In re N.B., 06CA1325.

• Decision Date: 06 September 2007
• Docket Number: No. 06CA1325.,06CA1325.
• Citation: 199 P.3d 16
• Parties: In the Matter of the Petition of N.B., Petitioner-Appellant and Cross-Appellee, and L.W-E., Respondent-Appellee and Cross-Appellant, and Concerning B.S.B., a Child, and Assiniboine Tribe and Sioux Tribe, Intervenors.
• Court: Colorado Court of Appeals

199 P.3d 16

In the Matter of the Petition of N.B., Petitioner-Appellant and Cross-Appellee, and

L.W-E., Respondent-Appellee and Cross-Appellant, and

Concerning B.S.B., a Child, and

Assiniboine Tribe and Sioux Tribe, Intervenors.

No. 06CA1325.

Colorado Court of Appeals, Div. VI.

September 6, 2007.

Rehearing Denied October 11, 2007.

Kevin V. Moore, Denver, Colorado, for Petitioner-Appellant and Cross-Appellee.

American Indian Law Clinic, Jill E. Tompkins, Boulder, Colorado, for Respondent-Appellee and Cross-Appellant.

Faegre & Benson, L.L.P. — Boulder, Laurence W. Demuth, III, Padraic I. McCoy, Boulder, Colorado, for Intervenors.

Holland & Hart, L.L.P., Anthony J. Navarro, Jennifer K. Harvey Weddle, Denver, Colorado, for Amicus Curiae Colorado Indian Bar Association.

Monte Mills, Ignacio, Colorado, for Amicus Curiae Southern Ute Indian Tribe.

Peter Ortego, Towaoc, Colorado, for Amicus Curiae Ute Mountain Ute Tribe.

Opinion by Judge WEBB.

In this stepparent adoption proceeding, N.B. (stepmother) appeals the order dismissing her petition to adopt B.S.B. (the child), who is an Indian child. We agree with the trial court that her petition fails because she did not prove that active efforts were made to prevent the breakup of the Indian family, a requirement to terminate parental rights under the Indian Child Welfare Act of 1978, 25 U.S.C. §§ 1901 to 1963 (2001)(ICWA). Therefore, we affirm. Based on our affirmance, we need not address the merits of the cross-appeal of L.W-E. (mother).

I. Factual and Procedural Background

In 1998, the child was born to mother and Z.B. (father). The child has been in father's primary care since birth. Mother and father have not lived together since 1999.

In May 2001, mother moved out of state. She saw the child only three times over the next three years and offered father no child support. The child believed that stepmother was his biological mother and saw mother as a stranger. Neither stepmother nor father corrected this belief.

Stepmother petitioned to terminate mother's parental rights and to adopt the child on the grounds that mother had abandoned him and not paid child support for more than one year.

The Assiniboine and Sioux Tribes of the Fort Peck Reservation (the tribe) intervened below because of mother's enrollment in the tribe. Mother enrolled the child in the tribe eight months after the petition was filed. His status as an "Indian child" for the purposes of the ICWA is undisputed. See 25 U.S.C. § 1903(4) (2001). A prior judge held that the ICWA applied to this stepparent adoption proceeding.

After hearing testimony from mother, stepmother, father, and experts for both sides, the trial court found beyond a reasonable doubt that mother had not provided reasonable support for and had abandoned the child for at least one year before the petition was filed. See § 19-5-203(1)(d)(II), C.R.S.2006.

The court rejected the existing Indian family exception to application of the ICWA and held that the ICWA was constitutional, using a rational basis test.

Applying the ICWA, the court found beyond a reasonable doubt that continued custody of the child by mother would likely result in serious emotional damage to him, but that stepmother had not shown that active efforts were made to provide remedial services or rehabilitative programs to prevent the breakup of the Indian family. Because stepmother failed to establish such active efforts, the court denied her petition.

II. Introduction

Stepmother contends the ICWA does not apply to stepparent adoption proceedings; the existing Indian family exception should bar the ICWA's application in cases where the child has never lived in an Indian home and participated in Indian culture; the ICWA is unconstitutional; and requiring her, as a private petitioner, to make active efforts to prevent the breakup of the Indian family under 25 U.S.C. § 1912(d) (2001) is unreasonable.

These are issues of federal law that have not been decided by either the United States Supreme Court or any Colorado appellate court. However, they have been resolved in several other states. We reject each of stepmother's arguments based on the majority view among those courts.

The trial court's interpretation of the ICWA is a question of law that we review de novo. See Elrick v. Merrill, 10 P.3d 689, 699 (Colo.App.2000). When interpreting a statute, our objective is to effectuate congressional intent and purpose. We read the statute as a whole, giving sensible effect to all its parts whenever possible. If the statutory language is clear, we apply the plain and ordinary meaning, unless the result would be absurd or unreasonable. Tate v. Colo. Dep't of Revenue, 155 P.3d 643, 647 (Colo.App. 2007).

