A. B. M. v. M. H., 6200

• Decision Date: 24 September 1982
• Docket Number: No. 6200,6200
• Parties: A.B.M., Natural Mother, Appellant, v. M.H. & A.H., Prospective Adoptive Parents, Appellees.
• Court: Alaska Supreme Court

Page 1170

651 P.2d 1170

A.B.M., Natural Mother, Appellant, v. M.H. & A.H., Prospective Adoptive Parents, Appellees.

No. 6200.

Supreme Court of Alaska.

Sept. 24, 1982.

Suzanne Weller and Jim Kentch, Alaska Legal Services Corp., Anchorage, for appellant.

Thomas E. Fenton, Fairbanks, for appellees.

Niesje J. Steinkruger and D. Rebecca Snow, Asst. Attys. Gen., Fairbanks, and Wilson L. Condon, Atty. Gen., Juneau, for amicus curiae State of Alaska.

Terry L. Pechota, Boulder, Colo., for amicus curiae Native American Rights Fund.

OPINION

Before RABINOWITZ, CONNOR, MATTHEWS and COMPTON, JJ., and DIMOND, Senior Justice. ^*

DIMOND, Senior Justice.

I

On February 16, 1980, A.B.M. gave birth to a baby girl, R.H. A.B.M. was not married and had made arrangements prior to birth to give her child up for adoption to her sister and brother-in-law, M.H. and A.H. On April 9, 1980, a hearing was held before a master during which A.B.M. executed a Consent to Adoption and a Relinquishment of Parental Rights. Because an adoption questionnaire completed by the H.'s indicated that R.H. was an Indian child, the hearing was conducted pursuant to the Indian Child Welfare Act (Act), 25 U.S.C. §§ 1901-63 (Supp.1981). A.B.M. was advised that under the terms of the Act she could revoke her consent to the adoption at any time before the final adoption decree was entered. A hearing on the H.'s petition for adoption took place in August 1980 and a final decree of adoption was entered by the superior court on September 5, 1980.

In November 1980 the State Department of Health and Social Services, Division of Family and Youth Services (Department) became aware of R.H.'s adoption while conducting a children's proceeding involving one of M.H.'s biological sons. The Department discovered that it had not been notified of R.H.'s adoption proceedings as required by AS 20.15.100(a) ¹ and had thus been deprived of an opportunity to investigate the suitability of R.H.'s prospective home.

As a result of the deficiency in the adoption proceedings the trial court, on motion of the State, vacated the adoption decree and ordered the Department to conduct home studies on the prospective adoptive parents and the natural mother. At the time the decree was vacated, however, the mother, A.B.M., had changed her mind about consenting to the adoption. Following entry of the court's order, A.B.M. formally petitioned for return of custody of her daughter pursuant to section 1916 of the Indian Child Welfare Act.

In June 1981, hearings were conducted to determine the future custody of R.H. At the outset of these hearings, A.B.M. filed a motion for summary judgment to establish that the standards of the Indian Child Welfare Act controlled the outcome of the custody issue. The court denied the motion, and proceeded to determine whether the adoption should be granted under state law. The court concluded that it was in the best interests of R.H. to grant the adoption by the H.'s, and refused to allow A.B.M. to withdraw her consent.

The principal issue on appeal is whether the superior court erred in not applying the provisions of the Indian Child Welfare Act to the custody proceedings. A.B.M., and the Native American Rights Fund as amicus curiae, contend that because R.H. is an Indian child she is entitled to the procedural safeguards accorded Indian children by federal law. In response, the prospective adoptive parents, the H.'s, and the State of Alaska as amicus curiae, argue that the protections of the Act have no application to the instant case. They claim that Congress intended that the Act apply only to custody proceedings involving the removal of Indian children from their homes by nonfamily public and private agencies, not to disputes within the extended family. In addition, the H.'s now assert that R.H. is not an Indian child as defined by the Act and should therefore be excluded from its coverage.

We reject both of these contentions for the reasons stated below, and find that the superior court was mistaken in not applying the provisions of the Indian Child Welfare Act to R.H.'s custody proceedings.

