Quinn v. Walters

• Decision Date: 17 March 1993
• Citation: 117 Or.App. 579,845 P.2d 206
• Parties: In the Matter of the Adoption of Loren Kyle Edgar Quinn, a Minor. Peter Gordon QUINN and Kylene Johnson Quinn, Respondents, v. Maki WALTERS, Appellant. A91-010; CA A71493. Court of Appeals of Oregon, In Banc
• Court: Oregon Court of Appeals

Page 206

845 P.2d 206

117 Or.App. 579

In the Matter of the Adoption of Loren Kyle Edgar Quinn, a Minor.

Peter Gordon QUINN and Kylene Johnson Quinn, Respondents, v. Maki WALTERS, Appellant.

A91-010; CA A71493.

Court of Appeals of Oregon,

In Banc.

Argued and Submitted June 1, 1992.

Resubmitted In Banc Oct. 14, 1992.

Decided Jan. 13, 1993.

Reconsideration Denied March 17, 1993.

Review Allowed April 20, 1993.

Craig J. Dorsay, Portland, argued the cause for appellant. With him on the briefs was Meyer & Wyse, Portland.

Mildred J. Carmack, Portland, argued the cause for respondents. With her on the brief were Thomas V. Dulcich and Schwabe, Williamson & Wyatt, Portland.

DE MUNIZ, Judge.

Mother appeals from a judgment granting the Quinns' petition to adopt her child after the trial court denied her motion to dismiss the petition for adoption. ORS 109.350. The Quinns cross-assign as error the admission in evidence of an affidavit of the Registrar of the Cherokee Nation of Oklahoma. On de novo review, ORS 19.125(3), we reverse.

On the day her son was born, mother signed documents to voluntarily relinquish him for adoption to the Quinns. The documents included a consent to adoption, which became irrevocable under state law after certain requirements were met. ORS 109.312(2)(a). Before the adoption judgment was entered, mother filed a revocation of consent to adoption and moved to dismiss the adoption petition. Her revocation was based, in part, on the Indian Child Welfare Act (ICWA), 25 U.S.C. §§ 1901 et seq. She claims that child is an Indian child, as defined in ICWA, and that she is, therefore, entitled to revoke her consent to adoption. See 25 U.S.C. § 1913(c).

According to mother's evidence, she became a member of the Cherokee Nation of Oklahoma a week before the hearing on her motion to dismiss the adoption proceeding, and child was then eligible for membership in the tribe. ¹ If that evidence is true, child is an "Indian child," as defined in ICWA:

" 'Indian child' means any unmarried person who is under age eighteen and is either (a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe[.]" 25 U.S.C. § 1903(4).

The trial court denied mother's motion to dismiss the adoption petition. It held that ICWA does not apply, because mother was not a member of an Indian tribe when the consent became irrevocable under state law. Mother assigns that ruling as error.

The trial court erred. If child met the definition of an Indian child at the time of the hearing, mother is entitled to revoke her consent to adoption. 25 U.S.C. § 1913(c) provides:

"In any voluntary proceeding for termination of parental rights to, or adoptive placement of, an Indian child, the consent of the parent may be withdrawn for any reason at any time prior to the entry of a final decree of termination or adoption, as the case may be, and the child shall be returned to the parent." (Emphasis supplied.)

The plain meaning of that statute is that the consenting parent has until entry of the final adoption or termination judgment to revoke consent to adoption. State adoption law cannot interfere with that federal right. So long as a final decree of adoption or termination has not been entered, the parent can revoke. There is no requirement that membership or eligibility for membership in the tribe must be established before the consent is signed or becomes irrevocable under state law, when consent can become irrevocable without court action.

In reaching its contrary conclusion, the trial court relied on Matter of Adoption of Infant Boy Crews, 60 Wash.App. 202, 803 P.2d 24 (1991), which held that ICWA does not apply to a voluntary adoption, because the mother was not a member of a tribe at the time her parental rights were voluntarily terminated by court order. Under Washington law, the court enters an order approving the petition for relinquishment of the child. That order terminates the relinquishing parent's parental rights. RCW 26.33.090. In Crews, neither the mother nor the child was a member of an Indian tribe when the mother relinquished the child. The trial court entered a final order approving relinquishment and terminating parental rights. Later, but before the adoption was final, the mother established her membership in an Indian tribe and the child's eligibility for membership. The Court of Appeals rejected the mother's attempt to revoke, because the final termination order had been entered before the child became an Indian child as defined by ICWA.

