Matter of Baby Boy C.

• Citation: 2005 NY Slip Op 09259,805 N.Y.S.2d 313,27 A.D.3d 34
• Decision Date: 06 December 2005
• Docket Number: 6451.
• Parties: In the Matter of BABY BOY C. JEFFREY A., et al., Respondents; TOHONO O'ODHAM NATION, Intervenor-Appellant.
• Court: New York Supreme Court Appellate Division

27 A.D.3d 34

805 N.Y.S.2d 313

2005 NY Slip Op 09259

In the Matter of BABY BOY C. JEFFREY A., et al., Respondents;

TOHONO O'ODHAM NATION, Intervenor-Appellant.

6451.

Appellate Division of the Supreme Court of the State of New York, First Department.

December 6, 2005.

APPEAL from an order of the Family Court, New York County (Mary E. Bednar, J.), entered on or about January 19, 2005. The order denied the motion by appellant Indian tribe to intervene in an adoption proceeding involving an "Indian child" based upon a determination adopting the "existing Indian family" exception to the Indian Child Welfare Act of 1978, and directed the adoption to proceed.

Rosin & Reiniger, New York City (Benjamin J. Rosin and Samuel F. Daughety of counsel), for appellant.

Magovern & Sclafani, New York City (Frederick J. Magovern of counsel), for respondents.

Law Office of Randall S. Carmel, Hastings-on-Hudson (Randall S. Carmel of counsel), Law Guardian.

Bertram E. Hirsch, Great Neck; Jack F. Trope, Rockville, Maryland; and Mark C. Tilden, Boulder, Colorado, for St. Regis Mohawk Tribe and others, amici curiae.

OPINION OF THE COURT

GONZALEZ, J.

This is an adoption proceeding in which the Tohono O'odham Nation, a federally recognized Indian tribe, seeks to intervene pursuant to the Indian Child Welfare Act of 1978 (ICWA; 25 USC § 1901 et seq.) upon the ground that this is a "child custody proceeding" involving an "Indian child," as those terms are defined in ICWA. Family Court denied intervention under ICWA, instead adopting the judicially created "existing Indian family" (EIF) exception, which avoids the application of ICWA in circumstances where the court determines that the child is not part of an existing Indian family. Family Court also concluded that the EIF exception was necessary to uphold the constitutionality of ICWA where, as here, the child and his family lack significant ties to an Indian tribe or culture.

The EIF exception to ICWA is a matter of first impression in the appellate courts of this State and its validity has been the subject of conflicting decisions from other jurisdictions' courts. Based on our review of these authorities and the submissions of the parties, the law guardian and amici, we conclude that the EIF exception directly conflicts with the express language and purpose of ICWA, as well as the rationale of the United States Supreme Court's decision in Mississippi Band of Choctaw Indians v Holyfield (490 US 30 [1989]). Therefore, we decline to accept it as the law of New York.

We further find that although ICWA is generally applicable to this proceeding, it does not expressly authorize tribal intervention in adoption proceedings as a matter of right (25 USC § 1911 [c]). Nevertheless, because the Tribe has a significant interest in having ICWA applied to this adoption proceeding, it should be permitted to intervene under CPLR 1013. Accordingly, the matter should be remanded for further proceedings on the adoption petition, which must be evaluated in accordance with ICWA's substantive provisions.

Facts

Baby Boy C. was born in California on March 22, 2004 to Rita C. (Rita) and her boyfriend Justin W. (Justin). Rita is one-half Native American Indian and is a registered member of the Tohono O'odham Nation tribe (Tribe). Justin is Caucasian and Jewish. On April 13, 2004, Rita and Justin executed extrajudicial consents in Arizona to the termination of their parental rights and the adoption of the child by petitioners Jeffrey A. and Joshua A., who have been certified as qualified adoptive parents in New York. Included in Rita's executed consent were representations that she was a member of the Tribe, that the child may be an "Indian child" under ICWA and that she was aware of the placement preferences in ICWA but desired that they be waived, and that a finding of good cause be entered to permit the child's adoption by petitioners.

On April 26, 2004, the Superior Court of Arizona certified that the consents to the adoption and relinquishment of parental rights were validly made, and it subsequently issued an order terminating Rita's and Justin's parental rights. The Tribe did not appear in the Arizona proceedings, although it apparently had notice of them. Meanwhile, petitioners took custody of the child, returned to New York and commenced this adoption proceeding in April 2004.

