Baby Boy Doe, Matter of

• Citation: 902 P.2d 477,127 Idaho 452
• Decision Date: 25 August 1995
• Docket Number: No. 21723,21723
• Parties: In the Matter of BABY BOY DOE, A Minor Child. Joe and Jane DOE, Petitioners-Respondents-Respondents on Appeal, v. John ROE and Mary Roe, Respondents-Respondents-Respondents on Appeal, and Indian Tribe, Intervenor-Appellant-Appellant on Appeal. Boise, March 1995 Term
• Court: United States State Supreme Court of Idaho

Page 477

902 P.2d 477

127 Idaho 452

In the Matter of BABY BOY DOE, A Minor Child.

Joe and Jane DOE, Petitioners-Respondents-Respondents on Appeal, v. John ROE and Mary Roe, Respondents-Respondents-Respondents on Appeal, and Indian Tribe, Intervenor-Appellant-Appellant on Appeal.

No. 21723.

Supreme Court of Idaho,

Boise, March 1995 Term.

Aug. 25, 1995.

Idaho Legal Aid Services, Inc., Lewiston, Robert J. McCarthy; Idaho Legal Aid Services, Inc., Boise, Howard A. Belodoff, for appellant Tribe.

Underwood & Steele, Carolyn S. Steele, Boise, for respondents Joe and Jane Doe.

Ronald J. Wilper, Caldwell, for Baby Boy Doe.

Van G. Bishop, Nampa, for respondent John Roe.

Richard L. Harris, Caldwell, for respondent Mary Roe.

SILAK, Justice.

This case concerns the application of the child custody proceedings of the federal Indian Child Welfare Act ("ICWA"), 25 U.S.C. §§ 1901-1923 (1988), to the termination of the parental rights of an Indian father and the adoption of his child by a non-Indian couple.

I. BACKGROUND AND PRIOR PROCEEDINGS

The child in this case was born in 1989. The mother is a non-Indian and never married the child's father. Shortly after birth, the mother placed the child with the adoptive parents, and he has remained with them to the present. After placing the child, the mother signed consents to the termination of her parental rights and to adoption by the adoptive parents. When the adoptive parents initiated proceedings to terminate the father's parental rights, the father's Indian tribe intervened. The tribe sought application of ICWA. The magistrate judge (trial court) held that the ICWA did not apply, and terminated the Indian father's parental rights. The tribe appealed to the district court which affirmed. The tribe then appealed to this Court.

In In the Matter of Baby Boy Doe, 123 Idaho 464, 849 P.2d 925 (1993) (Doe I ), we held that ICWA applied, and vacated the trial court's order which terminated the parental rights of the Indian father. In Doe I, this Court did not decide the issues of the termination of the father's parental rights and the placement of the child, remanding those questions to the trial court for further proceedings. See generally, Doe I.

On remand, the mother retained counsel and filed an appearance in the case, followed by a petition to rescind termination of her parental rights. She had not previously participated in the case. The tribe objected to the mother's appearance, but the trial court took that issue under advisement and allowed the mother to participate. The trial court held six days of hearings in October and December 1993. In May 1994, the trial court issued a memorandum decision and order. Therein, the trial court (i) held that the mother's consents to terminate her parental rights and the consents to adoption were invalid, and that she was a proper party to the proceedings, (ii) terminated the father's parental rights under ICWA, (iii) found good cause to deviate from ICWA's placement preferences, and (iv) ruled that the mother may proceed to place the child for adoption with the adoptive parents. The tribe appealed to the district court, and this Court granted the district court's petition to assume jurisdiction of the appeal. The father did not file an appeal, and did not participate in the proceedings on remand.

II. ISSUES

1. Were the mother's consents to termination of parental rights valid, and was she a proper party below?

2. Were active efforts made to prevent breakup of the Indian family, as required under 25 U.S.C. § 1912(d)?

3. Is the trial court's finding of likely serious emotional harm to the child supported by evidence from testimony of qualified expert witnesses, as required under 25 U.S.C. § 1912(f)?

4. Is the trial court's finding of likely serious emotional harm to the child supported by evidence beyond a reasonable doubt, as required under 25 U.S.C. § 1912(f)?

5. Does good cause exist to deviate from the placement preferences of the ICWA?

III. STANDARD OF REVIEW

This Court will uphold the trial court's findings of fact if supported by substantial competent evidence. Ireland v. Ireland, 123 Idaho 955, 957-58, 855 P.2d 40, 42-43 (1993). On issues of law, we exercise free review. Ausman v. State, 124 Idaho 839, 841, 864 P.2d 1126, 1128 (1993). Whether the trial court correctly applied ICWA to the facts of this case is a question of law and is subject to free review by this Court. In the Matter of Baby Boy Doe, 123 Idaho 464, 469, 849 P.2d 925, 930 (1993).

