Apr 142017
 

Three-yr-old Lauryn Whiteshield was murdered a little over a month after her arrival to her grandfather’s home in the spring of 2013.
This twenty minute video examines the effect of federal Indian policy on the lives, liberty, and property of U.S. citizens across America.
Although the last two U.S censuses show that 75% of tribal members do not live within Indian Country and many have never had any association with the reservation system, federal policies mandate tribal government jurisdiction over individuals of lineage in several areas.
1) Across America, children who have never been near a reservation nor involved in tribal customs – including multi-racial children with extremely minimal blood quantum – have been removed from homes they love and placed with strangers. Some children have been severely hurt in the process.
2) Women victimized by violence can be denied the option of county court, regardless whether they believe justice cannot be obtained in tribal court.
3) Further, the Department of Interior holds title to the property of millions of individual tribal members. Adult citizens are not allowed to sell or use their property as collateral without permission.
This study looks at the practical impact and documented repercussions of policies that, based solely on a person’s lineage, set limitations on what they may do with their lives, children, and property.

Please share this with your friends.

PLEASE also share with YOUR Congressmen. MANY of them take a stand on all kinds of things – from orphans in Russia to immigrants and refugees from overseas. DEMAND that they take a strong stand for children in the United States – CITIZENS subject to abuse by a law they – Congress – created and MUST remove.

Most especially – share your thoughts on this video with the Chairman of the Senate Committee on Indian Affairs – Senator John Hoeven.

Find your State’s Senator and Congressmen here:
https://www.senate.gov/
https://www.house.gov/

Thank you – and PLEASE Share….

Learn More.

http://DyingInIndianCountry.com

https://www.facebook.com/CAICW.org/

Jun 032014
 
http://caicw.org

Adoptive Couple V. Baby Girl, State ICWA Laws, and Constitutional Avoidance

By: Mark D. Fiddler (fn 1)~
Minnesota State Bar Association Family Law Forum | Vol. 22 No. 2 | Spring 2014
http://www.mnbar.org/msba-home/msba-news/2014/05/13/family-law-forum-vol.-22-no.-2-spring-2014#.WMkEURsrKyI

One of the thorniest questions facing attorneys who practice adoption law is determining whether and how the Indian Child Welfare Act applies to voluntary adoption proceedings, especially cases where the birth mother, whether Indian or not, wishes to consent to adoption and the father does not otherwise have standing or any rights under state law. A raft of questions arise. Does ICWA apply? Does the unwed father have standing? Does the tribe have the right to notice? Does the father have the right to demand a termination trial and remedial efforts before an adoption may proceed? Does a fit birth mother have the right to place her child with non-Indians? Most of these issues were addressed in Adoptive Couple v. Baby Girl, 133 S. Ct. 2552 (2013), a landmark case decided by the United States Supreme Court on June 25, 2013, which dramatically reshapes adoption practice, and casts new doubt on the constitutionality of states’ laws which attempt to expand ICWA beyond its original reach.

The Facts (fn 2)~

While Birth Mother was pregnant with Biological Father’s child, their relationship ended and Biological Father (a member of the Cherokee Nation) agreed to relinquish his parental rights. Birth Mother put Baby Girl up for adoption through a private adoption agency and selected Adoptive Couple, non-Indians living in South Carolina. For the duration of the pregnancy and the first four months after Baby Girl’s birth, Biological Father provided no financial assistance to Birth Mother or Baby Girl. About four months after Baby Girl’s birth, Adoptive Couple served Biological Father with notice of the pending adoption. In the adoption proceedings, Biological Father sought custody and stated that he did not consent to the adoption.

Following a trial, which took place when Baby Girl was two years old, the South Carolina Family Court denied Adoptive Couple’s adoption petition and awarded custody to Biological Father. At the age of 27 months, Baby Girl was handed over to Biological Father, whom she had never met. The State Supreme Court affirmed, concluding that the ICWA applied because the child custody proceeding related to an Indian child; that Biological Father was a “parent” under the ICWA; that §§ 1912(d) and (f) barred the termination of his parental rights; and that had his rights been terminated, § 1915(a)’s adoption-placement preferences would have applied. In a 5-4 decision, the United States Supreme Court reversed, holding:

(1) the Indian Child Welfare Act (ICWA) section conditioning involuntary termination of parental rights for Indian child on a showing regarding merits of continued custody of child by parent does not apply where Indian parent never had custody;
(2) ICWA section providing that party seeking to terminate parental rights to Indian child under state law shall satisfy court that active efforts have been made to provide remedial services and rehabilitative programs designed to prevent breakup of Indian family and that these efforts have proved unsuccessful does not apply where Indian parent abandoned Indian child prior to birth and child had never been in Indian parent’s legal or physical custody; and
(3) ICWA section providing placement preferences for adoption of Indian children does not bar a non-Indian family from adopting an Indian child when no other eligible candidates have sought to adopt the child.

Unpacking Adoptive Couple: when does a “parent” have standing under ICWA?

In adoption proceedings, where paternity timelines in most states are so short to promote early permanence for children, is a “late” custody claimant a “parent” with the full panoply of ICWA rights? Adoptive Couple had argued in the South Carolina Supreme Court that the birth father was not a “parent” with any rights under ICWA. The definition of parent matters, for nearly all of ICWA’s protections hinge on who is and is not a “parent” with standing to assert ICWA rights. Critical in Adoptive Couple was the issue of whether ICWA’s termination of parental rights provision, 25 U.S.C. § 1912 (f), with its stringent requirements of “proof beyond a reasonable doubt”, “qualified expert witness” testimony, and proof of “serious emotional or physical harm”, applies to a putative father who has not timely established paternity under state law.

Under ICWA, “ ’parent’ means any biological parent or parents of an Indian child or any Indian person who has lawfully adopted an Indian child, including adoptions under tribal law or custom. It does not include the unwed father where paternity has not been acknowledged or established.” 25 U.S.C. § 1903(9). Adoptive Couple argued that by using the terms “acknowledged or established,” Congress intended to defer to state law on paternity establishment since there was no body of federal law on paternity, citing the unanimous view of state courts that such matters are the subject of state law. One state supreme court concluded that Congress intended to exclude from ICWA “unwed fathers who have not taken affirmative steps to ensure that their relationship with their child would be recognized.” In the Matter of the Adoption of a Child of Indian Heritage, 543 A.2d 925, 935 (N.J. 1988).

The definition of “parent” in Adoptive Couple was pivotal, because under South Carolina law, the birth father had not taken the required “affirmative steps” to acquire rights to consent (or to withhold consent and block the adoption). This is because birth father had failed to provide support, which under South Carolina law was defined as a “fair and reasonable sum, based on the father’s financial ability, for the support of the child or for expenses incurred in connection with the mother’s pregnancy or with the birth of the child, including, but not limited to, medical, hospital, and nursing expenses.” S.C. Code § 63-9-310(A)(5)(b). South Carolina’s law may at first blush seem strict, but it is not at all uncommon. Indeed, under Minnesota law, a putative father has no right to notice or consent for failure to provide “substantial support” to the child. Minn. Stat. § 259.49, subd. 1(2). (fn 3) In short, Adoptive Couple argued that if a birth father has no rights under state law, what specifically is it in ICWA that accords him greater federal rights? The South Carolina Supreme Court brushed this argument aside, holding the birth father had “established” paternity through a DNA test — without examining what it means to “establish or acknowledge” paternity.

The United States Supreme Court declined to rule on the issue of whether the birth father had standing as a “parent”, holding, [w]e need not — and therefore do not — decide whether Biological Father is a “parent.” fn 4. Rather, assuming for the sake of argument that he is a “parent,” we hold that neither § 1912(f) nor § 1912(d) bars the termination of his parental rights.” Adoptive Couple, 133 S. Ct. at 2560 (emphasis added). In footnote 4, the Court explained, “if Biological Father is not a “parent” under the ICWA, then § 1912(f) and § 1912(d) — which relate to proceedings involving possible termination of “parental” rights — are inapplicable. Because we conclude that these provisions are inapplicable for other reasons, however, we need not decide whether Biological Father is a “parent.”” Id. at fn. 4. (These “other reasons” are discussed below).

The Court’s decision in Adoptive Couple to pass on determining what makes a father a “parent” under § 1903(9) disappointed many adoption attorneys, as it leaves some critical issues in ICWA practice unresolved — chief among them is whether the birth father has the right to notice in ICWA proceedings. A “parent” is entitled to notice of “involuntary” foster care or termination proceedings under ICWA. 25 U.S.C. § 1912. Does a noncustodial father — who, under Adoptive Couple has no right to a termination trial under 1912(f) — still have the right to notice? Under the Minnesota Fathers Adoption Registry, a putative father must register within 30 days of birth in order to have the right to notice. Minn. Stat. § 259.52. What if the Indian father files late? Does a non-custodial putative “parent” under ICWA have to provide his consent to adoption in court under 25 U.S.C. § 1913? Future litigation may tell.

Adoptive Couple: existing Indian family doctrine left unresolved

Also unresolved in Adoptive Couple is the viability of the “existing Indian family doctrine.” In the South Carolina Supreme Court, Adoptive Couple waived invoking the existing Indian family doctrine, a judicial construction of ICWA which conditions ICWA’s application on the sufficiency of a custodial Indian parent’s ties to his or her tribal heritage. See, e.g., Hampton v. J.A.L., 658 So. 2d 331, 336-37 (La. Ct. App. 1995); In re Adoption of Crews, 825 P.2d 305, 310 (Wash. 1992). Courts that have rejected the existing Indian family doctrine have criticized the propriety of examining whether a preexisting Indian family is “Indian” enough to merit protection under ICWA. In re A.J.S., 204 P.3d 543, 551 (Kan. 2009); In re D.A.C., 933 P.2d 993, 999 (Utah Ct. App. 1997); see also Minn. Stat. § 260.771, subd. 2 (rejecting EIF by statute). Rather than invoking this doctrine, Adoptive Couple simply argued there was no preexisting family, period — consisting of Father and Baby Girl. Thus whether an Indian child would be raised in an “Indian-enough” environment was not relevant. Adoptive Couple did not question the birth father’s cultural ties. Despite not even briefing the Court or arguing the existing Indian family doctrine, the South Carolina Supreme Court rejected it. Adoptive Couple v. Baby Girl, 731 S.E.2d 550, 558 fn 17 (S.C. 2012) reversed on other grounds, Adoptive Couple v. Baby Girl, 133 S. Ct. 2552 (2013).

