Bridget R., In re

• Decision Date: 18 January 1996
• Docket Number: B093694,Nos. B093520,s. B093520
• Citation: 49 Cal.Rptr.2d 507,41 Cal.App.4th 1483
• Court: California Court of Appeals Court of Appeals
• Parties: , 96 Daily Journal D.A.R. 619 In re BRIDGET R., et al., Minors. JAMES R. et al., Petitioners and Appellants, v. CINDY R. et al., Objectors and Respondents. Dry Creek Rancheria, et al., Intervenors and Respondents. VISTA DEL MAR FAMILY AND SOCIAL SERVICES, Plaintiff and Appellant, v. CINDY R. et al., Defendants and Respondents; James R. et al., Defendants and Appellants. JAMES R. et al., Petitioners, v. The SUPERIOR COURT of Los Angeles County, Respondent; CINDY R. et al., Real Parties in Interest.

Page 507

49 Cal.Rptr.2d 507

41 Cal.App.4th 1483, 96 Daily Journal D.A.R. 619

In re BRIDGET R., et al., Minors.

JAMES R. et al., Petitioners and Appellants, v. CINDY R. et al., Objectors and Respondents.

Dry Creek Rancheria, et al., Intervenors and Respondents.

VISTA DEL MAR FAMILY AND SOCIAL SERVICES, Plaintiff and Appellant, v. CINDY R. et al., Defendants and Respondents;

James R. et al., Defendants and Appellants.

JAMES R. et al., Petitioners, v. The SUPERIOR COURT of Los Angeles County, Respondent;

CINDY R. et al., Real Parties in Interest.

Nos. B093520, B093694.

Court of Appeal, Second District, Division 3, California.

Jan. 18, 1996.

As Modified on Denial of Rehearing Feb. 14, 1996.

Review Denied May 15, 1996.

Michael F. Kanne, Tustin, for Petitioner and Appellant Vista Del Mar Child and Family Services.

James E. Cohen, Escondido, for Intervenor and Respondent Dry Creek Rancheria.

Mitchell L. Beckloff, Santa Monica, for Respondent Minors.

Janette Freeman Cochran, Pasadena, Robert S. Gerstein, Santa Monica for Biological Parents.

Farella, Braun & Martel, Norma G. Formanek, Jennifer Schwartz, San Francisco, Joan Heifetz Hollinger, Detroit, MI, Mark C. Tilden, Boulder, CO, Alexander & Karshmer, Barbara Karshmer, Berkeley, Sant'Angelo & Trope, Jack F. Trope, New York City, Robert J. Miller, Sacramento, Patricia D. Hinrichs, Coos Bay, OR, Dunaway & Cross, Michael P. Bentzen, Cary W. Mergele, Washington, DC, Wylie, McBride, Jesinger, Sure & Platten, Christopher E. Platten, San Jose, Marc Gradstein, Burlingame, Mark D. Fiddler, Todd D. Steenson, Minneapolis, MN, and Randall B. Hicks, Riverside, as Amici Curiae.

CROSKEY, Associate Justice.

California recognizes the principle that children are not merely chattels belonging to their parents, but rather have fundamental interests of their own. (In re Jasmon O. (1994) 8 Cal.4th 398, 419, 33 Cal.Rptr.2d 85, 878 P.2d 1297.) Such fundamental interests are of constitutional dimension. This principle is central to our resolution of the multiple and complex issues presented by this case.

We reverse an order of the trial court made pursuant to sections 1913 and 1914 of the Indian Child Welfare Act of 1978 (25 U.S.C.A. §§ 1901 et seq.; hereafter "ICWA" The twins are of American Indian descent, and the within dispute over their prospective adoption and custody raises issues concerning the scope of ICWA. Specifically, it raises the question of whether the Act should be limited in its application, as some courts have limited it, to children who not only are of Indian descent, but also belong to an "existing Indian family." (See, e.g., In re Adoption of Crews (1992) 118 Wash.2d 561, 825 P.2d 305; Matter of Adoption of Baby Boy L. (1982) 231 Kan. 199, 643 P.2d 168.) We conclude that question must be answered in the affirmative.

or "the Act"). The court's order invalidated a voluntary relinquishment of parental rights respecting Bridget and Lucy R., twin two-year-old girls, and ordered the twins removed from their adoptive family, with whom they have lived since birth, and returned to the extended family of the biological father. The adoptive parents (hereafter the "R's" or "adoptive parents") appealed, ¹ joined by the licensed adoption agency through which the twins were placed. ²

ICWA was enacted by Congress to protect the best interests of Indian children and promote the stability of Indian tribes and families. (25 U.S.C.A. § 1902; Mississippi Band of Choctaw Indians v. Holyfield (1989) 490 U.S. 30, 32-37, 109 S.Ct. 1597, 1599-1602, 104 L.Ed.2d 29; Adoption of Lindsay C. (1991) 229 Cal.App.3d 404, 408, 280 Cal.Rptr. 194.) To this end, ICWA requires, among other things, that any voluntary termination of parental rights respecting an Indian child be (1) executed in writing, (2) recorded before a judge, and (3) executed more than ten days after the birth of the child. (25 U.S.C.A., § 1913, subd. (a).) Any consent not meeting these requirements is invalid and may be declared so at any time by a court of competent jurisdiction upon petition by the child, the Indian parent or custodian, or the child's tribe. (25 U.S.C.A., § 1914.)