In the exercise of its exclusive constitutional authority over Indian affairs, Congress enacted the ICWA, which established minimum standards for the removal of Indian children from their families. B.H. v. People in Interest of X.H., 138 P.3d 299, 301-02 (Colo.2006). The statute provides "there is no resource that is more vital to the continued existence and integrity of Indian tribes than their children." 25 U.S.C. § 1901(3) (2001). Its purpose is to promote stability and security of Indian tribes. 25 U.S.C. § 1902 (2001). It protects the tribal interest in Indian children by recognizing that the tribe has an interest in such children which is distinct from, but in parity with, the interests of the parents. Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 53, 109 S.Ct. 1597, 104 L.Ed.2d 29 (1989)(Holyfield); B.H. v. People in Interest of X.H., 138 P.3d at 303.

III. Application of the ICWA in Stepparent Adoptions

Stepmother first contends the ICWA does not apply in stepparent adoptions or where a child will remain with one biological parent after the adoption. We consider and reject both contentions.

A. Stepparent Adoptions

Courts in several states have concluded that the ICWA applies in stepparent adoption cases. See In re Crystal K., 226 Cal.App.3d 655, 662-66, 276 Cal.Rptr. 619, 622-26 (1990); In re Adoption of R.L.A., 147 P.3d 306, 308-09 (Okla.Civ.App.2006); State in Interest of D.A.C., 933 P.2d 993, 997-1001 (Utah Ct.App.1997). Other states have applied the ICWA to non-dependency, non-stepparent, adoption petitions. D.J. v. P.C., 36 P.3d 663, 673 (Alaska 2001)(the ICWA applies to termination proceeding where the state is not the petitioning party); A.B.M. v. M.H., 651 P.2d 1170, 1172-74 (Alaska 1982)(kinship adoption); In re Baby Boy C., 27 A.D.3d 34, 41-43, 805 N.Y.S.2d 313, 318-27 (2005)(parent voluntarily placing child with adoptive family); In re Baby Boy L., 103 P.3d 1099, 1103-07 (Okla.2004) (same).

We are persuaded by these decisions and conclude that the ICWA applies to stepparent adoptions.

In so holding, we recognize that Congress enacted the ICWA to address rising concern over the consequences to Indian children and tribes of abusive state and county child welfare practices which separated many Indian children from their families and tribes through adoption by strangers. See Holyfield, 490 U.S. at 32, 109 S.Ct. 1597. Nevertheless, the ICWA's plain language is not limited to action by a social services department. Under the ICWA, a "child custody proceeding" encompasses "any action resulting in the termination of the parent-child relationship" and "any action resulting in a final decree of adoption." 25 U.S.C. § 1903(1)(ii), (iv) (2001).

Here, had stepmother succeeded, mother's parental rights would have been terminated when the adoption decree issued. Thus, this proceeding is a "child custody proceeding" within the meaning of the ICWA. See In re Crystal K., 226 Cal.App.3d at 661-66, 276 Cal.Rptr. at 622-25; In re Adoption of R.L.A., 147 P.3d at 309.

Further, Congress excepted only dissolution and delinquency proceedings from this broad definition of a "child custody proceeding" under the ICWA. 25 U.S.C. § 1903(1) (2001); In re Crystal K., 226 Cal.App.3d at 662, 276 Cal.Rptr. at 622. Hence, we discern no congressional intent to exempt stepparent adoptions from the ICWA. See In re Marriage of Chalat, 112 P.3d 47, 57 (Colo. 2005)("when the legislature speaks with exactitude, we must construe the statute to mean that the inclusion or specification of a particular set of conditions necessarily excludes others" (quoting Lunsford v. W. States Life Ins., 908 P.2d 79, 84 (Colo.1995))); Riley v. People, 104 P.3d 218, 221 (Colo.2004) (the presence of one exception is generally construed as excluding other exceptions).

We also recognize that the legislative history does not show that Congress discussed stepparent adoption when addressing the ICWA. But Congress is presumed to be aware of existing law. See Colo. Water Conservation Bd. v. City of Central, 125 P.3d 424, 434 (Colo.2005).

Colorado has had a stepparent adoption statute since 1967. Colo. Sess. Laws 1967, ch. 443, §§ 22-4-6, 22-4-7 at 1018, § 1. Other state statutes allowing stepparent adoption also predated the ICWA. See, e.g., Cal. Civ.Code §§ 224, 226.9 (1963); Idaho Code Ann. §§ 16-1504, 16-2005. (1963 & Supp. 1970); N.M. Stat. Ann. §§ 22223, 22226 (Supp.1975); Okla. Stat. Ann. tit. 10 § 60.57 (1966); Tex. Fam.Code Ann. §§ 15.02, 16.03 (1975 & Supp.1976). Cases addressing stepparent adoption date back to 1916. See Buck v. Meyer, 195 Mo.App. 287, 190 S.W. 997, 997-99 (1916); Heath v. Cuppel, 163 Wis. 62, 157 N.W. 527, 529 (1916).

Thus, because Congress was presumably aware of stepparent adoptions when it enacted the ICWA, we conclude that had it intended to exclude such proceedings, it would have done so.

Stepmother further argues that the ICWA does not apply here because a stepparent adoption is a voluntary proceeding when the state is not the petitioning party. However, the distinction between voluntary and involuntary proceedings depends on whether the parent whose parental rights are at issue concedes the termination, not on whether the state initiates the...