In re Adoption of BGJ, No. 91,997.

• Decision Date: 13 May 2005
• Docket Number: No. 91,997.
• Citation: 33 Kan.App.2d 894,111 P.3d 651
• Parties: IN THE MATTER OF THE ADOPTION OF B.G.J.
• Court: Kansas Court of Appeals

33 Kan.App.2d 894

111 P.3d 651

IN THE MATTER OF THE ADOPTION OF B.G.J.

No. 91,997.

Court of Appeals of Kansas.

Opinion filed May 13, 2005.

Petition for review granted September 20, 2005.

Margie J. Phelps, of Topeka, and Rachel I. Hockenbarger, of Phelps-Chartered, of Topeka, for appellant Prairie Band Potawatomi Nation.

Martin W. Bauer and Teresa L. Mah, of Martin, Pringle, Oliver, Wallace & Bauer, L.L.P., of Wichita, and Michael J. Belfonte, of Michael J. Belfonte, P.C., of Kansas City, Missouri, for appellees adoptive parents.

Before HILL, P.J., MARQUARDT and JOHNSON, JJ.

Petition for review granted 280 Kan. ___ (September 20, 2005).

HILL, J.:

In this case we are asked to decide if the district court had sufficient cause to deviate from the adoption placement preferences established in the Indian Child Welfare Act, 25 U.S.C. § 1901 et seq. (2000). While it is true that the Act establishes adoption preferences, if there is good cause, courts do not have to follow them. Relying primarily upon the relinquishing mother's strong rejection of her extended Indian family and her equally strong preference for the adopting parents, the trial court overruled the objections of the Prairie Band Potawatomi Nation (Tribe) and granted the adoption of B.G.J. to a non-Indian couple from Edmond, Oklahoma. Employing an abuse of discretion standard, we hold that the trial court had good cause to not follow the preferences set out in the Act and, accordingly, affirm.

Background Facts

B.G.J. was born on June 4, 2003, in Topeka, Kansas. Her mother is T.J., who is half Native American, and her unknown father is African-American and has no known Indian heritage. T.J. and her other children are members of the Prairie Band Potawatomi Nation. B.G.J. is eligible for membership in the Tribe but has not yet been enrolled. Neither T.J. nor her children have ever lived on an Indian reservation. They have received some benefits from the Tribe, such as medical and dental care, child care, school grants, a computer, housing when needed, and financial help for utilities and food.

T.J. kept her pregnancy confidential. The day after B.G.J.'s birth, T.J. contacted Adoption of Babies and Children, Inc. to begin the adoption process. The adoption agency notified the Tribe of B.G.J.'s birth on June 5, 2003, by letter. In the letter, the agency stated that although T.J. had already selected a family to adopt B.G.J., the agency would not place the child until it determined whether the Tribe wished to intervene. During the following several days, the Tribe informed the agency through telephone calls that there were no prospective adoptive families available at the time and there were only two foster care options and one of them was a group home. T.J. opposed the Tribe providing any foster care for B.G.J. Obeying her wishes, B.G.J. was placed by the adoption agency in private foster care pending T.J.'s selection of a prospective adoptive family.

T.J. selected R.F. and L.F. from Edmond, Oklahoma, to adopt B.G.J. from a selection of possible parents kept by the adoption agency. R.F. and L.F. had already completed home studies and were approved as prospective adopting parents. They are not Native American, but L.F. had worked with Native American communities in a research capacity. Additionally, L.F. had many Native American friends and colleagues.

District Court Proceedings

The adopting couple received physical custody of B.G.J. on June 24, 2003. The next day, T.J. relinquished custody of B.G.J. to the agency so R.F. and L.F. could adopt B.G.J. Subsequently, the parental rights of B.G.J.'s unknown birth father were terminated.

Later, on July 23, 2003, a member of the Tribe informed the adoption agency there was a family available within the Tribe to adopt B.G.J. According to this Tribe member, the family had been available "from the beginning"; this contradicted what the agency had previously been told. The agency stated that it never received information about this family.

The district court granted the Tribe's motion to intervene. The Tribe also filed a motion to transfer the case to the tribal court and to dismiss the state court proceedings. At the same trial, the district court heard the adoption petition as well as the Tribe's objection to the adoption. The two issues tried were the suitability of petitioners, R.F. and L.F., as adopting parents and whether petitioners could show good cause to deviate from the Indian Child Welfare Act's placement preferences. At the hearing, T.J. asked the court not to transfer the case to the tribal court. Further, T.J. explained she was aware of the Indian Child Welfare Act's placement preferences but did not want B.G.J. to be raised by any member of her family or any Native American. Therefore, T.J. requested that the court deviate from the law's placement preferences and allow petitioners to adopt B.G.J.

