In re A.J.S.

• Decision Date: 27 March 2009
• Docket Number: No. 99,130.,99,130.
• Citation: 204 P.3d 543
• Parties: In the Matter of A.J.S., A Minor Child.
• Court: Kansas Supreme Court

204 P.3d 543

In the Matter of A.J.S., A Minor Child.

No. 99,130.

Supreme Court of Kansas.

March 27, 2009.

Angel R. Smith, assistant attorney general, of Cherokee Nation, of Tahlequah, Oklahoma, argued the cause, and Thomas C. McDowell, of McDowell, Chtd., of Wichita, was with her on the briefs for appellants Cherokee Nation and natural father.

Martin W. Bauer, of Martin, Pringle, Oliver, Wallace & Bauer, L.L.P., of Wichita, argued the cause and was on the brief for appellee.

The opinion of the court was delivered by BEIER, J.:

This dispute between the unmarried natural mother and natural father of A.J.S. requires us to revisit our state's adherence to the existing Indian family doctrine.The doctrine was first articulated in In re Adoption of Baby Boy L.,231 Kan. 199, 643 P.2d 168(1982), and since then has been invoked in Kansas and elsewhere to except certain custody proceedings involving children with Indian ancestry from the provisions of the Indian Child Welfare Act (ICWA), 25 U.S.C. § 1901 et seq.(2000).

Father—whose paternity has been confirmed since oral argument before this court, thus lifting a stay on issuance of this opinion—is an enrolled member of the Cherokee Nation.Mother consented to adoption of their child, A.J.S., by members of her family and sought to terminate Father's parental rights in state district court in Sedgwick County.The district judge rejected Father's effort to transfer this matter to tribal court and rejected the tribe's attempt to intervene, basing his decision on Baby Boy L.This is an interlocutory appeal from those rulings.

Mother had been dating Father approximately 1 month before she became pregnant with A.J.S.The day after the baby was born, Mother filed a petition to terminateFather's parental rights.She also signed a consent to the adoption of A.J.S. by members of her family.A temporary order placing A.J.S. in the custody of the intended adoptive parents was entered, and A.J.S. has resided with the intended adoptive parents since that order.

Father filed an Indian Heritage Affidavit, acknowledging that he was the father of A.J.S. and that he was an enrolled member of the Cherokee Nation.He invoked the placement preferences of the ICWA; requested that the tribal court assume jurisdiction; and requested that A.J.S. be placed with him, pending further proceedings.In his answer to Mother's petition, filed the same day, he denied allegations that he was unfit; suggested that Mother also was of Indian heritage; and requested the case be dismissed, stayed, or transferred to the tribal court pursuant to ICWA.

Mother objected to the transfer request, denied any Indian heritage, and sought placement for adoption with her own family.She also sought a declaration that ICWA was inapplicable under the existing Indian family doctrine of Baby Boy L.,231 Kan. 199, 643 P.2d 168.

The Cherokee Nation filed a motion to intervene, arguing that ICWA applied.It also took issue with the sufficiency of its notice of the proceedings, an issue the tribe has now waived.

At the ensuing evidentiary hearing in district court, Mother testified that she was not a member of any tribe, that she had never lived on a reservation, and that she knew nothing of tribal customs.She also testified that Father never mentioned his ties to the Cherokee Nation and that she had never known he was a member of the tribe.According to Mother, Father never had contact with or provided any support for A.J.S.She also testified that she would revoke her consent to the adoption and raise A.J.S. by herself to prevent A.J.S. being raised by Father or the tribe.The evidence before the district judge also included printouts of information from Father's MySpace web page in which he had listed his heritage as white/Caucasian.

The parties stipulated that A.J.S. qualified as an Indian child under ICWA's definition.Nevertheless, the district judge ruled that ICWA was not applicable to this termination and adoption because A.J.S. had never been part of any Indian family relationship.Under these circumstances, the district judge also denied the Cherokee Nation's motion to intervene and declined to modify the temporary custody order.Trial was set to determine whether Father's parental rights should be severed, and permission was granted for this appeal.

Both parties suggest that this court should review the district judge's refusal to apply ICWA for abuse of discretion.We disagree.The threshold question of whether ICWA applies to this proceeding raises a question of statutory interpretation or construction, i.e., a question of law over which this court exercises unlimited review.SeeGenesis Health Club, Inc. v. City of Wichita,285 Kan. 1021, 1031, 181 P.3d 549(2008).Likewise, the related question of whether the common-law precedent set by Baby Boy L.,231 Kan. 199, 643 P.2d 168, should stand also is a question of law for this court.