While the United States Supreme Court failed to rule on the validity of the EIF, which it did not even discuss, the Court did clearly hold that ICWA applied: “Baby Girl is an “Indian child” as defined by the ICWA because she is an unmarried minor who “is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe,” § 1903(4)(b). … It is also undisputed that the present case concerns a “child custody proceeding,” which the ICWA defines to include proceedings that involve “termination of parental rights” and “adoptive placement,” § 1903(1).” Adoptive Couple v. Baby Girl, 133 S. Ct. 2552, 2557, fn 1 (2013).

Adoptive Couple: when are § 1912(d) active efforts required?

The South Carolina Supreme Court held that Adoptive Couple had failed to provide “active efforts” to the father by “attempting to stimulate Father’s desire to be a parent or to provide necessary education regarding the role of a parent.” Adoptive Couple v. Baby Girl, 398 S.C. at 640, 731 S.E.2d at 563. 25 U.S.C. § 1912(d) provides in part that any party who seeks “a foster care placement” or the “termination of parental rights” to an Indian child must prove that “active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and that these efforts have proved unsuccessful.” Adoptive Couple had argued that since birth father had never had legal or physical custody of the child, he had never parented the child, and there was simply no Indian family to “break up.” They also argued that § 1912(d) by its own terms does not apply in adoptive placement proceedings.

The United States Supreme Court agreed, holding that that the “active efforts” requirement in § 1912(d) applies only in cases where an Indian family’s “breakup” would be precipitated by the termination of the parent’s rights under 1912(f). As Justice Samuel Alito, explained, Justice Alito: “Section 1912(d) is a sensible requirement when applied to state social workers who might otherwise be too quick to remove Indian children from their Indian families. It would, however, be unusual to apply § 1912(d) in the context of an Indian parent who abandoned a child prior to birth and who never had custody of the child.” He added, “[o]ur interpretation of § 1912(d) is also confirmed by the provision’s placement next to § 1912(e) and § 1912(f), both of which condition the outcome of proceedings on the merits of an Indian child’s “continued custody” with his parent. That these three provisions appear adjacent to each other strongly suggests that the phrase “breakup of the Indian family” [within 1912(d)] should be read in harmony with the “continued custody” requirement.” Id. at 2563.

Adoptive Couple: when is a § 1912(f) termination trial required?

Adoptive Couple had also argued that where the father had no established rights under state law, there was no parent-child relationship to be terminated under 25 U.S.C. §1912(f). While birth father had a biological parent-child relationship, that relationship is incapable of severance — and that is not the kind of parent-child relationship ICWA was designed to protect. Rather, Adoptive Couple argued § 1912(f) protects a pre-existing custodial relationship — whether legal or physical — between a parent and child.

The ICWA provides at 25 U.S.C. §1912(f) that no “termination of parental rights may be ordered” unless supported by “evidence beyond a reasonable doubt, including testimony of qualified expert witnesses, that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child.” The rationale of 1912 (f) is that serious emotional, physical damage to the child will occur if the child is separated unnecessarily from the custodial parent. That § 1912(f) does not create rights out of whole cloth, but instead protects existing custodial rights, is not new or novel under Minnesota case law. The Minnesota Court of Appeals held nearly 20 years ago that § 1912 (f) does not apply to terminate the rights of an Indian father who fails to establish paternity under state law:
“[father’s] paternity action is not an action that can result in the termination of the parent-child relationship. If [father’s] action is unsuccessful, the parent-child relationship between [father] and [child] will not be terminated, it will simply never be established.” J.A.V. v. Velasco, 536 N.W.2d 896 (Minn. App. 1995)(emphasis added), aff’d, Matter of Paternity of J.A.V., 547 N.W 2d 374 (Minn. 1996).

The Supreme Court agreed. Justice Alito wrote, “[u]nder our reading of § 1912(f), Biological Father should not have been able to invoke § 1912(f) in this case, because he had never had legal or physical custody of Baby Girl as of the time of the adoption proceedings. As an initial matter, it is undisputed that Biological Father never had physical custody of Baby Girl. And as a matter of both South Carolina and Oklahoma law, Biological Father never had legal custody either.” Id. As a result, § 1912(f) does not apply in cases where the Indian parent never had custody of the Indian child.” Id. at 2562.

Thus while the Court did not directly address the validity of the existing Indian family doctrine, as discussed above, it did adopt a version of it, albeit “EIF lite” (fn 4), by applying ICWA’s most stringent procedural protections to a father, based not upon the child’s genetic connection to him or the tribe alone, but based upon the father’s actual physical or legal custody of the child.

In this sense, what Adoptive Couple did not get through its first argument — denial of “parent” standing to a father who had stepped forward to establish or acknowledge paternity under state law— it got in its second argument: that regardless of whether the father timely stepped forward and was a “parent”, if the father had never established physical or legal custody, nothing in ICWA would allow him to block an otherwise lawful adoption under state law. This means that a noncustodial putative father is not entitled to a termination trial under ICWA. Thus an adoption proceeding based upon the birth mother’s consent may now be considered a purely voluntary proceeding for which tribal notice is not required under ICWA. See 25 U.S.C. § 1912(a). But see Minn. Stat. § 260.671, subd. 6 (requiring tribal notice in voluntary adoption proceedings). Other provisions of ICWA will apply, however, such as the in-court consent requirements found in 25 U.S.C. § 1913.

Adoptive Couple: but what about those placement preferences?

Adoptive Couple had argued in the South Carolina Supreme Court that once the birth father’s rights were at their end under state law for his failure to provide support, the child was free for adoption. They argued that ICWA’s placement preferences allowed for adoption of an Indian child by non-Indians with the birth mother’s consent. 25 U.S.C. § 1915(a) provides: “[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 (1) a member of the child’s extended family; (2) other members of the Indian child’s tribe; or (3) other Indian families.” Adoptive Couple relied on numerous decisions in other states, which hold that a birth parent’s preference is sufficient to establish good cause. See, e.g., In re N.N.E., 752 N.W.2d 1, 7-8 (Iowa 2008) (citing cases). The South Carolina Supreme Court ignored the argument that mother’s preferences may constitute good cause, and instead held that “bonding, standing alone, should [not] form the basis for deviation from the statutory placement preferences.” Adoptive Couple v. Baby Girl, 731 S.E.2d at 657.

The Supreme Court reversed the judgment of the South Carolina Supreme Court on this score as well, holding “§ 1915(a)’s preferences are inapplicable in cases where no alternative party has formally sought to adopt the child. This is because there simply is no “preference” to apply if no alternative party that is eligible to be preferred under § 1915(a) has come forward.” Adoptive Couple, 133 S. Ct. at 2564. The Court noted that neither the birth father, nor any other family members, nor any other Cherokee families had sought to adopt Baby Girl. Id. On remand to the South Carolina Supreme Court, birth father argued he had the right to petition to adopt. The South Carolina Supreme Court rejected this petition and ordered the family court to finalize the adoption by Adoption Couple, holding “[o]ur original and erroneous decision was premised on the applicability of ICWA to the Birth Father. As a result, the Birth Father’s rights, if any, are determined by the law of the state of South Carolina. While this Court was in error concerning the applicability of ICWA, we have consistently held that under state law, the Birth Father’s parental rights (because of his irrefutable lack of support, interest and involvement in the life of Baby Girl) would be terminated. Therefore, under state law, the Birth Father is precluded from challenging the adoption.” Adoptive Couple v. Baby Girl, 404 S.C. 490, 492, 746 S.E.2d 346, 347 (S.C. 2013).

While birth father then sought to bar enforcement of the South Carolina adoption judgment ordered on remand, this legal gambit ultimately failed when the Oklahoma Supreme Court dissolved its stay of enforcement, thus freeing Baby Girl to be returned to Adoptive Couple on September 24, 2014 — this, roughly four years after the child’s birth. See Brown v. DeLapp, 312 P.3d 918 (Okla. 2013).

While the Court’s holding that the preferences are inapplicable might appear a dramatic setback to tribes, the Court’s holding is far more limited — for the fact remains that in voluntary adoption proceedings based upon the consent of a fit parent, under no circumstances may an adoption be granted without the consent of the parent. See, e.g., Minn. Stat. § 259.24, subd.1(a) Therefore, there cannot be a competing adoption petition filed for the simple reason that the birth parent’s consent to specific adoptive petitioners precludes other persons from invoking the preferences. The Court’s holding finally clarifies that a birth parent’s selection of specific adoptive petitioners, whether Indian or not, may no longer be denied by courts under § 1915 as that section is inapplicable.

Some critics of Adoptive Couple note the decision did not address the provision of the Bureau of Indian Affairs’ ICWA Guidelines that requires a diligent national search of potential adoptive families within the preference placement order, or how that requirement would apply in any other case. Guidelines for State Courts; Indian Child Custody Proceedings, 44 Fed. Reg. 67,584, 67,594, F.3 (a)(iii) (November 26, 1979). Yet the specter of requiring a fit birth parent, or an adoption agency acting on her behalf, to conduct a national search for an Indian adoptive family, when the mother has already selected a couple to her liking, raises troubling due process concerns and ignores the holding of the case. It has long been established that parenthood and child-rearing fall within the most basic and fundamental liberties protected by substantive due process. Troxel v. Granville, 530 U.S. 57, 65-66 (2000). The Court endorsed this argument, holding “[a]s the State Supreme Court read §§ 1912(d) and (f), a biological Indian father could abandon his child in utero and refuse any support for the birth mother — perhaps contributing to the mother’s decision to put the child up for adoption — and then could play his ICWA trump card at the eleventh hour to override the mother’s decision and the child’s best interests… Such an interpretation would raise equal protection concerns.” Adoptive Couple, 133 S. Ct. at 2565 (emphasis added). In the voluntary adoption context, this paternalistic search requirement cannot be applied without trampling on Indian birth parents’ freedom to choose who will raise their children.