Here, the twins' biological parents, Richard A. ("Richard") and Cindy R. ("Cindy"), initially relinquished the twins to appellant Vista Del Mar Child and Family Services ("Vista Del Mar") pursuant to section 8700 of California's Family Code for adoption by the R's, a non-Indian couple. However, Richard and Cindy later purported to withdraw their consent. With the assistance of the Dry Creek Rancheria of Pomo Indians, the federally recognized Indian tribe from which Richard is descended (hereafter the "Tribe"), they initiated proceedings under ICWA to invalidate their relinquishments of parental rights. It is undisputed that the relinquishments were not executed in the manner required by ICWA. It is also undisputed that Richard and the twins are now recognized by the Tribe as tribal members. However, the record raises substantial doubt as to whether Richard, who, at all relevant times, resided several hundred miles from the tribal reservation Although urged by Vista Del Mar and the R's to apply the "existing Indian family doctrine" in this case, and uphold the relinquishments of parental rights unless the biological parents established that they were such a family, the trial court declined to apply that doctrine or hold any hearing with respect thereto. The court simply declared the relinquishments invalid as violative of ICWA and ordered the twins placed in the custody of their paternal grandparents, who were appointed temporary guardians. The trial court also dismissed a petition by the adoptive parents to terminate the biological parents' parental rights on the ground of abandonment. (Fam.Code, § 7822.) The court found ICWA precluded it from proceeding on that petition.

ever participated in tribal life or maintained any significant social, cultural or political relationship with the Tribe.

As we explain, recognition of the existing Indian family doctrine is necessary in a case such as this in order to preserve ICWA's constitutionality. We hold that under the Fifth, Tenth and Fourteenth Amendments to the United States Constitution, ICWA does not and cannot apply to invalidate a voluntary termination of parental rights respecting an Indian child who is not domiciled on a reservation, unless the child's biological parent, or parents, are not only of American Indian descent, but also maintain a significant social, cultural or political relationship with their tribe. Because the factual issues raised by such a rule have not been resolved, we reverse the trial court's order and remand the case for a determination as to whether the twins' biological parents had such a relationship at the time that they voluntarily acted to relinquish their parental rights under California law. In the event that the trial court, after consideration of all the evidence, determines that such a relationship did not exist, then those relinquishments will be valid and binding and ICWA will not bar any pending adoption proceedings. On the other hand, if the trial court finds that the biological parents did have a significant social, cultural or political relationship with the Tribe, and therefore the provisions of ICWA can properly be applied, then a further guardianship hearing will be required to resolve the question of whether the twins should be removed from the custody of the R's.

FACTUAL BACKGROUND ³

Bridget and Lucy, twin girls, were born on November 9, 1993, in Los Angeles County, California, to Richard and Cindy. He is of American Indian descent, while she is descended from the Yaqui tribe of Mexico. ⁴ Richard is three-sixteenths Pomo and is currently an enrolled member of the Tribe.

The Tribe, which occupies a reservation in Sonoma County, in northern California, has approximately 225 enrolled members, of whom approximately twenty-five live on the reservation. Since 1973, the Tribe has been governed by a set of Articles of Association, which, among other things, establish the qualifications of tribal membership. Under the Articles, such membership includes all persons who (1) have completed an application for membership, and (2) are named in a June 4, 1915 Bureau of Indian Affairs census of Indians "in, near and up Dry Creek from Healdsburg" and Indians "in and near Geyserville," or are descendants of persons in those censuses, or are both California Indians and spouses of tribal members who hold valid assignments of land on the Rancheria. A person who is otherwise qualified to be a member is disqualified if he or she has been formally enrolled in another tribe, band or group, or has received an allotment of land by virtue of an affiliation with such other tribe, band or group. The Tribe's Board of Directors is responsible for maintaining a current membership roll.

Before the adoption of the Articles of Association in 1973, the Tribe was governed solely by custom and tradition, under which any lineal descendant of a historic tribal In mid-1993, Richard and Cindy discovered that Cindy was pregnant. Richard was then 21 years old, and Cindy was 20. They then lived together with their two sons, Anthony, age two, and Richard Andrew, age one, in the city of Whittier in Los Angeles County, California. However, by August of 1993, Cindy and the children were living in a shelter. Richard and Cindy realized they would not be able to care for the expected twins, and so determined to relinquish them for adoption. They consulted Durand Cook, an attorney specializing in adoption, for this purpose.

member was automatically a member of the Tribe and was recognized as such from birth. Marcellena Becerra, the tribal administrator, testified in the proceedings below that, when the Articles of Association were adopted, it was determined that existing members would continue to be recognized as members without the need to enroll formally. Thus, although his name is...