IV. MOTHER'S REVOCATION OF CONSENTS AND PARTICIPATION AS A PARTY

The tribe opposed the mother's appearance in the case, arguing her legal rights were terminated by an order of June 1990 after she voluntarily consented to termination of her parental rights. The trial court analyzed four separate consents (two consents to terminate parental rights, and two consents to adoption), and concluded the consents to termination and to adoption were invalid. Alternatively, the trial court held that if valid, the mother had the right to withdraw or rescind her consents, and therefore, was a proper party to the proceedings.

We need not address the parties' contentions respecting each consent to resolve whether the mother had standing to participate below. We hold that none of the consents to terminate parental rights complied with ICWA's statutory formalities, and that the order of June 1990 terminating the mother's parental rights is invalid. Because the mother's parental rights were not terminated, we conclude she had standing to participate in these proceedings.

Both Idaho law and ICWA contain statutes stating the formalities required for a voluntary termination of parental rights. See I.C. § 16-2005; 25 U.S.C. § 1913(a). In such situations, ICWA requires a court to apply the state or federal law provision which provides "a higher standard of protection" to a parent's rights. 25 U.S.C. § 1921; see Matter of Appeal in Pima County Juvenile Action No. S-903, 130 Ariz. 202, 635 P.2d 187 (App.1981). We hold that 25 U.S.C. § 1913(a) applies here, because it offers greater protection to parents of Indian children. Unlike the state law counterpart, the federal statute requires judicial certification that the terms and consequences of the consent were fully explained:

Where any parent or Indian custodian voluntarily consents ... to termination of parental rights, such consent shall not be valid unless executed in writing and recorded before a judge of a court of competent jurisdiction and accompanied by the presiding judge's certificate that the terms and consequences of the consent were fully explained in detail and were fully understood by the parent or Indian custodian....

25 U.S.C. § 1913(a) (emphasis added). None of the mother's consents to termination of parental rights contain the required judicial certification. Even the June 14, 1990 consent to termination, which the trial court stated adhered to statutory formalities (under state law), was invalid under 25 U.S.C. § 1913(a) for lack of the judge's certificate that the terms and consequences of the consent to terminate were fully explained.

The trial court also ruled that the termination order of June 18, 1990 was invalid because it was conditional and did not divest the mother of all legal rights. We agree. Under I.C. § 16-2011, an " order terminating Because the mother's parental rights were never terminated, it follows that she was a proper party to the proceedings below. Accordingly, we need not further analyze whether the consents to adoption were valid. The trial court held alternatively that if the consents to adoption were valid, the mother could revoke them under 25 U.S.C. § 1916(a). Having concluded that the mother had standing irrespective of the consents to adoption, we need not reach the revocation issue.

                [127 Idaho 457]  the parent and child relationship shall divest the parent and the child of all legal rights, privileges, duties, and obligations, including rights of inheritance, with respect to each other."   The June 1990 termination order was conditional;  it terminated the mother's parental rights only in favor of the adoptive parents
                

V. EFFORTS TO PREVENT BREAKUP OF INDIAN FAMILY

The trial court's memorandum decision terminating the father's parental rights focused on the requirements of 25 U.S.C. §§ 1912(d) and 1912(f). Section 1912(d) provides in pertinent part:

Any party seeking to effect a ... termination of parental rights to[ ] an Indian child under State law shall satisfy the court that active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and that these efforts have proved unsuccessful.

25 U.S.C. § 1912(d). The trial court concluded that active efforts were made to prevent the breakup of the Indian family. Two subsidiary issues exist here: (i) what is the burden of proof, and (ii) were adequate remedial services provided?

A. BURDEN OF PROOF

The tribe argues it must be shown "beyond a reasonable doubt" that rehabilitative efforts were offered and were futile, citing In the Matter of the Welfare of M.S.S., 465 N.W.2d 412 (Minn.Ct.App.1991). However, 25 U.S.C. § 1912(d) does not expressly establish the "beyond a reasonable doubt" standard, but rather appears to provide a lesser standard: "shall satisfy the court that active efforts...." (emphasis added).

Our review of the statute's language and the legislative history has convinced us that Congress never intended a "beyond a reasonable doubt" standard to apply in 25 U.S.C. § 1912(d). Starting first with the language of subsection (d) itself, we note that the word "satisfy," as used, has a distinct meaning. The definition which seems most consistent with this context is "to persuade by argument or evidence." Webster's Third New International Dictionary 2017 (1971). Unless a contrary purpose is clearly indicated, ordinary words are given their ordinary meaning when...