Adoption of Baby Boy L., Matter of

• Decision Date: 03 April 1982
• Docket Number: No. 53592,53592
• Citation: 643 P.2d 168,231 Kan. 199
• Parties: In the Matter of the ADOPTION OF BABY BOY L.
• Court: Kansas Supreme Court

Page 168

643 P.2d 168

231 Kan. 199

In the Matter of the ADOPTION OF BABY BOY L.

No. 53592.

Supreme Court of Kansas.

April 3, 1982.

Syllabus by the Court

1. The Indian Child Welfare Act of 1978, 25 U.S.C. § 1901 et seq. (Supp. III 1979), was enacted by Congress 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 and the placement of such children in foster or adoptive homes which will reflect the unique values of Indian culture, and by providing for assistance to Indian tribes in the operation of child and family service programs.

2. The overriding concern of Congress and the proponents of the Indian Child Welfare Act was the maintenance of the family and tribal relationships existing in Indian homes and to set minimum standards for the removal of Indian children from their existing Indian environment.

3. In adopting the Indian Child Welfare Act, it was not the intent of Congress to dictate that an illegitimate child who has never been a member of an Indian home or culture, and probably never would be, should be removed from its primary cultural heritage and placed in an Indian environment over the express objections of its non-Indian mother.

4. The underlying thread that runs throughout the entire Indian Child Welfare Act is that the Act is concerned with the removal of Indian children from an existing Indian family unit and the resultant breakup of the Indian family.

5. The Indian Child Welfare Act principally applies to cases where a state court or agency attempts to remove an Indian child from his or her Indian home on grounds of the alleged incompetence or brutality of the parents.

6. It is elementary that the law and the courts do not require citizens and litigants to perform useless acts and be subjected to useless court proceedings when there is no possibility of any positive result for anyone.

7. In the construction of statutes, the courts start with the assumption that the legislature or the Congress intended to enact an effective law, and the legislature or Congress is not to be presumed to have done a vain thing in the enactment of a statute. Hence, it is a general principle that the courts should, if reasonably possible to do so, interpret the statute, or the provision being construed, so as to give it efficient operation and effect as a whole.

8. A construction of a statute should be avoided which would render the application of the statute impracticable, or inconvenient, or which would require the performance of a vain, idle, or futile thing, or attempt to require the performance of an impossible act.

9. Based upon the facts of this case, as set forth in the opinion, the trial court did not commit error in determining that the Indian Child Welfare Act of 1978, 25 U.S.C. § 1901 et seq., did not apply to the adoption proceedings in this action.

10. The irrevocability of a consent under K.S.A. 59-2102 applies to disputes between a natural parent or parents and the prospective adoptive parents and the consent, when withdrawn, is not binding on the consenting parent in a custody dispute between the natural parents. Following Treiber v. Stong, 5 Kan.App.2d 392, Syl. P 3, 618 P.2d 114 (1980).

11. In examining the constitutionality of any statute we start with the proposition that the constitutionality of a statute is presumed; that all doubts must be resolved in favor of its validity, and before the statute may be stricken, it must clearly appear the statute violates the Constitution. It is the court's duty to uphold the statute under attack, if possible, rather than defeat it. If there is any reasonable way a statute may be construed constitutionally permissible, that should be done. Following Board of Greenwood County Comm'rs v. Nadel, 228 Kan. 469, Syl. P 1, 618 P.2d 778 (1980).

12. A statute, apparently valid upon its face, may be unconstitutional in its application to a particular set of facts, circumstances or classifications. Following Flax v. Kansas Turnpike Authority, 226 Kan. 1, Syl. P 6, 596 P.2d 446 (1979).

13. A statute apparently void on its face may be constitutional when construed and limited in such a way as to uphold its constitutionality by reading the necessary judicial requirements into the statute.

14. The application of K.S.A. 59-2102(2) in not requiring the consent of the father to the adoption of his illegitimate child under factual situations comparable to those in Caban v. Mohammed, 441 U.S. 380, 99 S.Ct. 1760, 60 L.Ed.2d 297 (1979), would under the pronouncements of the United States Supreme Court, be unconstitutional as an infringement upon the father's due process and equal protection guarantees under the Fourteenth Amendment.