Adoptive Couple: straight statutory construction or constitutional avoidance?

Attorneys, judges, and legislators seeking to apply Adoptive Couple — and to know what it permits — first have to know how the Supreme Court got to its result. Thankfully, the Court left a clear trail. Delivering the opinion for the 5-4 majority, Justice Alito wrote,
“[t]he Indian Child Welfare Act was enacted to help preserve the cultural identity and heritage of Indian tribes, but under the State Supreme Court’s reading, the Act would put certain vulnerable children at a great disadvantage solely because an ancestor — even a remote one — was an Indian. As the State Supreme Court read §§ 1912(d) and (f), a biological Indian father could abandon his child in utero and refuse any support for the birth mother — perhaps contributing to the mother’s decision to put the child up for adoption — and then could play his ICWA trump card at the eleventh hour to override the mother’s decision and the child’s best interests. If this were possible, many prospective adoptive parents would surely pause before adopting any child who might possibly qualify as an Indian under the ICWA. Such an interpretation would raise equal protection concerns, but the plain text of §§ 1912(f) and (d) makes clear that neither provision applies in the present context.” Adoptive Couple 133 S. Ct. at 2565 (emphasis added).

This last sentence should give tribal attorneys pause. As a straight matter of statutory construction, the majority arguably could have construed the phrase “continued custody” in 1912(f) to apply to bar the termination of birth father’s parental rights, despite the fact he only had a biological relationship with the child. Indeed, Justice Scalia, dissenting, wrote that “continued” could mean “merely that initial or temporary custody is not “likely to result in serious emotional or physical damage to the child,” but that continued custody is not likely to do so.” Adoptive Couple at 2570-71. But the majority’s finding that such a broader construction would “raise equal protection concerns” could not be a more clear invocation of the doctrine of constitutional avoidance — that the majority saw the equal protection and due process clauses as requiring the Court to hew closely to the plain language of the text. As the United States Supreme Court has held,“[I]t is a cardinal principle” of statutory interpretation … that when an Act of Congress raises “a serious doubt” as to its constitutionality, “this Court will first ascertain whether a construction of the statute is fairly possible by which the question may be avoided.” Crowell v. Benson, 285 U.S. 22, 62, 52 Sc.D. 285, 76 L.Ed. 598 (1932); See Minn. Stat. § 645.17 (3) (presuming the legislature does not intend to violate the Constitution of the United States or of this state).

What are these “equal protection concerns”? The Court did not elaborate in detail, but the parties’ briefs provide helpful context as a guide. In Adoptive Couple, the birth father, Cherokee Nation, Solicitor, and countless amici, argued there were no such concerns. They argued the application of 1912(d) and (f) to the proceedings to block a valid state adoption, based upon the child’s blood connection alone, did not constitute racial discrimination or run afoul of the equal protection clause because the tribe’s designation of who is a member is a political, not racial, distinction. Under Cherokee law, a child is eligible for membership in the tribe if descended from an Indian on the tribe’s enrollment rolls created by the Dawes Commission in 1906. See CONST. OF THE CHEROKEE NATION, art. IV, § 1. In support, they cited Morton v. Mancari, a 1974 United States Supreme Court decision, which upheld a law granting a hiring preference for Native Americans by the Bureau of Indian Affairs. See 417 U.S. 535 (1974). In that decision, the Court stated that “the preference, as applied, is granted to Indians not as a discrete racial group, but, rather, as members of quasi-sovereign tribal entities . . . .” Id. at 554. This Court has upheld preferential treatment for Indians where the differentiation is a consequence of Indians’ unique sovereign status. Morton v. Mancari, 417 U.S. 535, 553 (1974).

Adoptive Couple argued when the preferences under Sections 1912(d) and 1912(f) are construed to protect preexisting connections between an Indian child and her custodial parent, there is at least the possibility that the child could be exposed to Indian culture through her Indian parent. ICWA’s preferences in those circumstances at least plausibly prevent the unwarranted removal of Indian children from their families and safeguard tribal cultural and social cohesion. 25 U.S.C. § 1901.

However, Adoptive Couple argued that such differential treatment predicated solely on “ancestral” classification violates equal protection principles, citing Rice v. Cayetano, 528 U.S. 495 at 514, 517 (2000). Adoptive Couple argued that ICWA’s legitimacy evaporates if unwed fathers with no preexisting substantive parental rights receive a statutory preference based solely on the Indian child’s race. In that circumstance, “[i]f tribal determinations are indeed conclusive for purposes of applying ICWA, and if . . . a particular tribe recognizes as members all persons who are biologically descended from historic tribal members, then children who are related by blood to such a tribe may be claimed by the tribe, and thus made subject to the provisions of ICWA, solely on the basis of their biological heritage.” In re Bridget R., 49 Cal. Rptr. 2d 507, 527 (Cal. Ct. App. 1996). When unequal treatment is predicated on a status unrelated to social, cultural, or political ties, but rather blood lineage, the ancestry underpinning membership is “a proxy for race.” Rice, 528 U.S. at 514.

The Adoptive Couple majority did not hold that Morton constituted a “blanket shield” to any preferential treatment of Indians. Indeed, it never even mentioned the decision. For had the Court found that Morton shielded sections 1912(d) and (f) from equal protection scrutiny — because they were supposedly applied based upon the child’s “political” as opposed to racial status — it would not have found that their application raised any “equal protection concerns.” Conversely, the Court did not suggest in its analysis that Sections 1912(d) and (f) would have raised equal protection concerns when applied to a custodial parent of an Indian child. (fn 6) For in that instance the child’s connection to the tribe would have proved to be more than racial — it would have meant she was enmeshed in a real Indian family with a custodial parent. Thus at a minimum, Adoptive Couple stands as a clear signal from the Court that the application of ICWA, and perhaps other Indian preference statutes, cannot be based merely upon a person’s lineal or blood connection with a tribe. Something more is required. In Adoptive Couple, it was the requirement of parental custody. What that “more” will be in other contexts will no doubt be the subject of further litigation.

Adoptive Couple: impact on state ICWA laws

Many states have adopted laws that purport to expand upon or provide higher protections to Indian parents or custodians than exist under ICWA itself. Indeed, ICWA permits them to do so. Under 25 U.S.C. § 1921, [i]n any case where State or Federal law applicable to a child custody proceeding under State or Federal law provides a higher standard of protection to the rights of the parent or Indian custodian of an Indian child than the rights provided under this subchapter, the State or Federal court shall apply the State or Federal standard.” (emphasis added). Interestingly, in § 1921 the higher standards to be applied must be applied to the parents or custodians of an Indian child — not to the child.

Minnesota adopted the Minnesota Indian Family Preservation Act (MIFPA) in accordance with § 1921. Several provisions of MIFPA raise the same “equal protection concerns” the Supreme Court sought to avoid in Adoptive Couple. For instance, MIFPA defines“ Indian child” as “an unmarried person who is under age 18 and is: ( 1) a member of an Indian tribe; or
 (2) eligible for membership in an Indian tribe. Minn. Stat. § 260.755, subd. 8. By contrast, the federal definition of “Indian child” under ICWA is more restrictive: “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). It is now clear under Adoptive Couple, that while ICWA in general may apply based upon the child’s eligibility for membership — and being the child of a member — the application of ICWA, in toto, based upon the child’s genetic or racial connection to the tribe alone, forces the same equal protection concerns Adoptive Couple sought to avoid by making its stringent protections applicable to custodial parents who were tribal members.

Likewise, MIFPA makes ICWA’s sections 1912(d) and (f) applicable — irrespective of whether a parent has had custody of an Indian child. Minn. Stat. § 260.771, subd. 2, provides, “[t]his chapter and the federal Indian Child Welfare Act are applicable without exception in any child custody proceeding, as defined in the federal act, involving an Indian child. This chapter applies to child custody proceedings involving an Indian child whether the child is in the physical or legal custody of an Indian parent, Indian custodian, Indian extended family member, or other person at the commencement of the proceedings.” This subdivision thus squarely achieves what the Supreme Court sought to avoid in Adoptive Couple — reaching a result that offends equal protection by making such sections applicable on the basis of race alone. Its constitutional validity is now highly dubious.

Other states, too, have passed laws which grant the noncustodial father the right to ICWA termination trial, purportedly “exempting” them from the reach of Adoptive Couple. See, e.g., California Welfare and Institutions Code Section 224(a) states: (2) (“It is in the interest of an Indian child that the child’s membership in the child’s Indian tribe and connection to the tribal community be encouraged and protected, regardless of whether the child is in the physical custody of an Indian parent or Indian custodian at the commencement of a child custody proceeding, the parental rights of the child’s parents have been terminated, or where the child has resided or been domiciled.”). Application of the heightened procedural protections in Section 1912 to a father who has never had custody or parented the child, and solely on the basis of a child’s racial connection to a tribe, resurrects the grave equal protection concerns the Supreme Court sought to lay to rest in Adoptive Couple by limiting Section 1912’s application to Indian families where a parent had custody.

ICWA was passed in 1978 with a laudable purpose. Congress found that “an alarmingly high percentage of Indian families [were being] broken up by the removal, often unwarranted, of their children from them by nontribal public and private agencies.” 25 U.S.C. § 1901(4). Under Adoptive Couple v. Baby Girl, the United States Supreme Court has set out some boundary lines as to how far ICWA may be extended before this laudable purpose becomes suspect and ICWA itself undermined. In that sense, the case remains an important reminder that ICWA is not a sui generis body of law, but rather must be understood and construed consistently with equal protection principles, respect for the due process rights of fit birth parents wishing to make decisions about the future care of their children, and ultimately the best interests of Indian children.

