Quinn v. Walters

• Decision Date: 06 October 1994
• Citation: 881 P.2d 795,320 Or. 233
• Parties: In the Matter of the Adoption of Loren Kyle Edgar Quinn, a Minor. Peter Gordon QUINN and Kylene Johnson Quinn, Petitioners on Review, v. Maki WALTERS, Respondent on Review. CC A91-010. CA A71493; SC S40020.
• Court: Oregon Supreme Court

Page 795

881 P.2d 795

320 Or. 233

In the Matter of the Adoption of Loren Kyle Edgar Quinn, a Minor.

Peter Gordon QUINN and Kylene Johnson Quinn, Petitioners on Review, v. Maki WALTERS, Respondent on Review.

CC A91-010.

CA A71493; SC S40020.

Supreme Court of Oregon.

Argued and Submitted Nov. 3, 1993.

Reassigned June 22, 1994.

Decided Oct. 6, 1994.

Thomas V. Dulcich, of Schwabe, Williamson & Wyatt, Portland, argued the cause for petitioners on review. With him on the petition was Mildred J. Carmack.

Craig J. Dorsay, of Meyer & Wyse, Portland, argued the cause and filed the response for respondent on review.

Before CARSON, C.J., and PETERSON, ^** GILLETTE, VAN HOOMISSEN, FADELEY, UNIS, and GRABER, JJ.

GRABER, Justice.

This is an adoption proceeding. The first issue presented is whether there was sufficient admissible evidence in the record that the child whose adoption is sought is an "Indian child" within the meaning of the Indian Child Welfare Act of 1978 (ICWA), 25 USC § 1901 et seq. ¹ If there was sufficient evidence on that point, the second issue is whether a provision of ICWA, relating to a biological parent's right to withdraw consent to the adoptive placement of an Indian child, ² On April 9, 1991, Maki Walters, then 15 years old, gave birth to a son (Child). Walters had decided during her pregnancy that she would release her child for adoption. She met the prospective adoptive parents in this case, the Quinns, in the fall of 1990, and remained in contact with them from time to time thereafter. The Quinns, who were represented by counsel, also provided Walters with a separate lawyer to advise her regarding the adoption process.

applies to the adoption of a child who did not assertedly qualify as an Indian child within the meaning of ICWA until after the child's biological mother gave what Oregon law would treat as irrevocable consent to the adoption if an Indian child were not involved. ³ We hold that there was not sufficient [320 Or. 236] admissible evidence in the record that the subject child is an Indian child within the meaning of ICWA and, accordingly, affirm the judgment of adoption without reaching the second issue.

In December 1990, the Quinns' lawyer, knowing of Walters' Cherokee heritage, inquired of the Cherokee Nation in Tahlequah, Oklahoma, whether Walters' paternal grandmother, Lela Fay Brewer Walters, was an enrolled member of that tribe. The Cherokee Nation responded by letter that neither Walters nor her named grandmother was registered with the tribe and that, therefore, the tribe "is not empowered to intervene in this matter." ⁴

On the date that Child was born, Walters executed an "Affidavit of Birth Mother" stating, among other facts, that she was the natural mother of Child. Walters also executed a "Surrender and Consent" to the adoption of Child; a "Certificate of Irrevocability and Waiver of Personal Appearance"; and a "Statement of Understanding." The assertions in the "Surrender and Consent" included the following:

"I permanently surrender and release all of my parental rights, custody, guardianship, control to and over the child to the [Quinns].

" * * * * *

"I understand that this consent will be irrevocable under the provisions of ORS 109.312(2)(a) and in any event will be irrevocable after the decree of adoption is signed."

The "Certificate of Irrevocability and Waiver of Personal Appearance" stated in part:

"I, Maki Walters, do hereby certify that I understand the Surrender and Consent to adoption executed by me * * * shall become irrevocable as set forth under ORS 109.312(2)(a) * * *."

The Statement of Understanding asserted in part "I want to permanently give my child born April 9, 1991 to the [Quinns] for adoption and I choose them to be the parents for my child.

" * * * * *

"I know that if I do not wish to sign a consent to this adoption, I can refuse and my child will remain with me.

" * * * * *

"I understand that by signing a Certificate of Irrevocability and Waiver of Personal Appearance, the Surrender and Consent will be irrevocable after the Petition for Adoption is filed and the requirements of ORS 109.312(2)(a) are fulfilled.

" * * * * *

"I have reviewed this Statement of Understanding with my attorney."

In addition, the "Affidavit of Birth Mother" signed by Walters on April 9, 1991, included the following assertion:

"I am not a member of any Indian tribe nor, to my knowledge, am I eligible for enrollment in any tribe. We contacted the Cherokee Nation several times by telephone and by letter because I believe my father's grandmother was a member of the tribe.[ ⁵ The Cherokee Nation advised that it is not empowered to intervene in this matter."