15. When the father of an illegitimate child has been found to be unfit after proper notice and hearing, the granting of an adoption of the child over the father's objections and without his consent, pursuant to K.S.A. 59-2102(2), is constitutional and does not constitute a violation of the due process and equal protection guarantees of the Fourteenth Amendment.

16. K.S.A. 59-2102(2), when limited as more fully set forth in the opinion and as applied to the facts of this case, is constitutional and is not violative of the appellant Perciado's due process and equal protection guarantees under the Fourteenth Amendment to the United States Constitution.

Pamela S. Fahey, of Native American Law Project, Legal Services of Northeast Kansas, Horton, and Bertram E. Hirsch, Floral Park, N. Y., argued the cause, and Susan Ellis, Legal Aid Society of Wichita, Inc., and Ross A. Hollander, Wichita, were with them on the brief for appellants.

Randall H. Elam, Wichita, argued the cause, and Vincent L. Bogart, of Vincent L. Bogart, Chartered, Wichita, argued the cause and was on the brief for appellees.

Jan Goslin, was on the brief in pro. per. for the amicus curiae, Four Tribes Children's Program.

HOLMES, Justice:

This is an appeal from sundry trial court rulings and findings and from a decree of adoption entered by the Sedgwick County District Court. Carmon Perciado (Perciado), the putative father of Baby Boy L., an infant born out of wedlock, Quelin and Ernestine Perciado, the baby's paternal grandparents, and the Kiowa Tribe of Oklahoma, are the appellants. The adoptive parents are the appellees. The baby is the illegitimate son of Miss L., a non-Indian and the appellant, Carmon Perciado, a five-eighths by blood relationship Kiowa Indian duly enrolled as a member of the Kiowa Tribe. The appellants contend that the trial court erred in determining that the provisions of the Indian Child Welfare Act of 1978 (ICWA or the Act), 25 U.S.C. § 1901 et seq. (Supp. III 1979), were not applicable to the adoption proceeding and in the alternative assert that if the Act does not apply then the adoption is invalid under state law.

Due to the involved procedural aspects of this case, it is necessary that we set forth the facts in some detail. Baby Boy L. was born at Wichita, January 29, 1981. On the same date his natural mother, an unmarried non-Indian woman, executed a consent to the adoption specifically directed and limited to the adoptive parents named in the consent. The appellees filed their petition for adoption along with the mother's consent the same day and the court entered an order granting them the temporary care and custody of the child. It is not disputed that the appellant Perciado is the father of the child. Notice of the adoption proceedings and time of hearing was personally served on Perciado at the Kansas State Industrial Reformatory where he was incarcerated and upon the State Department of Social and Rehabilitation Services (SRS).

On March 6, 1981, Perciado filed an affidavit of indigency and the court appointed representatives of the Legal Aid Society of Wichita, Inc., to represent him. On March 9, 1981, appellees filed an amendment to their adoption petition alleging Perciado was "an unfit person to have or assume or be given parental responsibilities" and asked that his parental rights be terminated and severed. On March 11, 1981, SRS filed its report recommending the granting of the adoption. On March 25, 1981, Perciado filed an answer to the amended petition asking that the adoption be denied, that he be found a fit and proper person, that his parental rights not be severed and that he be given permanent custody of his son.

On March 30, 1981, the matter was called for trial and the court ruled that it would bifurcate the proceedings and proceed first with the determination of the fitness of the father and whether his parental rights should be severed, and second, with the adoption itself. No objection to this procedure was made by Perciado, who was present in person (having been transported from the Kansas State Industrial Reformatory), or by his counsel, and evidence was introduced on behalf of appellees and by Perciado. Eight witnesses testified on behalf of the appellees and Perciado presented one witness at which time the trial was recessed until April 1, 1981. On April 1, 1981, it was brought to the court's attention that Perciado was an enrolled member of the Kiowa Tribe and that the federal Indian Child Welfare Act of 1978 might apply, and therefore the case was continued for thirty days to allow proper notice to be given to the Kiowa Tribe. Thereafter, notice was given to the Kiowa Business Committee at Anadarko, Oklahoma. On April 14, 1981, an amended or supplemental consent to the adoption was filed by the baby's mother. This consent was also limited strictly to the named appellees. On May 7, 1981, Perciado, through the Legal Aid Society, filed an amended answer in which he alleged that the ICWA applied to the proceedings and asked, among other things, that the child be placed with a member of its extended family, or other members...