1 Mark D. Fiddler was co-counsel to the adoptive couple before the South Carolina Supreme Court and the United States Supreme Court. Editorial assistance provided by Jason Teiken, Esq.

2 Taken verbatim from opinion. Adoptive Couple v. Baby Girl, 133 S. Ct. 2552, 2554-2555 (2013). No U.S. Reporter citation for this case yet.

3 The United States Supreme Court has been clear that “[p]arental rights do not spring full-blown from the biological connection between parent and child. They require relationships more enduring.” Lehr v. Robertson, 463 U.S. 248, 260 (1983). An unwed father’s parental rights are constitutionally protected only if he has “demonstrate[d] a full commitment to the responsibilities of parenthood by com[ing] forward to participate in the rearing of his child.” Lehr, 463 U.S. at 261 (emphasis added).

5 http://www.scotusblog.com/case-files/cases/adoptive-couple-v-baby-girl/

6 The ICWA defines “Indian child” as “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).

http://www.mnbar.org/msba-home/msba-news/2014/05/13/family-law-forum-vol.-22-no.-2-spring-2014#.WMkEURsrKyI

Jul 182013
 

By Elizabeth Sharon MorrisAdoptive Couple vs Baby Girl

On June 17, 2013, the South Carolina Supreme Court gave Matt & Melanie Capobianco a victory in Adoptive Couple v. Baby Girl in remanding to Family Court for prompt entry of an order approving and finalizing Adoptive Couple’s adoption of Baby Girl.

The Christian Alliance for Indian Child Welfare is relieved that Veronica will be returned to the parents chosen by her birth mother, who, according to the SCOTUS, was the only legal parent and had sole right to decide her child’s best interest.

SCOTUS has confirmed that State law determining abandonment trumps the Indian Child Welfare Act. In doing this, the Court has slightly limited ICWA. This is a good first step in the effort to stop the hurt ICWA is causing children and families across the United States.

We have a long way to go to unshackle other families begging help. To meet their varied concerns, we need the “best interest of the child,” the rights of non-tribal extended family, the “Existing Indian Family doctrine,” and the wishes of all parents who reject tribal jurisdiction to be held in higher regard than the wishes and demands of governments. Our children are not chattel for tribal government.

CAICW continues to appreciate the June 25th concurring opinion of U.S Supreme Court Justice Clarence Thomas in his citing of the work of Rob Natelson, Senior Fellow in Constitutional Jurisprudence, Independence Institute & Montana Policy Institute, concerning the unconstitutionality of the ICWA.

The Christian Alliance for Indian Child Welfare (CAICW) is both a ministry and advocacy group. CAICW has been advocating since February 2004 for families at risk of harm from the Indian Child Welfare Act (ICWA). Our advocacy has been both judicial and educational, as well as a prayer resource for families and a shoulder to cry on.

Elizabeth Sharon Morris is Chairwoman of the Christian Alliance for Indian Child Welfare and author of ‘Dying in Indian Country.’ http://dyinginindiancountry.com/

Jun 252013
 

Therese's baptism 1994

The Christian Alliance for Indian Child Welfare (CAICW) issued the following statement today in response to the
United States Supreme Court’s decision in
Adoptive Couple v. Baby Girl:
.

The Christian Alliance for Indian Child Welfare is relieved that the IWCA was rightfully limited today. This opinion confirms that the Indian Child Welfare Act does not apply where an Indian parent never had custody of the Indian child.  The case has been sent back to the South Carolina Supreme Court because the State Court had erred in its reading of the federal law. Although we are deeply disappointed that this case is not over, Matt & Melanie will continue to fight for their daughter and we believe that they will prevail and Veronica will return to her family.

There is more work to do. CAICW further appreciates the concurring opinion of Justice Clarence Thomas in his citing of the work of Rob Natelson, Senior Fellow in Constitutional Jurisprudence, Independence Institute & Montana Policy Institute, concerning the unconstitutionality of the ICWA.

Jun 102013
 

This Page is going to be under construction for quite awhile. Please be patient as we allow it to remain online while we work. Although it is no where near in order yet, we know that this information is very important to certain families, so we want them to be able to get what they can as they can…..

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The “existing Indian family doctrine” was first explained in Matter of Adoption Baby Boy L. (Kan., 1982) 643 P.2d 168, which involved an out-of-wedlock child of an Indian father and a non-Indian mother. (In re Alicia S. (1998) 65 Cal.App.4th 79, 83.) The mother had voluntarily relinquished the child at birth for adoption by a specific non-Native American couple, whereupon the father and his tribe invoked the ICWA. In declining to apply ICWA to this situation, the Kansas Supreme Court found that the purposes of the ICWA would not be served by applying it to a situation in which the child had never been a part of an Indian home or culture: “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 primary cultural heritage and placed in an Indian environment over the express objections of its non-Indian mother.” (Matter of Adoption of Baby Boy L., supra, at p. 175.)

A split of authority has developed between state courts adopting the doctrine, and those declining to do so. Following Kansas’s lead, numerous state courts adopted the “existing Indian family doctrine,” refusing to apply the Act where its purpose, the improper removal of Indian children from their Indian families, would not be served. Other states rejected the doctrine, primarily based on a plain language statutory construction of the Act. According to these courts, a narrow focus on the interests of a particular existing family failed to recognize the broader interests of the Indian tribe in preserving tribal culture.

The single United States Supreme Court case addressing the Act, Mississippi Choctaw Indian Band v. Holyfield (1989) 490 U.S. (Holyfield), involved the question whether twin children, whose parents lived on a reservation and traveled to a distant town to give birth to them and relinquish them, were “domiciled” on the reservation within the meaning of the Act. Some courts have construed Holyfield as having raised questions about the continuing viability of the “existing Indian family doctrine” as defined by Baby Boy L. and its progeny, while other courts have construed Holyfield as being limited to its facts, and having no effect on the “existing Indian family doctrine.”

At present, 10 states have adopted the doctrine, six have rejected it, and the position of the remaining states is unclear. fn. 15

Congress considered amending the ICWA to preclude application of the “existing Indian family doctrine” but did not do so. fn. 16 The United States Supreme Court has denied certiorari in two cases involving the “existing Indian family doctrine,” fn. 17 one from Division Three of this district of the California Court of Appeal, In re Bridget R. (1996) 41 Cal.App.4th 1483 (Bridget R.).

 

 

 

 

Bridget R., supra, 41 Cal.App.4th at p. 1507.) “It is almost too obvious to require articulation,” the Court commented, ‘”that the unique values of Indian culture’ [citation] will not be preserved in the homes of parents who have become fully assimilated into non-Indian culture.” (Ibid.) Thus, the Court concluded, absent a showing by the parents of significant social, cultural, or political ties with their Indian heritage, applying the ICWA to remove the children from a home in which they had formed familial bonds would violate the children’s substantive due process rights. Under the circumstances of assimilated parents and a child who has become part of a loving family, the ICWA “can serve no purpose which is sufficiently compelling to overcome the child’s fundamental right to remain in the home where he or she is loved and well cared for, with people to whom the child is daily becoming more and more attached by bonds of affection and among whom the child feels secure to learn and grow. (Id. at pp. 1507-1508.)

Bridget R., supra, 41 Cal.App.4th at p. 1508.) The Court rejected the contention that the ICWA does not create a race-based classification because application of the Act triggered by the child’s membership in the Tribe, holding that “any application of ICWA which is triggered by an Indian child’s genetic heritage, without substantial social, cultural or political affiliations between the child’s family and a tribal community, is an application based solely, or at least predominantly, upon race and is subject to strict scrutiny under the equal protection clause. So scrutinized, and for the same reasons set forth in our discussion of the due process issue, it is clear that ICWA’s purpose is not served by an application of the Act to children who are of Indian descent, but whose parents have no significant relationship with an Indian community. If ICWA is applied to such children, such application deprives them of equal protection of the law.” (Bridget R., supra, at pp. 1509-1510.)

A. Substantive Due Process

Family rights are afforded substantive protection under the due process clause of the Fifth and Fourteenth Amendments. (Santosky v. Kramer (1982) 455 U.S. 745, 753.) fn. 23 The United States Supreme Court ‘”has long recognized that freedom of personal choice in matters of marriage and family life is one of the liberties protected by the Due Process Clause of the Fourteenth Amendment.’ [Citation.]” (Moore v. East Cleveland (1977) 431 U.S. 494 499.) As this district of the Court of Appeal discussed in Bridget R., both the United States and California Supreme Courts have recognized that an individual’s rights respecting family relationships do not necessarily depend upon the existence of a biological connection, and that interests in familial ties which grow between members of a de facto family may outweigh biological relationships in some circumstances. (In re Bridget R., supra, 41 Cal.App.4th at p. 1505.)

The United States Supreme Court has issued several opinions establishing that children are constitutionally protected actors. “[N]either the Fourteenth Amendment nor the Bill of Rights is for adults alone.” (In re Gault (1967) 387 U.S. 1, 13.) ‘”Constitutional rights do not mature and come into being magically only when one attains the state-defined age of majority. Minors, as well as adults, are protected by the Constitution and possess constitutional rights.’ [Citation.]” (Troxel v. Granville (2000) 530 U.S. 57, 89, fn. 8 (dis. opn. of Stevens, J.).) fn. 24 While the United States Supreme court has reserved the issue of deciding the nature of a child’s liberty interests in preserving established familial or family-like bonds (Michael H. v. Gerald D. (1989) 491 U.S. 110, 130), our Supreme Court has declared that “[c]hildren . . . have fundamental rights–including the fundamental right . . . to ‘have a placement that is stable, [and] permanent.'” (In re Jasmon O. (1994) 8 Cal.4th 398, 419, quoting from In re Marilyn H., (1993) 5 Cal.4th at p. 306.) California recognizes that “children are not simply chattels belonging to their parent, but have fundamental interests of their own . . . .” (In re Jasmon O. (1994) 8 Cal.4th 398, 419), and that these interests are of constitutional dimension. (In re Bridget R., supra, at p. 1490.) Prior to Marilyn H., Jasmon O., and Bridget R., in In re Arturo A. (1992) 8 Cal.App.4th 229, California case law “[a]dopt[ed] the proposition that a child has a constitutional right to a reasonably directed early life, unmarked by unnecessary and excessive shifts in custody . . . .” (Id. at p. 242, fn. 6.)

