MATTER OF BABY BOY C.

• Decision Date: 24 August 2004
• Citation: 5 Misc.3d 377,784 N.Y.S.2d 334
• Parties: In the Matter of the Adoption of BABY BOY C.
• Court: New York Family Court

5 Misc.3d 377

784 N.Y.S.2d 334

In the Matter of the Adoption of BABY BOY C.

August 24, 2004.

Rosin & Reiniger, New York City (Benjamin Rosin of counsel), for Tohono O'odham Nation.

Magovern & Sclafani, New York City (Frederick Magovern of counsel), for adoptive parents.

Alexander Carlin, New York City, guardian ad litem.

OPINION OF THE COURT

MARY E. BEDNAR, J.

This decision addresses the applicability of the Indian Child Welfare Act (25 USC § 1901 et seq. [ICWA]) to the instant private adoption proceeding — an issue which has rarely been written on in New York State. The subject child was born in Arizona on March 22, 2004, and the adoptive parents took almost immediate possession of him. The child has been living with the adoptive parents ever since.

On April 13, 2004 the child's mother and father signed extrajudicial consents in Arizona to the adoption of the child by the adoptive parents. Attached to the mother's extrajudicial consent is an affidavit which, in part, states: "My religion is none but the adoptive child has not been baptized into any religion. It is my understanding that Joshua and Jeffrey are Jewish and the adoptive child's religious affiliation of training will probably be Jewish. I have no preference with respect to the adoptive child's religious affiliation, and approve and agree that the adoptive child be brought up in the Jewish faith." On April 26, 2004 the biological parents signed a judicial surrender before a judge of the Cocino County Superior Court of Arizona.

On May 25, 2003 the Tohono O'odham Nation informed me by letter that the child's mother is a registered member of the tribe^[1] and that the child is eligible for membership in the Tohono O'odham Nation. The letter stated that the tribe was opposed to the instant adoption and that the ICWA should apply to these proceedings. Anticipating that the tribe would move to intervene, I assigned a social worker to assess the adoptive parents' household.

On June 25, 2004 the tribe filed a motion to intervene and the adoptive parents filed an affirmation in opposition to intervention. The tribe subsequently filed answering papers, which were in turn answered by the adoptive parents. The adoptive parents also filed a motion to have the tribe's attorney, Ben Rosin, Esq., disqualified from these proceedings, because one of the parents interviewed Mr. Rosin by telephone while looking for an attorney to represent him, and claims to have conveyed confidential information during the conversation. Mr. Rosin asserts that in their conversation they only talked about the case in general terms, and that no confidential information was revealed.

The social worker has filed her report, which concludes that the child is well taken care of. I have assigned a guardian ad litem to represent the child's best interests.

The ICWA (25 USC § 1901 et seq.) was passed by the United States Congress in 1978 "to protect the best interests of Indian children and to promote the stability and security of Indian tribes and families . . ." (25 USC § 1902). Congress recognized "that there is no resource that is more vital to the continued existence and integrity of Indian tribes than their children" (25 USC § 1901 [3]).

The ICWA gives Indian tribes the right to intervene "[i]n any state court proceeding for the . . . termination of parental rights to[] an Indian child." (25 USC § 1911 [b].) Termination of parental rights is defined as "any action resulting in the termination of the parent-child relationship." (25 USC § 1903 [1] [ii].) The act imposes guidelines for the voluntary relinquishment of parental rights (25 USC § 1913) and mandates that "[i]n any adoptive placement of an Indian child under State law, a preference shall be given, in the absence of good cause to the contrary" to a placement with an Indian family. (25 USC § 1915 [a].)

In their memorandum of law the adoptive parents contend that the ICWA does not apply in this case because the child's mother neither developed an Indian identity nor involved herself with the Tohono O'odham Nation. In making this argument the adoptive parents ask that I apply the so-called existing Indian family doctrine (EIF), which "precludes application of the ICWA when the Indian child's parent . . . ha[s] not maintained a significant social, cultural, or political relationship with . . . her tribe." (Matter of Baby Girl S., 181 Misc 2d 117, 122 [Sur Ct, Westchester County 1999] [internal quotation marks omitted].)

The adoptive parents claim that Congress' acceptance of the EIF doctrine can be read into its 1987 rejection of amendments to the ICWA, which would have negated the doctrine.

