Adoption of Crews, Matter of
| Decision Date | 05 March 1992 |
| Docket Number | No. 57975-0,57975-0 |
| Citation | 118 Wn.2d 561,825 P.2d 305 |
| Parties | In the Matter of the ADOPTION of Infant Boy CREWS, a minor. Tammy Lee CREWS, Petitioner, v. HOPE SERVICES, Prospective Adoptive Parents, Charles Bertiaux, biological father, Respondents. |
| Court | Washington Supreme Court |
Goodwin, Grutz & Scott, Daniel R. Fjelstad, Seattle, for petitioner Crews.
Mary Parks, Seattle, for petitioner Choctaw Nation.
McGavick, Graves, Beale & McNerthney, Edward R. Lindstrom, Tacoma, Andrew L. Benjamin, Dubuar, Lirhus & Engel, Albert G. Lirhus, Seattle, for respondents.
Michele Hinz, Auburn, for guardian ad litem.
Richard M. Kilmer, Edmonds, on behalf of Northwest Intertribal Court System, amicus curiae for petitioners.
Kenneth O. Eikenberry, Atty. Gen., Lee Ann Miller, Senior Counsel, Seattle, amicus curiae for petitioners.
Tammy Crews (Crews) began dating Charles Bertiaux in May 1986 and learned she was pregnant in August 1988. At that time, Crews was single, 22 years old and living with her parents, Weldon and Arlene Crews, in Seattle, Washington, where she grew up. In considering the possible adoption of the baby, Crews contacted Hope Services, a private adoption agency, in September 1988.
During the following months, Crews received counseling from Mary Struck, a Hope Services counselor. After much consideration, including reading literature, talking with other birth mothers, and consulting her parents, Bertiaux's parents, friends, a clergyman, and various relatives, Crews elected to place her baby for adoption. Crews and Bertiaux then selected the adoptive parents, Rick and Sharon Shaffer, met with them on several occasions, and made assurances to the Shaffers that they were resolute in their decision to place the baby for adoption.
In preparation for the adoption, Struck asked Crews and Bertiaux whether either of them had any Indian ancestry. There is a dispute in the record regarding the content of the conversations between Crews and Struck relating to information about the baby's Indian ancestry.
Crews submitted an affidavit alleging that Struck asked her if she had any Indian blood. Crews alleges she told Struck that she did have Indian blood, "but ... didn't know how much." In her affidavit, Struck stated:
The issue of ethnic heritage was discussed and it was clear to me [Mary Struck] that the Indian Child Welfare Act did not apply. [Crews] was not a member of a tribe and in fact could not name any Indian tribes in her heritage.
Bertiaux submitted an affidavit alleging that Crews stated "she was not sure if she had any Indian blood or how much" and " 'even if there is some [Indian blood on her mother's side], it isn't enough to make a difference.' " Bertiaux also alleges that Crews stated, "her father's heritage is 'mainly all German' " and "that is why the paperwork says N/A for the mother's side and German for her father's side." There is no allegation that Crews or Bertiaux had or conveyed to Struck any information as to their membership or affiliation with any specific tribe.
The adoption proceeded according to Washington voluntary relinquishment and adoption law and on May 1, 1989, approximately 2 weeks before the baby was due, Crews signed a "Consent To Termination/Adoption and Waiver of Right To Receive Notice of All Proceedings". This form provides that the Indian Child Welfare Act of 1978 (ICWA) (25 U.S.C. § 1901 et seq.) was not applicable to the proceedings. The form also states the consent would not be effective until approved by the court which could occur no earlier than 48 hours after Crews signed the form or the baby was born, whichever was later. Once the consent was approved by the court, the consent could not be revoked except for fraud, duress or lack of mental competency.
Baby boy B. was born at 1:15 p.m. on May 22, 1989. On May 24, 1989, the "Order Approving Relinquishment, Terminating Parent-Child Relationship and Granting Temporary Custody" was filed, Crews was discharged, and the Shaffers took B. home.
Thereafter, Crews contacted Struck requesting the return of her baby. There is a dispute as to whether this conversation took place on May 26 or May 30. Despite the request, B. remained with the Shaffers. Crews continued her attempt to reinstate her parental rights, and in late June 1989, she contacted the Department of Social and Health Services. Crews also sent a letter to the Bureau of Indian Affairs in Portland to obtain an outline of her family's Indian ancestry. On July 28, 1989, DSHS informed Crews that she "may have a claim" that B. was of Indian descent. CP, at 70. DSHS advised that the adoption not be finalized until the Cherokee Nations of North Carolina and Oklahoma and the Choctaw and Umatilla Bands/Tribes had been contacted by Hope Services and Crews.