As noted in Bridget R., the right of a child to a familial relationship is “[i]f anything, . . . more compelling than adults’, because children’s interests in family relationships comprise more than the emotional and social interests which adults have in family life; children’s interests also include the elementary and wholly practical needs of the small and helpless to be protected from harm and to have stable and permanent homes in which each child’s mind and character can grow, unhampered by uncertainty and fear of what the next day or week or court appearance may bring. [Citation.]” (In re Bridget R., supra, 41 Cal.App.4th at p. 1504.)

Legislation which substantially interferes with the enjoyment of a fundamental right is subject to strict scrutiny (Sherbert v. Verner (1963) 374 U.S. 398), i.e., it must be set aside or limited unless it serves a compelling purpose and is necessary to the accomplishment of that purpose. Thus, application of the ICWA that fundamentally interferes with the Minor’s right to retain his existing stable familial relationships requires that the statute be subjected to strict scrutiny to determine whether, as applied, it serves a compelling government purpose and, if so, whether its application is actually necessary and effective to the accomplishment of that purpose. (In re Bridget R., supra, 41 Cal.App.4th at p. 1507.)

The test we apply is: (1) whether the tribal interests which the ICWA protects are sufficiently compelling under substantive due process standards to justify the impact implementation of ICWA’s placement preferences would have on the Minor’s constitutionally protected familial rights in his de facto family and, if so, (2) whether the application of ICWA, under the facts of this case, is necessary to further that interest. We do not disagree with the proposition that preserving Native-American culture is a significant, if not compelling, governmental interest. We do not, however, see that interest being served by applying the ICWA to a multi-ethnic child who has had a minimal relationship with his assimilated parents, particularly when the tribal interests “can serve no purpose which is sufficiently compelling to overcome the child’s right to remain in the home where he . . . is loved and well cared for, with people to whom the child is daily becoming more attached by bonds of affection and among whom the child feels secure to learn and grow.” (In re Bridget R., supra, 41 Cal.App.4th at p. 1508.)

The Minor is a party (§ 317.5 (b)), represented by counsel charged with advocating his independent interests (§ 317, subds. (c), (e)). He has defined his best interests as remaining with his de facto family.

#1)   

In re Santos Y, involving the Minnesota Chippewa Tribe, Grand Portage, the court found that “Application of the ICWA to a child whose only connection with an Indian tribe is a one-quarter genetic contribution does not serve the purpose for which the ICWA was enacted, “to protect the best interests of Indian children and to promote the stability and security of Indian tribes and families” (25 U.S.C. § 1902).”   “The analyses pay particular attention to In re Bridget R., and quoted from Bridget R.‘s due process and equal protection analysis at relative length.”

They also said, “We do not disagree with the proposition that preserving Native-American culture is a significant, if not compelling, governmental interest. We do not, however, see that interest being served by applying the ICWA to a multi-ethnic child who has had a minimal relationship with his assimilated parents, particularly when the tribal interests “can serve no purpose which is sufficiently compelling to overcome the child’s right to remain in the home where he . . . is loved and well cared for, with people to whom the child is daily becoming more attached by bonds of affection and among whom the child feels secure to learn and grow.” (In re Bridget R., supra, 41 Cal.App.4th at p. 1508.)”

Finally, Santos states, Congress considered amending the ICWA to preclude application of the “existing Indian family doctrine” but did not do so.”

 

 

#2)

In re Santos Y (2001), the court found that “Application of the ICWA to a child whose only connection with an Indian tribe is a one-quarter genetic contribution does not serve the purpose for which the ICWA was enacted…”   Santos y paid particular attention to In re Bridget R., and quoted from Bridget R.‘s due process and equal protection analysis at length.

 

They also said, “We do not disagree with the proposition that preserving Native-American culture is a significant, if not compelling, governmental interest. We do not, however, see that interest being served by applying the ICWA to a multi-ethnic child who has had a minimal relationship with his assimilated parents, particularly when the tribal interests “can serve no purpose which is sufficiently compelling to overcome the child’s right to remain in the home where he . . . is loved and well cared for, with people to whom the child is daily becoming more attached by bonds of affection and among whom the child feels secure to learn and grow.” (In re Bridget R., supra, 41 Cal.App.4th at p. 1508.)”

 


 

Holyfield – the first case in which the federal high court has construed ICWA,

[ Footnote 8 ] The explanation of this subsection in the House Report reads as follows: “Subsection (b) directs a State court, having jurisdiction over an Indian child custody proceeding to transfer such proceeding, absent good cause to the contrary, to the appropriate tribal court upon the petition of the parents or the Indian tribe. Either parent is given the right to veto such transfer. The subsection is intended to permit a State court to apply a modified doctrine of forum non conveniens, in appropriate cases, to insure [490 U.S. 30, 61] that the rights of the child as an Indian, the Indian parents or custodian, and the tribe are fully protected.” Id., at 21. In commenting on the provision, the Department of Justice suggested that the section should be clarified to make it perfectly clear that a state court need not surrender jurisdiction of a child custody proceeding if the Indian parent objected. The Department of Justice letter stated: “Section 101(b) should be amended to prohibit clearly the transfer of a child placement proceeding to a tribal court when any parent or child over the age of 12 objects to the transfer.” Id., at 32. Although the specific suggestion made by the Department of Justice was not in fact implemented, it is noteworthy that there is nothing in the legislative history to suggest that the recommended change was in any way inconsistent with any of the purposes of the statute.

[ Footnote 9 ] Chief Isaac elsewhere expressed a similar concern for the rights of parents with reference to another provision. See Hearing, supra n. 1, at 158 (statement on behalf of National Tribal Chairmen’s Association) (“We believe the tribe should receive notice in all such cases but where the child is neither a resident nor domiciliary of the reservation intervention should require the consent of the natural parents or the blood relative in whose custody the child has been left by the natural parents. It seems there is a great potential in the provisions of section 101(c) for infringing parental wishes and rights”).

. But when an Indian child is deliberately abandoned by both parents to a person off the reservation, no purpose of the ICWA is served by closing the state courthouse door to them. The interests of the parents, the Indian child, and the tribe in preventing the unwarranted removal of Indian children from their families and from the reservation are protected by the Act’s substantive and procedural provisions. In addition, if both parents have intentionally invoked the jurisdiction of the state court in an action involving a non-Indian, no interest in tribal self-governance is implicated. See McClanahan v. Arizona State Tax Comm’n, 411 U.S. 164, 173 (1973); Williams v. [490 U.S. 30, 64] Lee, 358 U.S. 217, 219 -220 (1959); Felix v. Patrick, 145 U.S. 317, 332 (1892).

In Bridget R. –

[33] As we explain, recognition of the existing Indian family doctrine is necessary in a case such as this in order to preserve ICWA’s constitutionality. We hold that under the Fifth, Tenth and Fourteenth Amendments to the United States Constitution, ICWA does not and cannot apply to invalidate a voluntary termination of parental rights respecting an Indian child who is not domiciled on a reservation, unless the child’s biological parent, or parents, are not only of American Indian descent, but also maintain a significant social, cultural or political relationship with their tribe.

[145] *fn11 We note in passing that Congress in 1987 failed to approve amendments to ICWA which were described in materials considered by the Senate Select Committee on Indian Affairs as having the effect of precluding application of the existing Indian family doctrine. (See Hearings before the Senate Select Com. on Indian Affairs, United States Senate, 100th Cong., 1st Sess. on Oversight Hearings on the Indian Child Welfare Act, Nov. 10, 1987, Appendix B, pp. 167-171.)

In re Alexandria Y. (1996) 45 Cal.App.4th 1483, –

which applied the “existing Indian family doctrine” to a proceeding to terminate parental rights and implement a pre-adoptive placement.

…., the Fourth District held that “recognition of the existing Indian family doctrine [was] necessary to avoid serious constitutional flaws in the ICWA” (In re Alexandria Y., supra, 25 Cal.App.4th at p. 1493), and held that the trial court had acted properly in refusing to apply the ICWA “because neither [the child] nor [the mother] had any significant social, cultural, or political relationship with Indian life; thus, there was no existing Indian family to preserve.” (Id. at p. 1485.)

The court observed that not only did neither the mother nor the child have any relationship with the tribe, but also that the father was Hispanic, and that the child was placed in a preadoptive home where Spanish was spoken. “Under these circumstances,” the court commented, “it would be anomalous to allow the ICWA to govern the termination proceedings. It was clearly not the intent of the Congress to do so.” (Id. at p. 1494.)

From Santos y,

“Application of the ICWA to a child whose only connection with an Indian tribe is a one-quarter genetic contribution does not serve the purpose for which the ICWA was enacted, “to protect the best interests of Indian children and to promote the stability and security of Indian tribes and families” (25 U.S.C. § 1902).”

The court paid “particular attention to In re Bridget R., and quoted from Bridget R.’s due process and equal protection analysis at relative length.”

They also said, “We do not disagree with the proposition that preserving Native-American culture is a significant, if not compelling, governmental interest. We do not, however, see that interest being served by applying the ICWA to a multi-ethnic child who has had a minimal relationship with his assimilated parents, particularly when the tribal interests “can serve no purpose which is sufficiently compelling to overcome the child’s right to remain in the home where he . . . is loved and well cared for, with people to whom the child is daily becoming more attached by bonds of affection and among whom the child feels secure to learn and grow.” (In re Bridget R., supra, 41 Cal.App.4th at p. 1508.)”

Finally, Santos states, “Congress considered amending the ICWA to preclude application of the “existing Indian family doctrine” but did not do so.”