Similarly, the "Surrender and Consent" stated:

"My child is not an 'Indian child' as defined in the Indian Child Welfare Act (25 USC [s] 1901 et seq.)."

The Quinns obtained physical custody of Child on April 10, 1991. They immediately filed a petition to adopt Child and were appointed guardians of Child.

On April 22, 1991, when Child was 13 days old, Walters filed in the adoption proceeding a document entitled "Revocation of Consent to Adoption," in which she stated:

"The * * * Indian Child Welfare Act [25 USC § 1901 et seq.] does apply to the minor child in that the child's maternal great-grandfather is an enrolled and full-blooded member of the Cherokee Indian Tribe and I am now advised that I may also be an enrolled member of the said tribe."

On May 14, 1991, Walters filed a motion to dismiss the adoption proceeding. In that motion, she asserted that Child

"is an Indian Child as defined by [25 USC § 1903(4) ], and Maki Walters' consent to adoption is not valid under [25 USC § 1913]. Maki Walters may withdraw her consent at any time prior to a final decree of adoption being entered."

At a July 24, 1991, hearing, Walters offered in evidence a notarized affidavit from the Registrar of the Cherokee Nation of Oklahoma. That affidavit is dated July 22, 1991; it states that, according to tribal records, Walters and her father are "duly registered" members of the Cherokee Nation of Oklahoma. ⁶ The affidavit further states that "any biological child of Maki Olivia Walters is eligible for membership in the Cherokee Nation of Oklahoma."

The Quinns' counsel objected to the admission of that affidavit, on the ground that "it is a hearsay statement to prove the truth of the matter asserted. I am not in a position to waive any foundation or other evidentiary objections to it." The trial court overruled the objection without explanation and admitted the affidavit. The trial court also admitted, over the Quinns' hearsay objection, testimony by Walters' father that he was a member of the Cherokee Nation.

At the conclusion of the hearing, the trial court denied Walters' motion to dismiss the adoption proceeding, reasoning that Walters had not been a member of a tribe at the time she signed the irrevocable consent to adoption. On August 15, 1991, the court granted the judgment of adoption.

Walters appealed from the judgment of adoption, assigning as error the trial court's denial of her motion to dismiss the proceeding based on the applicability of ICWA. In their response, the Quinns cross-assigned as error the admission of the affidavit of the Registrar of the Cherokee Nation and the admission of testimony by Walters' father that he was a member of the Cherokee Nation.

The Court of Appeals, sitting in banc, reversed. Quinn v. Walters, 117 Or.App. 579, 845 P.2d 206 (1993). That court concluded that, under the "plain meaning" of 25 USC § 1913(c) (1988), "the consenting parent has until the entry of the final adoption or termination judgment to revoke consent to adoption. State adoption law cannot interfere with that federal right." 117 Or.App. at 582, 845 P.2d 206. On the Quinns' first cross-assignment of error, the Court of Appeals concluded that the trial court erred in admitting the affidavit of the Registrar, because that document was hearsay that was not admissible under any exception to the hearsay rule. Id. at 585, 845 P.2d 206. The court held, however, that it "cannot know whether, had the trial court made the correct ruling on the evidence issue, [Walters] could have presented other, admissible, evidence to prove [C]hild's connection with the tribe." Id. at 586, 845 P.2d 206. Concluding that it would be "grossly unfair" to deny Walters that opportunity, the court remanded the case for rehearing, excluding the inadmissible evidence. Id. at 586, 587, 845 P.2d 206. ⁷

Two judges dissented. The dissenters reasoned that ICWA does not apply to a child who has not been part of an "Indian cultural setting" and that, in any event, there was no admissible evidence that Child was an Indian child. Quinn v. Walters, 117 Or.App. at 587-93, 845 P.2d 206 (Edmonds, J., dissenting).

The Quinns petitioned for review. We allowed the petition. ⁸ We now reverse the decision of the Court of Appeals and affirm the judgment of the circuit court.

Walters gave what ordinarily would be valid, irrevocable consent to the adoption of Child, under ORS 109.312. Indeed, Walters does not argue that her consent was defective when given; she argues only that she had a later right to revoke that consent pursuant to 25 USC § 1913(c). As stated, the underlying issue in this case is whether 25 USC § 1913(c) applies to the adoption of a child who assertedly qualified as an "Indian child" within the meaning of ICWA before the entry of the final adoption judgment, but after the child's biological mother gave what Oregon law would treat as irrevocable consent to the adoption if an Indian child were not involved. If so, then "irrevocable" consent to the adoption of a child, given pursuant to ORS 109.312 in those circumstances, would not operate to prevent the biological mother from withdrawing that consent. See U.S. Const., Art. VI, cl. 2 (the Constitution of the United States, and laws of the United States made pursuant thereto, "shall be...