On June 23, 2004, the Tribe moved to intervene in the adoption proceeding as a matter of right under ICWA, or, alternatively, pursuant to CPLR 1013.¹ The Tribe argued that Rita's relinquishment of her parental rights implicated the Tribe's right under ICWA to protect its relationship with its children, and that 25 USC § 1911 (c) conferred standing on the Tribe to intervene in this proceeding. In opposition, petitioners argued that ICWA was not applicable here since, under the EIF exception, ICWA's purpose of preserving Indian families and tribal culture was not served where the Indian child and parents have not maintained a significant relationship with the Tribe. Petitioners also contended that ICWA was constitutionally flawed in the absence of the EIF exception.

In a preliminary decision dated August 24, 2004 (5 Misc 3d 377 [2004]), Family Court found that the Tribe's motion to intervene could not be decided on the submitted papers. However, after analyzing the conflicting authorities, the court adopted the EIF exception, holding that it was necessary to uphold ICWA's constitutionality because otherwise it would not be rationally related to its goal of preserving tribal stability in situations where there was no existing Indian family (id. at 385). The court ordered a hearing at which the Tribe would have the burden of proving that the child was part of an existing Indian family. In the event the Tribe failed to meet this burden, the court indicated it would permit intervention under CPLR 1013 and hold a best interests hearing.

The court held the EIF hearing on October 1, 2004, and the primary witnesses were Rita and her mother, Elizabeth C.² The evidence showed that Elizabeth is a member of the Tribe and is presently employed as a supervisor in its Human Services Department. Rita's father is not Native American nor a member of the Tribe. Elizabeth's mother was 100% Tohono Indian, while her father was of Italian descent. Rita was born at the Phoenix Indian Medical Center at a time when it was open only to descendants of Native Americans. After her birth, she went through a baby ceremony at the reservation conducted by the Tribe's medicine man. Rita lived on the reservation from ages two to five, but otherwise spent most of her youth living in Phoenix with Elizabeth and Elizabeth's parents.³ Rita has three brothers, all of whom are members of the Tribe, as are all of Elizabeth's relatives.

While growing up, Rita visited the reservation seven or eight times a year and her relatives who lived there also came to Phoenix to visit. When she was 12, Rita had a woman's ceremony, signifying the passage from childhood to womanhood, performed by the Tribe's medicine man. During her elementary and high school years, Rita attended non-Indian public schools. Rita went to a community college with financial assistance from the Tribe and also received mining and gaming distributions based on her membership in the Tribe.

Rita severed nearly all her ties to the Tribe as an adult. She has no interest in tribal policies and rarely visits the reservation. She has not participated in any Indian cultural events since was 12 years old and has no interest in them. She does not observe any Indian customs or practices and does not socialize with any members of the Tribe, except for her brothers. She has severed all contact with her maternal grandmother. Rita was married on two prior occasions to non-Indians in civil ceremonies. She had a child with each man and neither child is being raised in an Indian setting. Rita testified that she has no interest in the subject child being raised in the tribal culture.

In a posthearing decision dated October 26, 2004, Family Court found that ICWA did not apply since the Tribe failed to meet its burden of proving that the subject child was part of an "existing Indian family." The court found that Rita's ties to the Tribe were mainly in her childhood and adolescence, but that as an adult she had "divorced herself from the community affairs, politics and social and religious life of the Tribe," thereby demonstrating a "rejection of her Indian heritage." Rita's rejection of her own Indian heritage, in turn, "has acted to break the link between the Tribe and Rita's nuclear family."

The matter was subsequently set down for a best interests hearing. The parties rested on the existing record, after which the court issued an oral decision finding that it was in the best interests of the subject child for the proposed adoption to go forward. The written order being appealed was entered January 19, 2005, reflecting the above.

On March 25, 2005, this Court granted the Tribe's motion for leave to appeal Family Court's order and issued a stay of the adoption pending determination of the appeal. A Law Guardian was assigned to represent the subject child on appeal. On May 3, 2005, the St. Regis Mohawk Tribe, the National Indian Child Welfare Association and the Association of American Indian Affairs were granted leave as amici curiae to file a brief in support of the Tribe's position.

Discussion

On appeal, the Tribe makes three primary arguments. First, it contends that since the two statutory criteria for the application of ICWA were met, Family Court was required to apply its provisions, including those relating to tribal intervention and placement preferences. Second, it argues that the court erred in adopting the judicially created EIF exception because it is contrary to the plain language of ICWA and one of its core purposes of protecting and preserving the interests of Indian tribes in their children....