RE: Santos Footnotes, – Existing Family Doctrine:

­FN 15. Accepting the doctrine: Alabama (S.A. v. E.J.P. (Ala.Civ.App. 1990) 571 So.2d 1187); Indiana (Matter of Adoption of T.R.M. (Ind. 1988) 525 N.E.2d 298); Kansas (Matter of Adoption of Baby Boy L. (Kan. 1982) 643 P.2d 168); Kentucky (Rye v. Weasel (Ky. 1996) 934 S.W. 2d 257); Missouri (In Interest of S.A.M. (Mo.App. 1986) 703 S.W.2d 603); New York (In re Adoption of Baby Girl S. (Sur. 1999) 690 N.Y.S. 2d 907); Oklahoma (Matter of Adoption of Baby Boy D. (Ok. 1985) 742 P.2d 1059); Tennessee (In re Morgan (Tenn.Ct.App. 1997) WL 716880); Washington (Matter of Adoption of Crews (Wash. 1992) 825 P.2d 305).

Rejecting the doctrine: Alaska (Matter of Adoption of T.N.F. (Alaska 1989) 781 P.2d 973); Idaho (Matter of Baby Boy Doe (Idaho 1993) 849 P.2d 925); Illinois (In re Adoption of S.S. (Ill. 1995) 657 N.E.2d 935); New Jersey (Matter of Adoption of a Child of Indian Heritage (N.J. 1988) 111 N.J. 155, 543 A.2d 925); South Dakota (Matter of Adoption of Baade (S.D. 1990) 462 N.W.2d 485); Utah (State, in Interest of D.A.C. (Utah App. 1997) 933 P.2d 993.)

United States Code Title 25 – Indians Chapter 21 – Indian Child Welfare

§ 1911. Indian tribe jurisdiction over Indian child custody proceedings

(b) Transfer of proceedings; declination by tribal Court: In any State court proceeding for the foster care placement of, or termination of parental rights to, an Indian child not domiciled or residing within the reservation of the Indian child’s tribe, the court, in the absence of good cause to the contrary, shall transfer such proceeding to the jurisdiction of the tribe, absent objection by either parent, upon the petition of either parent or the Indian custodian or the Indian child’s tribe: Provided, That such transfer shall be subject to declination by the tribal court of such tribe.

(ftn1) – Holyfield – the first case in which the federal high court has construed ICWA,

Mississippi Choctaw Indian Band v. Holyfield, 490 US 30 (1989) Docket No. 87-980, Argued January 11, 1989, Decided April 3, 1989, CITATION: 490 U.S. 30, 109 S.Ct. 1597, 104 L.Ed.2d 29 (1989),

DISCUSSION: I A   The Indian Child Welfare Act of 1978 (ICWA), 92 Stat. 3069, 25 U.S.C. 1901-1963, was the product of rising concern in the mid-1970’s over the consequences to Indian children, Indian families, and Indian tribes of abusive child welfare practices that resulted in the separation of large numbers of Indian children from their families and tribes through adoption or foster care placement, usually in non-Indian homes.

Dissenting footnotes: STEVENS, J., filed a dissenting opinion, in which REHNQUIST, C. J., and KENNEDY, J., joined.

[ Footnote 8 ] The explanation of this subsection in the House Report reads as follows: “Subsection (b) directs a State court, having jurisdiction over an Indian child custody proceeding to transfer such proceeding, absent good cause to the contrary, to the appropriate tribal court upon the petition of the parents or the Indian tribe. Either parent is given the right to veto such transfer. The subsection is intended to permit a State court to apply a modified doctrine of forum non conveniens, in appropriate cases, to insure [490 U.S. 30, 61] that the rights of the child as an Indian, the Indian parents or custodian, and the tribe are fully protected.” Id., at 21. In commenting on the provision, the Department of Justice suggested that the section should be clarified to make it perfectly clear that a state court need not surrender jurisdiction of a child custody proceeding if the Indian parent objected. The Department of Justice letter stated: “Section 101(b) should be amended to prohibit clearly the transfer of a child placement proceeding to a tribal court when any parent or child over the age of 12 objects to the transfer.” Id., at 32. Although the specific suggestion made by the Department of Justice was not in fact implemented, it is noteworthy that there is nothing in the legislative history to suggest that the recommended change was in any way inconsistent with any of the purposes of the statute.

[ Footnote 9 ] Chief Isaac elsewhere expressed a similar concern for the rights of parents with reference to another provision. See Hearing, supra n. 1, at 158 (statement on behalf of National Tribal Chairmen’s Association) (“We believe the tribe should receive notice in all such cases but where the child is neither a resident nor domiciliary of the reservation intervention should require the consent of the natural parents or the blood relative in whose custody the child has been left by the natural parents. It seems there is a great potential in the provisions of section 101(c) for infringing parental wishes and rights”).

. But when an Indian child is deliberately abandoned by both parents to a person off the reservation, no purpose of the ICWA is served by closing the state courthouse door to them. The interests of the parents, the Indian child, and the tribe in preventing the unwarranted removal of Indian children from their families and from the reservation are protected by the Act’s substantive and procedural provisions. In addition, if both parents have intentionally invoked the jurisdiction of the state court in an action involving a non-Indian, no interest in tribal self-governance is implicated. See McClanahan v. Arizona State Tax Comm’n, 411 U.S. 164, 173 (1973); Williams v. [490 U.S. 30, 64] Lee, 358 U.S. 217, 219 -220 (1959); Felix v. Patrick, 145 U.S. 317, 332 (1892).

(Ftn 2) “The 2000 Census indicated that as much at 66 percent of the American Indian and Alaska Native population live in urban areas,” the Senate Indian Affairs Committee wrote in a views and estimates letter on March 2 2007.    http://www.indianz.com/News/2007/001803.asp

(ftn3) 14th Amendment, Section 1: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and therefore have all the privileges or immunities of citizens of the United States. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

(ftn4) From Santos y,

In re SANTOS Y., a Person Coming Under the Juvenile Court Law, In re Santos Y. (2001) , Cal.App.4th

[No. B144822. Second Dist., Div. Two. July 20, 2001.]

“Application of the ICWA to a child whose only connection with an Indian tribe is a one-quarter genetic contribution does not serve the purpose for which the ICWA was enacted, “to protect the best interests of Indian children and to promote the stability and security of Indian tribes and families” (25 U.S.C. § 1902).”

The court paid “particular attention to In re Bridget R., and quoted from Bridget R.’s due process and equal protection analysis at relative length.”

They also said, “We do not disagree with the proposition that preserving Native-American culture is a significant, if not compelling, governmental interest. We do not, however, see that interest being served by applying the ICWA to a multi-ethnic child who has had a minimal relationship with his assimilated parents, particularly when the tribal interests “can serve no purpose which is sufficiently compelling to overcome the child’s right to remain in the home where he . . . is loved and well cared for, with people to whom the child is daily becoming more attached by bonds of affection and among whom the child feels secure to learn and grow.” (In re Bridget R., supra, 41 Cal.App.4th at p. 1508.)”

Finally, Santos states, “Congress considered amending the ICWA to preclude application of the “existing Indian family doctrine” but did not do so.”

(ftn5) In Bridget R. –

In re Bridget R. (1996) 41 Cal.App.4th 1483 (Bridget R.). January 19, 1996 , LLR No. 9601041.CA, Cite as: LLR 1996.CA.41 – The Pomo Twins

[33] As we explain, recognition of the existing Indian family doctrine is necessary in a case such as this in order to preserve ICWA’s constitutionality. We hold that under the Fifth, Tenth and Fourteenth Amendments to the United States Constitution, ICWA does not and cannot apply to invalidate a voluntary termination of parental rights respecting an Indian child who is not domiciled on a reservation, unless the child’s biological parent, or parents, are not only of American Indian descent, but also maintain a significant social, cultural or political relationship with their tribe.

[145] *fn11 We note in passing that Congress in 1987 failed to approve amendments to ICWA which were described in materials considered by the Senate Select Committee on Indian Affairs as having the effect of precluding application of the existing Indian family doctrine. (See Hearings before the Senate Select Com. on Indian Affairs, United States Senate, 100th Cong., 1st Sess. on Oversight Hearings on the Indian Child Welfare Act, Nov. 10, 1987, Appendix B, pp. 167-171.)

(ftn6)  In re Alexandria Y. (1996) 45 Cal.App.4th 1483, –

which applied the “existing Indian family doctrine” to a proceeding to terminate parental rights and implement a pre-adoptive placement.

…., the Fourth District held that “recognition of the existing Indian family doctrine [was] necessary to avoid serious constitutional flaws in the ICWA” (In re Alexandria Y., supra, 25 Cal.App.4th at p. 1493), and held that the trial court had acted properly in refusing to apply the ICWA “because neither [the child] nor [the mother] had any significant social, cultural, or political relationship with Indian life; thus, there was no existing Indian family to preserve.” (Id. at p. 1485.)

The court observed that not only did neither the mother nor the child have any relationship with the tribe, but also that the father was Hispanic, and that the child was placed in a preadoptive home where Spanish was spoken. “Under these circumstances,” the court commented, “it would be anomalous to allow the ICWA to govern the termination proceedings. It was clearly not the intent of the Congress to do so.” (Id. at p. 1494.)


Existing Indian Family Doctrine:

From OKLAHOMAIn the Matter of Child, B.R.W. September 19, 2003

…[59] The earliest case to articulate what later became known as the existing Indian family doctrine was Matter of Adoption of Baby Boy L., supra, 643 P.2d 168. In that case, the Kansas Supreme Court observed that the purpose of ICWA was to maintain family and tribal relationships existing in Indian homes and to set standards for removal of Indian children from an existing Indian environment. (643 P.2d at p. 175.) The court found that the child whose custody was at issue in that case had been relinquished by his non-Indian mother at birth and had never been in the custody of his Indian father. The child thus had never been part of an Indian family relationship. Preservation of an Indian family was therefore not involved in the case; consequently, ICWA did not apply. (643 P.2d at p. 175; see also Matter of Adoption of T.R.M. (Ind., 1988) 525 N.E.2d 298, 303; Claymore v. Serr (S.D., 1987) 405 N.W.2d 650, 654; In the Interest of S.A.M. (Mo., 1986) 703 S.W.2d 603, 609; Adoption of Baby Boy D. (Ok., 1985) 742 P.2d 1059, 1064, cert. den. by Harjo v. Duello (1988) 484 U.S. 1072 [98 L.Ed.2d 1005, 108 S.Ct. 1042].)

