless of the application of ICWA, the district judge improperly assessed attorney fees against the tribe.

[123 Idaho 468] was the legal child of the father. The district judge also found that the tribe brought the appeal frivolously, unreasonably, and without foundation and ordered the tribe to pay more than $8,500.00 in attorney fees pursuant to I.C. § 12-121.

II.

THE PROVISIONS OF ICWA.

In 1978 Congress passed ICWA to address concerns surrounding the high incidence of removal of Indian children from their Indian families and tribes and the placement of Indian children in adoptive or foster homes outside of their extended families, tribes and cultures. 25 U.S.C. §§ 1901, 1902. ICWA recognizes that cultural biases in child custody proceedings contribute to this problem. To promote the stability of Indian tribes and to counter cultural biases, Congress enacted ICWA to provide minimum procedural and substantive requirements which state courts must apply to child custody proceedings involving Indian children.

In order to invoke the requirements of ICWA, state courts must first determine whether the proceedings are "child custody proceedings" as defined by 25 U.S.C. § 1903(1), and whether the child involved is an "Indian child" as defined by 25 U.S.C. § 1903(4). Without dispute, the proceedings in this case are "child custody" proceedings as defined in ICWA. ICWA expressly includes termination of parental rights proceedings within the statutory definition of child custody proceedings. § 1903(1)(ii).

The basic dispute in this case is whether the child is an "Indian child" under ICWA. ICWA defines an Indian child as: "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." § 1903(4). Whether the child meets this definition is discussed in the following section.

If these prerequisites are met, ICWA supplies procedural requirements and substantive standards that must be used by the state court instead of procedures and standards under state law. Several provisions of ICWA would apply to the proceedings in this case, if ICWA were applicable. ICWA requires that Notice of the proceeding be given to the Indian parent and the Indian tribe, and that the tribe be given the opportunity to intervene in the proceedings. §§ 1911(c), 1912(a). Before terminating an Indian parent's parental rights, ICWA requires the state court to make a determination on the record that beyond a reasonable doubt termination is required to prevent serious emotional or physical damage to the Indian child. § 1912(f). In an adoption proceeding, ICWA requires the state court to give preference to placement of the child with a member of the child's extended family, with the tribe, or with another Indian family. § 1915(a). In determining whether good cause exists for placement outside of the Indian community, the state court is directed to examine the reasons given in light of "the prevailing social and cultural standards of the Indian community." § 1915(d).

III.

THE CHILD IS AN "INDIAN CHILD."

The Indian tribe asserts that the trial court misapplied federal guidelines in concluding the child is not an Indian child under ICWA, and therefore, incorrectly found ICWA did not govern the proceedings. We agree.

This appeal is taken...

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