The adoptive parents next contend that the ICWA is inapplicable here because the biological mother wants the children raised in the Jewish faith, which is the biological father's religion. They interpret Social Services Law § 373 — which requires that New York courts try to place adoptive children with caretakers who share the same religion as the children — as mandating that the subject child be placed in a Jewish home. The adoptive parents also claim that the ICWA is inapplicable to private placement adoptions and that application of the ICWA under the facts at bar would violate the Fifth, Tenth and Fourteenth Amendments of the US Constitution.

The tribe seeks to intervene pursuant to 25 USC § 1911, as the proceedings could result in the termination of the parent-child relationship. In their response papers the tribe notes that cases which favor the EIF doctrine are only persuasive authority, and they urge me to follow cases from foreign jurisdictions which reject the doctrine. The tribe moves in the alternative that intervention be allowed through Civil Practice Law and Rules § 1013.

The tribe counters the adoptive parents' argument concerning Social Services Law § 373 by claiming that Jewish law does not recognize the child as Jewish, since the mother is gentile. The tribe goes on to aver that Congress' failure to adopt the 1987 amendments is insufficient proof of its intent regarding the EIF doctrine. They address the adoptive parents' constitutional objections by noting that several courts have rejected this line of attack.

I find that the ICWA is implicated in this case because the parental consents would be invalidated if the ICWA applied (see, 25 USC § 1913), making this a proceeding to terminate parental rights (cf., Matter of J.B., 900 P2d 1014 [Okla 1995] [where tribe was prohibited from intervening since state court executed the termination of parental rights in accordance with the ICWA, meaning that the proceeding could no longer be one to terminate parental rights]). The question presented, thus, is whether the EIF doctrine applies to the instant matter.

The EIF doctrine was announced in Matter of Adoption of Baby Boy L. (231 Kan 199, 643 P2d 168 [1982]), which involved a non-Indian mother and an Indian father who had no connection to Indian life. The mother put her child up for adoption shortly after birth, the father's rights were terminated (presumably not in accordance with the ICWA), and the tribe asked to intervene. The trial court ruled that the ICWA was inapplicable, and the tribe appealed. The appeals court affirmed. In so doing they reasoned:

"A careful study of the legislative history behind the Act and the Act itself discloses that the overriding concern of Congress . . . 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 primary cultural heritage and placed in an Indian environment over the express objections of the non-Indian mother." (Baby Boy L., supra, 231 Kan at 205-206, 643 P2d at 175.)

Some cases following Baby Boy L. have highlighted its suggestion that the ICWA's viability in a given situation turns on whether or not the child would likely end up in an Indian environment if the act were applied (see, Matter of Adoption of Crews, 118 Wash 2d 561, 825 P2d 305 [1992]). Other courts relying on Baby Boy L. looked only at the Indian parent's relationship with their Indian heritage (In re Morgan, 1997 WL 716880, 1997 Tenn App LEXIS 818 [Tenn Ct App, Nov. 19, 1997]). Either way, most of the cases invoking the EIF doctrine have reasoned that the exception reflects Congress' intent when it passed the ICWA (see, C.E.H. v L.M.W., 837 SW2d 947 [Mo 1992]; Claymore v Serr, 405 NW2d 650 [SD 1987]; Matter of S.C., 833 P2d 1249 [Okla 1992]; Matter of Adoption of D.M.J., 1985 OK 92, 741 P2d 1386 [1985]; Hampton v J.A.L., 658 So 2d 331 [La 1995]; S.A. v E.J.P., 571 So 2d 1187 [Ala 1990]; Matter of Adoption of T.R.M., 525 NE2d 298 [Ind 1988]).

The only New York case to address the EIF doctrine, Matter of Baby Girl S. (181 Misc 2d 117 [Sur Ct, Westchester County 1999]), has facts similar to the case at bar. Baby Girl S. involved an 11-month-old Indian child given up for adoption to a non-Indian couple soon after birth. When the child's tribe asked to intervene under the ICWA the court reasoned:

"The court is persuaded that the ICWA was not intended to apply in circumstances such as these, where: (1) the mother does not live on the reservation, has voluntarily consented to the adoption of her daughter who she relinquished at birth and objects to the intervention of the tribe; (2) the putative father is non-Indian, has not demonstrated any connection to the tribe or to the Indian way of life; and (3) the infant has lived with her prospective adoptive parents throughout these proceedings." (Baby Girl S., supra at 125.)

While denying intervention under the ICWA, the court allowed the tribe to intervene pursuant to CPLR 1013.

The United States Supreme Court addressed the ICWA's jurisdictional reach in Mississippi...