In contrast, here, according to mother's evidence, child became an Indian child before the court had entered a final judgment of termination or adoption. That fact alone distinguishes this case from Crews. If mother establishes that, before the "entry of a final decree of termination or adoption," 25 U.S.C. § 1913(c), child was an Indian child as defined in ICWA, she is entitled to revoke her consent to adoption for any reason up until the time the adoption judgment is entered. There is nothing in ICWA that requires that tribal affiliation be established before the consent is signed or becomes irrevocable under state law.

The dissent would adopt the reasoning used by the Washington Supreme Court in its decision affirming the Court of Appeals in Matter of Adoption of Crews, 118 Wash.2d 561, 825 P.2d 305 (1992), to conclude that ICWA should not apply in this case. That court said that ICWA was not intended to apply

"when an Indian child is not being removed from an Indian cultural setting, the natural parents have no substantive ties to a specific tribe, and neither the parents nor their families have resided or plan to reside within a tribal reservation. In such a situation, whether or when a child meets the definition of 'Indian child' under ICWA is not controlling." 118 Wash.2d at 571, 825 P.2d 305.

It is worth noting that the Quinns do not rely on that reasoning here; their argument is purely related to the timing of the tribal membership. In any event, the analysis is clearly wrong. It adds, as a matter of state law, a requirement to ICWA that Congress did not impose: i.e., that a child who meets the ICWA definition of "Indian child" is nonetheless not protected by ICWA, unless the child is being removed from an existing Indian cultural setting. 117 Or.App. at 591, 845 P.2d at 213.

That is directly in conflict with the idea of tribal sovereignty and the policy of improving tribal ties reflected in ICWA. It also involves exactly the type of state court interference that ICWA was intended to protect against. If ICWA does not apply because the parent is not "Indian" enough for a particular state court, the protection afforded to the child, the parents and the tribe is defeated. As the Supreme Court said:

"It is clear from the very text of the ICWA, not to mention its legislative history and the hearings that led to its enactment, that Congress was concerned with the rights of Indian families and Indian communities vis-a-vis state authorities. * * * Congress perceived the States and their courts as partly responsible for the problem it intended to correct." Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 44, 109 S.Ct. 1597, 1606, 104 L.Ed.2d 29 (1989). (Footnote omitted; emphasis supplied.)

Congress has made the policy decision about the strength of the connection that a parent and child must have with the tribe for ICWA to apply--that the child be a member of the tribe or that the child be eligible for membership and the biological child of a member. 25 U.S.C. § 1903(4). It is not for state courts to add additional requirements, as the dissent would do. ²

The Quinns cross-assign error to the court's admission, over their hearsay objection, of the affidavit of the Registrar of the Cherokee Nation of Oklahoma to show that mother is a member of the tribe and that the child is eligible for membership. Mother makes no argument for the admissibility of the affidavit other than to say that it was properly admitted as part of a stipulation. It was not part of a stipulation. ³ We agree with the Quinns that the affidavit is hearsay and, in the absence of any contention that its admission falls within an exception to the hearsay rule, the trial court erred when it admitted it. See OEC 802.

The Quinns argue that, without the affidavit, mother did not prove that ICWA applied and, therefore, mother could not revoke her consent. They urge us to affirm the adoption judgment on that basis. Because the trial court overruled the hearsay objection and admitted the affidavit, mother never had any reason to offer other evidence on the same issue. The Quinns never challenged the sufficiency of the evidence regarding child's Indian status. ⁴ To say now that, because the evidence that she offered was inadmissible, she has not established one of the elements of her claim, would not only be an improper use of appellate procedure, ⁵ it would also be grossly unfair.

We cannot know whether, had the trial court made the correct ruling on the evidence issue, mother could have presented other, admissible, evidence to prove child's connection with the tribe. Particularly in the light of the fact that there is nothing in the record to indicate that there was a genuine dispute about mother's or child's Indian status or about the accuracy of the information included in the affidavit, we will not use the trial court's error to deny mother the opportunity to meet the objection with admissible evidence.

The dissent laments the injustice of undoing the relationship and bonding that has occurred while this case has made its way through the courts. Under that analysis, however, we could never correct an erroneous custody determination, because of its adverse effects on the child and the adoptive parents.

We must remember that mother did not cause the delay in this case. When she sought to revoke her...