II

The legislative history of the Indian Child Welfare Act, 25 U.S.C. §§ 1901-63 (Supp.1981) reveals that Congress was concerned with two major social goals: protecting the best interests of Indian children and promoting the stability and security of Indian tribes and families. ² In order to achieve these objectives the Act was created to provide "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 ...." ³

The protections of the Act apply to child custody proceedings involving Indian children. ⁴ It is clear from the Congressional findings included in the Act that Congress was concerned with the alarming number of Indian families which had been broken up by the unwarranted removal of their children by nontribal public and private agencies, thereby depriving the children of exposure to cultural and social standards prevailing in Indian communities and families. ⁵ The prospective adoptive parents argue that because the Act was intended to remedy the agency bias that has resulted in the removal of Indian children from their cultural settings, its application is not required in the instant case. They contend that R.H.'s adoption by members of her "extended family" (M.H. and A.H.) will not deprive her of the exposure to Indian cultural or social values the Act is designed to safeguard.

We agree that the H.'s have correctly identified one of the primary purposes of the Act, and that application in the instant case is not required to preserve R.H.'s ties to Indian cultural or social values. Nevertheless, we cannot justify creating a judicial exception to the Act's coverage on this basis alone. ⁶

The language of the Act makes no reference to exceptions for custody disputes within the extended family. Nor does the Act draw a distinction based upon who the adoptive or foster parents of the Indian child will be. In contrast, Congress explicitly excluded certain proceedings from the protections of the Act. In section 1903(1) the definition of "child custody proceeding" specifically excludes custody disputes resulting from divorce proceedings between parents of an Indian child and placements of Indian children resulting from juvenile delinquency actions. ⁷ It is clear, then, that there were certain internal family disputes which Congress intended to except from the provisions of the Act. These exceptions were clearly expressed and we find no compelling basis for implying any others. ⁸

In support of their position the H.'s argue that the Act seeks to regulate the "removal of Indian children from their families." ⁹ They submit that the Act does not apply to the instant case as it instead concerns a voluntary placement within the family. This reasoning is faulty, however, since it improperly assumes that the terms "family" and "extended family" are congruent. We find no language in the Act or its legislative history to indicate that Congress accorded the word "family" anything more than its most common meaning. We are hesitant to conclude that Congress intended that the Act only apply when a child was being removed from his or her extended family in the absence of explicit language to that effect. That Congress did indeed make a distinction between family members and extended family members is borne out by section 1903(2), which defines "extended family member" for purposes of the Act. ¹⁰

The State, as amicus curiae, argues that an absurd result will be reached if the Act is applied to A.B.M.'s case, because the H.'s qualify as "Indian custodians" within the meaning of the Act and thus would be entitled to the same procedural protections accorded to the natural parents. ¹¹ The intent of the Act was to provide procedural safeguards for the parent or person standing in the parental role and is evidenced by the fact that the language of the Act consistently refers to its provisions as being applicable to the "Indian parent or custodian" in the disjunctive. ¹²

However, under the facts of this case, we conclude that the H.'s do not fall within the intended meaning of "Indian custodian". The pertinent provision of the Act, 25 U.S.C. § 1916(a), mandates that "whenever a final decree of adoption of an Indian child has been vacated or set aside ... a biological parent or prior Indian custodian may petition for return of custody ...." ¹³ By its terms, this provision makes it clear that the protections of the Act were not intended to apply to prospective adoptive parents against whom an adoption decree was vacated when the natural parent is seeking custody. The H.'s do not meet the requirement of being "prior Indian custodians" regardless of the manner in which the term "Indian custodian" is interpreted.

III

The H.'s final contention is that the Indian Child Welfare Act does not apply to R.H. because she is not an "Indian child" within the meaning of the term as used in the Act. The Act 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." ¹⁴ The H.'s argue that there is nothing in the record to indicate that R.H. is a member of or eligible for membership in an Indian tribe. Similarly, although it is conceded that R.H. is the biological child of A.B.M., there has been no showing that her mother is a member of an Indian tribe.

We note, however, that in an adoption questionnaire signed by the H.'s and their attorney, the Act's definition of an Indian child was set out in full. Both adoptive parents and their attorney clearly indicated in the questionnaire that R.H. is an Indian child, that her tribal affiliation is Bethel, and that she is subject to...