Hope Services contacted the tribes. The Choctaw Nation of Oklahoma responded, by letter dated July 11, 1989, that no "Certificate of Degree of Indian Blood" (CDIB) had been issued to Crews. Apparently, no responses were received from the Umatilla Tribe or the Cherokee Nations.
On August 9, 1989, the Choctaw Nation of Oklahoma responded to Weldon Crews' claim that he was a lineal descendant of one of the original enrollees of the tribe. The Director of the Indian Child Welfare Program for the Choctaw Nation confirmed Weldon Crews' ancestry and concluded:
[B.] is eligible for enrollment with the Choctaw Nation of Oklahoma therefore the Indian Child Welfare Act will apply to this child.
On August 30, 1989, Crews filed a petition to vacate the order terminating her parental rights and to provide for visitation or a return of custody. Crews attempted to revoke her consent alleging it was obtained in violation of ICWA and/or the result of fraud, duress, or lack of mental competency. The claims for fraud, duress, and lack of mental competency were subsequently dismissed with prejudice by stipulation of counsel.
On September 20, 1989, Brenda Hampton, the Director of Tribal Membership for the Choctaw Nation, notified the attorney for Hope Services that a CDIB was issued to Crews as of September 19, 1989.
On October 25, 1989, Crews testified in a deposition that she was unaware of her Choctaw blood until after B. was born and had only researched her heritage in order to reinstate her parental rights. Crews also testified that her family does not regularly participate in any Indian practices or events. On November 13, 1989, the trial court granted summary judgment to Hope Services and dismissed Crews' petition to invalidate the termination of her parental rights. The court held ICWA was inapplicable to invalidate the May 24 termination order because B. was not an "Indian child" under ICWA until September 19 when the CDIB was issued. The court rejected Crews' further contention that application of the state termination/adoption procedures deprived her of due process of law. Crews appealed.
On December 19, 1989, the adoption of B. by the Shaffers became final.
On March 28, 1990, the Court of Appeals granted the Choctaw Nation's motion to intervene. The Choctaw Nation contends that both Crews and B. have been members of the Choctaw Nation since birth based upon article 2, section 1 of the Choctaw Constitution, which provides:
The Choctaw Nation shall consist of all Choctaw Indians by blood whose names appear on the final rolls of the Choctaw Nation approved pursuant to Section 2 of the Act of April 26, 1906 (34 Stat. 136) and their lineal descendants.
The Court of Appeals affirmed the trial court and held that B. did not become an Indian child under ICWA until September 19, 1989, and therefore ICWA was not applicable on May 24, 1989, when the court approved the termination of Crews' parental rights. See In re Adoption of Crews, 60 Wash.App. 202, 209-10, 803 P.2d 24 (1991).
Crews and the Choctaw Nation petitioned for review. The Northwest Intertribal Court System and the Attorney General on behalf of DSHS filed amicus curiae briefs supporting Crews' position. Crews' parents were denied permission to intervene on appeal and to file an amicus curiae brief. The Shaffers, Hope Services and Bertiaux oppose the petition. We affirm.
This is the first opportunity the court has had to address the application of the Indian Child Welfare Act of 1978, 25 U.S.C. § 1901 et seq. We undertake this task with a profound understanding of the immediate and long-lasting consequences of our decision, not only for B., but for all the parties in this case.
The issue is whether ICWA applies to invalidate a final decree terminating parental rights properly entered under state law. The parties and the Court of Appeals have focused upon the date at which B. met the definition of "Indian child" under ICWA as determinative. Thus, the arguments before this court centered upon when B. became a member or was eligible for membership in an Indian tribe. See 25 U.S.C. § 1903(4). We do not believe, however, that this is the decisive issue. Regardless of B.'s tribal membership or lack thereof, after careful consideration of ICWA and its legislative history, we are convinced that ICWA was not intended to apply in the situation presented by the specific facts of this case.
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. See Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 32, 109 S.Ct. 1597, 1599, 104 L.Ed.2d 29 (1989). Surveys conducted in 1969 and 1974 by the Association on American Indian Affairs showed that 25 to 30 percent of Indian children were being separated from their families and that fully 85 to 90 percent of these children were being placed in non-Indian foster care, adoptive homes, or institutions. H.R.Rep. No. 95-1386, 95th Cong., 2d Sess., at 9 (1978), reprinted in 1978 U.S.C.C.A.N. 7530, 7531. These separations and placements were found to be...
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