The relinquishing parent, T.J., testified that she does not follow the culture and customs of the Tribe, nor does she practice the Drum Religion, the religion practiced by most of the Tribe. But she has participated in a tribal practice called a sweat lodge on a couple of occasions. T.J. testified she had considered but rejected a number of family members as potential adoptive parents for B.G.J. T.J. stated she had not wavered in her decision to relinquish B.G.J. and place her with the petitioners. T.J. believed it was in the best interest of B.G.J. to be adopted by R.F. and L.F. and stated unequivocally that if the court did not allow them to adopt B.G.J., she would take B.G.J. back and rear her outside the practices and customs of the Tribe.

Then, from the Tribe's point of view, a number of people willing to adopt B.G.J. testified. Among them was Robin Guerrero, T.J.'s niece and a member of the Tribe. Guerrero did not live on the reservation but was an employee of the Tribe and was willing to raise B.G.J. in the Tribe's heritage. Guerrero had neither undergone an assessment by a social worker to be approved as a potential adoptive parent, nor filed a petition to adopt B.G.J.

Yvonne Castro-Hoss, a cousin of T.J., testified she, too, was interested in adopting B.G.J. Neither Castro-Hoss nor her husband are Native American, but her husband works for the Tribe. Like Guerrero, Castro-Hoss did not file a petition for adoption and had not obtained an assessment by a social worker to be approved as a potential adoptive parent.

Roberta Guerrero, T.J.'s half sister and a member of the Tribe, testified she wished to adopt B.G.J. and raise her in the Tribe's heritage. Roberta Guerrero was 50 years old, single, and earned a monthly income of $600. Guerrero had neither obtained an assessment by a social worker to be approved as a potential adoptive parent, nor filed a petition to adopt B.G.J. Finally, Jennifer Herrera, T.J.'s sister and a member of the Tribe, testified she would like to adopt B.G.J. Herrera was married and had eight children living in her home. Herrera followed some of the Tribe's rituals and was willing to raise B.G.J. in the Tribe's heritage. Herrera did not file a petition to adopt B.G.J. and had not obtained an assessment to be approved as a potential adoptive parent.

Given T.J.'s decision to keep her pregnancy confidential, neither Guerrero nor Herrera knew of T.J.'s pregnancy or B.G.J.'s birth until shortly before the hearing.

District Court Ruling

The district court stated that although T.J. was one-half Native American by blood, her lifestyle choices and practices were essentially that of a non-Native American. Nevertheless, the court determined the Indian Child Welfare Act applied to the placement of B.G.J. despite T.J.'s desire for B.G.J. to be reared in a non-Native American environment. Accordingly, the court decided a finding of good cause was required in order to deviate from the adoption placement preferences in the Indian Child Welfare Act.

The court ruled that the adopting parents, R.F. and L.F., as the parties urging a deviation from the preferences, had the burden to establish the existence of good cause for such deviation. The court decided they had satisfied their burden. In doing so, the court looked to guidelines issued by the Bureau of Indian Affairs (BIA), which formulates factors relevant to the determination of good cause, such as the request of the biological parents, the extraordinary needs (physical or emotional) of the child, and the unavailability of suitable families for adoptive placement following a diligent search. See 44 Fed. Reg. 67,594 (1979). Further, the court found the best interests of B.G.J. was a relevant but not controlling factor in determining whether good cause had been established.

After concluding there was good cause to deviate from the law's placement preferences, the court found petitioners were suitable to adopt B.G.J. The child had obviously bonded with them, and it was in B.G.J.'s best interest to be adopted by the couple. The court granted their petition for adoption.

Issues on Appeal

The Prairie Band Potawatomi Nation attacks the district court's decision in two ways. It claims errors of law and misinterpretation of the facts. The Tribe offers four legal arguments. It believes that the relinquishing mother's preferences should not negate the placement preferences contained in the Indian Child Welfare Act; that the court improperly shifted the burden from the adopting parents to the Tribe to show the Act's preferences should be followed; that the court failed to require the adopting parents to show they had made a diligent search for suitable Indian placement options and, instead, erroneously compelled the Tribe to do so; and, finally, that the court incorrectly applied the "best interest of the child" standard to the case. Next, the Tribe contends that the court simply erred in finding its placement options were unsuitable and that the evidence of B.G.J.'s bonding with the adopting parents could be considered by the...