[60] While the above cases found ICWA inapplicable because the Indian child himself (or herself) had never lived in an Indian environment, other cases have focused upon the question of whether the child’s natural family was part of an Indian tribe or community or maintained a significant relationship with one. In Matter of Adoption of Crews, supra, 825 P.2d 305, a case involving facts very similar to those before us, the Supreme Court of Washington found ICWA inapplicable to an adoption proceeding where the biological parents had no substantial ties to a specific tribe, and neither the parents nor their families had resided or planned to reside within a tribal reservation, although the birth mother was formally enrolled as a tribal member. In such a situation, the court found the application of ICWA would not further the Act’s policies and purposes and would consequently not be proper. (825 P.2d at pp. 308-310; see also, Hampton v. J.A.L. (La.App., 2 Cir., 1995) 658 So.2d 331, 336, aff’d. by Supreme Court of Louisiana at 662 So.2d 478.)

[61] In California, at least two courts have recognized the existing family doctrine. In In re Wanomi P. (1989) 216 Cal.App.3d 156, the court found ICWA inapplicable by its express terms, because the tribe to which the child’s mother belonged was a Canadian tribe, not a federally recognized tribe, as required by section 1903, subdivision (8) of ICWA. (216 Cal.App.3d at p. 166.) However, the court also observed, in dictum, that regulating the unwarranted removal of children from Indian families by nontribal agencies was among the objectives of ICWA, and no evidence suggested the existence of an Indian family from which the minor was being removed. (Id. at p. 168.) Thus, the court noted that there would be no occasion for an application of ICWA. (Ibid.) In In re Baby Girl A. (1991) 230 Cal.App.3d 1611, the majority found the baby’s tribe had a right to intervene in adoption proceedings. However, the right of intervention existed under state law, independently of ICWA. (230 Cal.App.3d at pp. 1618-1619.) The court found that, upon remand of the action, the preferences for the placement of Indian children in Indian families or settings, which are provided in section 1915 of ICWA, need not be followed if the trial court found the child had no actual Indian family ties. (230 Cal.App.3d at pp. 1620-1621.)

[62] Two other California courts, however, have refused to apply the existing Indian family doctrine, or at least that version of the doctrine which holds that ICWA applies only if the child himself (or herself) has lived in an Indian family or community. In Adoption of Lindsay C., supra, 229 Cal.App.3d 404, the court characterized the doctrine as follows: “Generally speaking, [the doctrine] hold[s] the Act inapplicable in adoption proceedings involving an illegitimate Indian child who has never been a member of an Indian home or Indian culture, and who is being given up by his or her non-Indian mother.” (229 Cal.App.3d at p. 410.) The Lindsay C. court rejected the doctrine as so characterized. (Id. at pp. 415-416.) The trial court had found the tribe of the child’s unwed father had no right to notice of a pending step-parent adoption affecting the child, because he was the illegitimate child of a non-Indian mother, had always resided with the non-Indian mother, and had never been in the care or custody of the natural father, nor had any connection with Indian culture. Thus, without ever considering whether the natural father had significant ties with an Indian community, which he might one day share with the child if their family ties were not severed, the trial court concluded that no issue of the preservation of an Indian family was involved, as the child had never been a part of an Indian family. (Id. at p. 415.) The Court of Appeal rejected this reasoning and reversed. (Id. at pp. 415-416.)

…[66] Holyfield establishes, by clear implication, that an application of ICWA will not be defeated by the mere fact that an Indian child has not himself (or herself) been part of an Indian family or community. However, it does not follow from Holyfield that ICWA should apply when neither the child nor either natural parent has ever resided or been domiciled on a reservation or maintained any significant social, cultural or political relationship with an Indian tribe. *fn11 To the contrary, in our view, there are significant constitutional impediments to applying ICWA, rather than state law, in proceedings affecting the family relationships of persons who are not residents or domiciliaries of an Indian reservation, are not socially or culturally connected with an Indian community, and, in all respects except genetic heritage, are indistinguishable from other residents of the state. These impediments arise from the due process and equal protection guarantees of the Fifth and Fourteenth Amendments and from the Tenth Amendment’s reservation to the states of all powers not delegated to the federal government. We must, of course, construe the statute to uphold its constitutionality. (Edward J. DeBartolo Corp. v. Florida Gulf Coast Bldg. & Const. Trades Council (1983) 485 U.S. 568, 575 [99 L.Ed.2d 645, 108 S.Ct. 1392]; Adoption of Kelsey S. (1992) 1 Cal.4th 816, 826.) [67] 3.

 

Mark D. Fiddler, Esq., Executive Director, Indian Child Welfare Law Center, Minneapolis, Minn.:

“The ICWA gives her an absolute right to revoke her consent and have the baby returned to her, yet the adoption agency and the adopting couple (a well to do white couple) are saying that the ICWA does not apply because the family is not “reservation connected,” i.e., real Indians live on reservations and the ICWA does not apply unless you’re a real Indian family. The mother is an enrolled member of the Minnesota Chippewa Tribe, and the child is eligible for membership making the ICWA clearly applicable. This legal doctrine, called the “existing Indian family” doctrine, will be tested in Georgia in this case. This doctrine is the most effective means of attacking Indian families and tribes ever dreamed up by adoption attorneys. There is a national campaign of adoption attorneys to push this phony doctrine. It has been adopted in at least four states so far. It must be stopped.”

 


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Jun 102013
 

THE SUPERIOR COURT OF LOS ANGELES COUNTY

In re Bridget R., et al., Minors, (1996) 41 Cal.App.4th 1483 (Bridget R.).

James R. and Colette R. v. Cindy R.et al.,

January 19, 1996 ,

LLR No. 9601041.CA, Cite as: LLR 1996.CA.41 – “The Pomo Twins”


Contains: Constitutional Limitations upon the Scope of ICWA; Existing Family Doctrine

[1] Filed 1/18/96 Parent and Child, [2]CERTIFIED FOR PUBLICATION

[3] IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

[4] SECOND APPELLATE DISTRICT, [5] DIVISION THREE

[6] In re BRIDGET R., et al., Minors. [7] JAMES R. AND COLETTE R. et al., [8] Petitioners and Appellants, v. [9] CINDY R. et al.,[10] Objectors and Respondents.

[11] DRY CREEK RANCHERIA, et al..,[12] Intervenors and Respondents.

[13] In re BRIDGET R., et al., MINORS. [14] JAMES R. et al.,[15] Petitioners,v. [16] THE SUPERIOR COURT OF LOS ANGELES COUNTY,[17] Respondent;[18] CINDY R., et al., [19] Real Parties in Interest.

[20] B093520 (Super.Ct.No. BN1980 consol. w/BC114849) [21] B093694 [22] APPEAL from an order of the Superior Court of Los Angeles County.

[23] John Henning, Judge. Reversed and remanded with directions.

Counsel

[24] John L. Dodd and Jane A. Gorman for Petitioners and Appellants, the adoptive parents [identified in the opinion as the “R’s”]; Michael F. Kanne for Petitioner and Appellant Vista Del Mar Child and Family Services.

[25] James E. Cohen for Intervenor and Respondent, for Dry Creek Rancheria.

[26] Mitchell L. Beckloff for Respondent Minors, Janette Freeman Cochran, Robert S. Gerstein, for Biological Parents, Farella, Braun & Martel, Norma G. Formanek, Jennifer Schwartz, Joan Heifetz Hollinger, Mark C. Tilden, Alexander & Karshmer, Barbara Karshmer, Sant’Angelo & Trope, Jack F. Trope, Robert J. Miller, Patricia D. Hinrichs, Dunaway & Cross, Michael P. Bentzen, Cary W. Mergele, Wylie, McBride, Jesinger, Sure & Platten, Christopher E. Platten, Marc Gradstein, Mark D. Fiddler, Todd D. Steenson and Randall B. Hicks as Amici Curiae.

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[27] California recognizes the principle that children are not merely chattels belonging to their parents, but rather have fundamental interests of their own. (In re Jasmon O. (1994) 8 Cal.4th 398, 419.) Such fundamental interests are of constitutional dimension. This principle is central to our resolution of the multiple and complex issues presented by this case.

[28] We reverse an order of the trial court made pursuant to sections 1913 and 1914 of the Indian Child Welfare Act of 1978 (25 U.S.C.A. 1901 et seq.; hereafter “ICWA” or “the Act”). The court’s order invalidated a voluntary relinquishment of parental rights respecting Bridget and Lucy R., twin two-year-old girls, and ordered the twins removed from their adoptive family, with whom they have lived since birth, and returned to the extended family of the biological father. The adoptive parents (hereafter the “R’s” or “adoptive parents”) appealed, *fn1 joined by the licensed adoption agency through which the twins were placed. *fn2

[29] The twins are of American Indian descent, and the within dispute over their prospective adoption and custody raises issues concerning the scope of ICWA. Specifically, it raises the question of whether the Act should be limited in its application, as some courts have limited it, to children who not only are of Indian descent, but also belong to an existing Indian family.” (See, e.g., In re Adoption of Crews (1992) 118 Wash.2d 561 [825 P.2d 305]; Matter of Adoption of Baby Boy L. (1982) 231 Kan. 199 [643 P.2d 168].) We conclude that question must be answered in the affirmative.