These proceedings were initiated under provisions of the Kansas Adoption and Relinquishment Act, K.S.A. 59-2111 et seq., governing relinquishment and adoption and the associated termination of the rights of natural parents.SeeK.S.A. 59-2136.As Father and the tribe point out, however, federal law preempts nonconforming or conflicting state law.United States Constitution, Art. VI, cl. 2;Cipollone v. Liggett Group, Inc.,505 U.S. 504, 516-17, 112 S.Ct. 2608, 120 L.Ed.2d 407(1992).Any state sovereignty-based presumption against federal preemption is overcome by showing a Congressional intent to preempt.See, e.g., Medtronic v. Lohr,518 U.S. 470, 485, 116 S.Ct. 2240, 135 L.Ed.2d 700(1996).By its terms, ICWA applies to any child custody proceeding, including a termination of parental rights proceeding and a foster care or adoptive placement proceeding, involving an Indian child.25 U.S.C. § 1903(1)(i), (ii)(2000).

There is no dispute that A.J.S. is an Indian child within the meaning of ICWA, see25 U.S.C. § 1903(4), or that this is a state court child custody proceeding, see25 U.S.C. § 1903(1)(ii), (iv).Generally, when such a child is not domiciled or residing on a reservation and the child's father objects to severance of his rights and the child's adoption, the tribe is permitted to intervene in the proceeding.25 U.S.C. § 1911(c);see, e.g., Mississippi Band of Choctaw Indians v. Holyfield,490 U.S. 30, 36, 109 S.Ct. 1597, 104 L.Ed.2d 29(1989).Moreover, ICWA's procedural and substantive provisions govern the case to avoid a risk of invalidation of its result.See, e.g., 25 U.S.C. § 1912(2000)(notice);25 U.S.C. § 1914(2000)(invalidation);25 U.S.C. § 1915(2000)(placement preferences).

The parties appreciate that, to this point, Kansas has departed from the ICWA norm through the existing Indian family doctrine, adopted unanimously by this court in Baby Boy L.,231 Kan. 199, 643 P.2d 168.Since Baby Boy L. was decided in 1982, 4 years after enactment of ICWA, the doctrine has been consistently applied in Kansas.SeeIn re Adoption of B.G.J.,281 Kan. 552, 133 P.3d 1(2006)(declining to accept appellant's invitation to reject existing Indian family doctrine; doctrine not implicated in appeal);In re M.B.,39 Kan.App.2d 31, 176 P.3d 977(2008)(holding existing Indian family doctrine precludes application of ICWA when Indian child's parents have not maintained significant social, cultural, political relationship with tribe);In re J.J.G.,32 Kan.App.2d 448, 83 P.3d 1264(2004)(discussing existing Indian family doctrine).Thus the parties' principal arguments focus on the logic and wisdom of the doctrine and the similarity or lack of similarity between the facts of this case and those before this court in Baby Boy L.

Baby Boy L. was born to an unmarried, non-Indian woman, who gave consent for adoption by non-Indian appellees.The district judge granted temporary custody to the appellees, who later filed a petition for termination of the parental rights of Baby Boy L.'s natural father, C.P. C.P., who was incarcerated, contested the petition and sought denial of the adoption.The district court judge bifurcated the proceedings, dealing first with the termination action and then the adoption.The parties presented their evidence, and, before ruling, the judge learned that C.P. was an enrolled member of the Kiowa Tribe.The tribe was then notified.It sought intervention, invoked ICWA, requested that the proceeding be transferred to tribal court, and demanded Baby Boy L. be placed with C.P.'s parents and/or the tribe.

The district judge ruled that ICWA did not apply and he denied the tribe's motion to intervene.The judge reasoned that ICWA was designed to prevent the unilateral break-up of Indian families.Baby Boy L. had never been, and, in the judge's view, absent his mother's consent, would never be part of an Indian family.The district judge terminated C.P.'s parental rights and granted the adoption.

C.P., his parents, and the Kiowa Tribe appealed, arguing that ICWA applied and that the tribe had a right to intervene and to petition the court for a change of jurisdiction and custody of Baby Boy L.

On appeal, this court focused on the language, history, and purpose of ICWA in order to determine whether Congress intended it to be applicable on these facts.The court concluded "that the ICWA, by its own terms, does not apply to these proceedings."Baby Boy L.,231 Kan. at 207, 643 P.2d 168.Justice Richard W. Holmes wrote for the court:

"A careful study of the legislative history behind the Act and the Act itself discloses that the overriding concern of Congress and the proponents of the Act was the maintenance of the family and tribal relationships existing in Indian homes and to set minimum standards for the removal of Indian children from their existing Indian environment.It was not to dictate that an illegitimate infant who has never been a member of an Indian home or culture, and probably never would be, should be removed from its...