Adoption of Riffle, Matter of, 95-132
| Decision Date | 13 September 1995 |
| Docket Number | No. 95-132,95-132 |
| Parties | In the Matter of the ADOPTION OF Jessica Lynn RIFFLE. |
| Court | Montana Supreme Court |
Monte J. Boettger, Lewistown, Ann Gilkey, Department of Family Services, Helena, and Ronald Arneson, Billings, for appellants.
Jerrold Nye, Billings, for respondents.
Appellants John Garlick, Montana Department of Family Services and Turtle Mountain Band of Chippewa appeal the decision of the Tenth Judicial District Court, Fergus County, granting the petition of respondents Kenneth and Clara Siroky for adoption of Jessica Lynn Riffle. We reverse and remand.
We find the following issue dispositive on appeal:
Did the District Court err in determining that Jessica was not an "Indian child" pursuant to the Indian Child Welfare Act (ICWA)?
The facts relevant to the issue addressed in this opinion are as follows: Jessica Lynn Riffle (Jessica) was born on July 14, 1988, to Mary Garlick Riffle and Gary D. Riffle. Jessica is 1/8 Chippewa Indian. Jessica's natural parents struggled with alcohol and drug abuse as well as domestic violence. These problems made it difficult for her parents to properly care for Jessica. Jessica spent much time with her extended family, including her grandmother, Dorothy Garlick and her uncle, John Garlick.
In May 1990 the Montana Department of Family Services (DFS) removed Jessica from her mother's care and placed her in the foster care of Kenneth and Clara Siroky. DFS returned Jessica to her mother in December of 1990. DFS again removed Jessica from her mother's care in June 1991 and returned her to the foster care custody of the Sirokys where she has remained.
On August 4, 1992, the Turtle Mountain Band of Chippewa (the Tribe) was notified of the impending termination of Mary Riffle's parental rights. The Tribe was again notified on December 16, 1992. The Tribe took no immediate action. On September 28, 1993, the Tenth Judicial District Court terminated Mary and Gary Riffle's parental rights and awarded DFS permanent custody of Jessica.
DFS commenced adoption proceedings, seeking to find a suitable adoptive parent for Jessica. John Garlick sought custody of Jessica and on May 5, 1993, petitioned for her adoption. DFS concluded that John Garlick was a suitable adoptive parent and consented to his adoption of Jessica. On May 3, 1994, the Sirokys petitioned the court for Jessica's adoption. On May 26, 1994, shortly before John was to receive custody of Jessica, the Sirokys obtained a temporary restraining order preventing Jessica's removal from their custody.
On May 15, 1994, prior to the District Court's determination of Jessica's custody, the Tribe moved the court's permission to intervene in the proceedings. On May 20, 1994, the court preliminarily granted the Tribe's motion. However, on July 27, 1994, the court adopted the Bureau of Indian Affairs' (BIA) opinion that Jessica was not an "Indian child" pursuant to ICWA and therefore ICWA did not apply to these proceedings.
On November 14 and 15, 1994, the District Court heard the arguments of petitioner John Garlick and petitioners Kenneth and Clara Siroky concerning their respective desires to adopt Jessica. On December 12, 1994, the District Court issued its findings of fact, conclusions of law, and order granting the Sirokys' petition for adoption. John Garlick, DFS and the Tribe appeal the decision of the District Court.
Did the District Court err in determining that Jessica was not an "Indian child" pursuant to ICWA?
In its July 27, 1994, order, the District Court concluded that Jessica was not an "Indian child" pursuant to ICWA and, therefore, the provisions of ICWA were not applied to these proceedings. The court concluded that the Tribe was given the opportunity to intervene in these proceedings, yet failed to indicate whether it considered Jessica eligible for tribal membership. The court proceeded to conclude that the BIA's determination that Jessica was not eligible to become a member of the Tribe was conclusive. The court held that, even if the Tribe was allowed to intervene later in the proceedings, the BIA's determination could not be rebutted. In reference to the BIA's determination that Jessica lacked sufficient blood quantum to be considered for Tribal membership, the court stated:
It is significant that the Bureau's determination is in the present tense. That is because the disqualifying act "insufficient blood quantum", that is, not enough Indian blood, is an objective, permanent condition. It is not a condition based upon procedural steps or missteps or nonsteps of the parties.
The court reiterated its conclusion that Jessica was not eligible for membership in the Tribe and therefore not an "Indian child" in its December 12, 1994 findings of fact and conclusions of law concerning the parties' respective petitions for adoption. We review district court conclusions of law to determine whether the court's interpretation of law was correct. Steer, Inc. v. Dep't of Revenue (1990), 245 Mont. 470, 474, 803 P.2d 601, 603.
ICWA contains a policy statement that encourages tribal input and participation in custody proceedings involving Indian children. Title 25 U.S.C. § 1902 states:
The Congress hereby declares that it is the policy of this Nation 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.
One of the "minimum federal standards" promulgated by ICWA is found in 25 U.S.C. § 1911(c), which provides, "[i]n any State court proceeding for the foster care placement of, or termination of parental rights to, an Indian child, the Indian custodian of the child and the Indian child's tribe shall have a right to intervene at any point in the proceeding." (Emphasis added.)
We note that on May 20, 1994, the District Court granted the Tribe's motion to intervene. However, on July 27, 1994, the court determined that the Tribe failed to promptly intervene after receiving notice of the proceedings. The court concluded that the Tribe's failure to promptly intervene after receiving notice of the proceedings waived the Tribe's right to intervene at a later date. Regardless of the procedural peculiarities of the District Court's actions, we will address the Tribe's asserted right to intervene in these proceedings.
We find no support in ICWA for the court's conclusion that the Tribe waived its right to intervene. While 25 U.S.C. § 1912 establishes notice requirements which must be fulfilled before proceedings may go forward, this section does not indicate that the Tribe's right to intervene is impaired if it does not intervene promptly after receiving such notice.
In In the Matter of the Guardianship of Q.G.M. (Okl.1991), 808 P.2d 684, the Oklahoma Supreme Court concluded that an Indian tribe could not waive its right to intervene merely by failing to intervene within the time provided by 25 U.S.C. § 1912. In resolving this issue, the court explained [T]he...
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