[30] ICWA was enacted by Congress to protect the best interests of Indian children and promote the stability of Indian tribes and families. (25 U.S.C.A. Section(s) 1902; Mississippi Band of Choctaw Indians v. Holyfield (1989) 490 U.S. 30, 32-37 [104 L.Ed. 2d 29, 109 S.Ct. 1597];

[31] Here, the twins’ biological parents, Richard A. (“Richard”) and Cindy R. (“Cindy”), initially relinquished the twins to appellant Vista Del Mar Child and Family Services (“Vista Del Mar”) pursuant to section 8700 of California’s Family Code for adoption by the R’s, a non-Indian couple. However, Richard and Cindy later purported to withdraw their consent. With the assistance of the Dry Creek Rancheria of Pomo Indians, the federally recognized Indian tribe from which Richard is descended (hereafter, the “Tribe”), they initiated proceedings under ICWA to invalidate their relinquishments of parental rights. It is undisputed that the relinquishments were not executed in the manner required by ICWA. It is also undisputed that Richard and the twins are now recognized by the Tribe as tribal members. However, the record raises substantial doubt as to whether Richard, who, at all relevant times, resided several hundred miles from the tribal reservation, ever participated in tribal life or maintained any significant social, cultural or political relationship with the Tribe.

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[32] Although urged by Vista Del Mar and the R’s to apply the “existing Indian family doctrine” in this case, and uphold the relinquishments of parental rights unless the biological parents established that they were such a family, the trial court declined to apply that doctrine or hold any hearing with respect thereto. The court simply declared the relinquishments invalid as violative of ICWA and ordered the twins placed in the custody of their paternal grandparents, who were appointed temporary guardians. The trial court also dismissed a petition by the adoptive parents to terminate the biological parent’s parental rights on the ground of abandonment. (Fam. Code, Section(s) 7822.) The court found ICWA precluded it from proceeding on that petition.

[33] As we explain, recognition of the existing Indian family doctrine is necessary in a case such as this in order to preserve ICWA’s constitutionality. We hold that under the Fifth, Tenth and Fourteenth Amendments to the United States Constitution, ICWA does not and cannot apply to invalidate a voluntary termination of parental rights respecting an Indian child who is not domiciled on a reservation, unless the child’s biological parent, or parents, are not only of American Indian descent, but also maintain a significant social, cultural or political relationship with their tribe. Because the factual issues raised by such a rule have not been resolved, we reverse the trial court’s order and remand the case for a determination of whether the twins’ biological parents had such a relationship at the time that they voluntarily acted to relinquish their parental rights under California law. In the event that the trial court, after consideration of all the evidence, determines that such a relationship did not exist, then those relinquishments will be valid and binding and ICWA will not bar any pending adoption proceedings. On the other hand, if the trial court finds that the biological parents did have a significant social, cultural or political relationship with the Tribe, and therefore the provisions of ICWA can properly be applied, then a further guardianship hearing will be required to resolve the question of whether the twins should be removed from the custody of the R’s.

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[34] FACTUAL BACKGROUND *fn3

[35] Bridget and Lucy, twin girls, were born on November 9, 1993, in Los Angeles County, California, to Richard and Cindy. He is of American Indian descent, while she is descended from the Yaqui tribe of Mexico. *fn4 Richard is three-sixteenths Pomo and is currently an enrolled member of the Tribe.

[36] The Tribe, which occupies a reservation in Sonoma County, in northern California, has approximately 225 enrolled members, of whom approximately twenty-five live on the reservation. Since 1973, the Tribe has been governed by a set of Articles of Association, which, among other things, establish the qualifications of tribal membership. Under the Articles, such membership includes all persons who

(1) have completed an application for membership, and

(2) are named in a June 4, 1915 Bureau of Indian Affairs census of Indians “in, near and up Dry Creek from Healdsburg” and Indians “in and near Geyserville,” or are descendants of persons in those censuses, or are both California Indians and spouses of tribal members who hold valid assignments of land on the Rancheria. A person who is otherwise qualified to be a member is disqualified if he or she has been formally enrolled in another tribe, band or group, or has received an allotment of land by virtue of an affiliation with such other tribe, band or group. The Tribe’s Board of Directors is responsible for maintaining a current membership roll.

[37] Before the adoption of the Articles of Association in 1973, the Tribe was governed solely by custom and tradition, under which any lineal descendant of a historic tribal member was automatically a member of the Tribe and was recognized as such from birth. Marcellena Becerra, the tribal administrator, testified in the proceedings below that, when the Articles of Association were adopted, it was determined that existing members would continue to be recognized as members without the need to enroll formally. Thus, although his name is not on the Bureau of Indian Affairs’ enrollment list for the Tribe, Richard, who was born in 1972, is recognized as a tribal member according to pre-1973 customs. He became an enrolled member of the Tribe March of 1994, after the present custody dispute began, when his mother, Karen A. (“Karen”), submitted a membership application on his behalf.

[38] In mid-1993, Richard and Cindy discovered that Cindy was pregnant. Richard was then 21 years old, and Cindy was 20. They then lived together with their two sons, Anthony, age two, and Richard Andrew, age one, in the city of Whittier in Los Angeles County, California. However, by August of 1993, Cindy and the children were living in a shelter. Richard and Cindy realized they would not be able care for the expected twins, and so determined to relinquish them for adoption. They consulted Durand Cook, an attorney specializing in adoption, for this purpose.

[39] Richard initially identified himself to Cook as one quarter American Indian. However, when told the adoptions would be delayed or prevented if Richard’s Indian ancestry were known, Richard filled in a revised form, omitting the information that he was Indian.

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[40] During the ninth month of Cindy’s pregnancy, she and Richard met with a social worker from Vista Del Mar. On November 11 and 12 respectively, after receiving counseling concerning the relinquishment and adoption process as required by regulations promulgated pursuant to Family Code section 8621 (Cal. Code Regs., tit. 22, Section(s) 35128 et seq.), Richard and Cindy signed documents relinquishing the twins to Vista Del Mar, with the intent that they would be adopted by the R’s *fn5 . The relinquishments were filed with the state Department of Social Services on November 23, 1993. *fn6 Although the relinquishment documents contained direct queries as to whether either biological parent was of Indian descent, Richard concealed his Indian ancestry and listed his “basic ethnic group” as “white.” A few days after the relinquishments were executed, the R’s returned with the twins to their home in Ohio, where they have lived as a family ever since. On May 4, 1994, the R’s filed a petition in Franklin County, Ohio to adopt Bridget and Lucy. That petition is presumably still pending. *fn7

[41] In December of 1993, Richard told his mother, Karen, about Cindy’s pregnancy, the birth of the twins and their adoption. In early February of 1994, Karen contacted attorney Cook. At approximately the same time, Karen contacted the Tribe. A representative of the Tribe contacted Cook in February or March of 1994. Cook informed the R’s of this communication. On March 4, 1994, Amy Martin, the Tribe’s Chairperson, wrote to the Los Angeles County Children’s Court, stating that the twins were potential members of the Tribe and requesting intervention in any proceedings concerning them. On approximately that same date, Karen submitted tribal enrollment applications for herself, Rchard, the twins, and Richard’s two other children. On March 9, 1994, Amy Martin wriote to Vista Del Mar, stating that the twins were of Indian descent, and Karen, their paternal grandmother, wished them placed within the extended Indian family.

[42] During these weeks and months, the relationship between Richard and Cindy was deteriorating. On April 27, 1994, Cindy obtained a restraining order, which required Richard to remain at least 100 yards from Cindy and their two sons, Anthony and Richard Andrew. In a declaration in support of her application for the restraining order, Cindy related that on numerous occasions during March, Richard hit and kicked Cindy and pushed her down, broke furniture, and abused the one-and two-year-old children by picking them up by the neck and shaking or dropping them, poking them in the face, or hitting them in the head. On at least one of these occasions, Richard was intoxicated. *fn8

[43] On April 22, 1994, Richard sent to Vista Del Mar a letter which stated that Richard wished to rescind his relinquishment of the twins and to have them raised within his extended family. This letter was drafted by Lorraine Laiwa, a member of the Tribe. Laiwa read the letter to Richard over the telephone. After he approved its contents, she mailed it to him for his signature. After signing the letter, Richard sent the original to Vista Del Mar and a copy to his mother. Richard later testified that his intent, when he signed the letter, was to place the twins with his sister.

[44] On June 20, 1994, Richard had a meeting with Elias Lefferman, Ph.D., Director of Community Services at Vista Del Mar, concerning the request to rescind his relinquishment of the twins. During this meeting, Richard acknowledged that he had previously concealed his Indian ancestry. He stated that his decision to rescind his relinquishment of parental rights was prompted by his mother, Karen, so that Richard’s sister could raise the twins. Vista Del Mar denied Richard’s request to withdraw the relinquishments, and the proceedings that are now before us for review followed. *fn9

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[45] CONTENTIONS

[46] On appeal and in their petition for writ of mandate, the adoptive parents contend that:

(1) the trial court erred in failing to recognize the “existing Indian family” doctrine and

(2) ICWA is unconstitutional, unless limited by the “existing Indian family” doctrine, in that it

(a) impedes the exercise of fundamental rights of adopted children and their adoptive families;

(b) creates an impermissible racial classification, and

(c) exceeds the enumerated powers of Congress and violates the Tenth Amendment.

[47] In the alternative, the adoptive parents argue that, even if ICWA is constitutional and is not limited by the “existing Indian family” doctrine, the trial court’s order must be reversed, because:

(1) Richard is not a presumed father,

(2) the Tribe is precluded from retroactively enrolling Richard and the twins as tribal members,

(3) the twins are only 3/32 Indian,

(4) the biological parents, having concealed Richard’s Indian heritage in order to facilitate the adoption, are estopped from invoking ICWA to prevent it and

(5) ICWA’s provisions do not defeat the requirement that a hearing must be held on the issue of whether a change of custody to the extended biological family is in the best interests of the children or will be a detriment to them.

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[48] DISCUSSION

[49] 1. Summary of Relevant Portions of ICWA.

[50] ICWA, enacted by Congress to prevent the further “wholesale separation of Indian children from their families” through state court proceedings, was prompted by studies conducted in the 1970’s which showed that Native American children were being removed from their homes, through both foster care and adoption, in disproportionate numbers. (Mississippi Band of Choctaw Indians v. Holyfield, supra, 490 U.S. at pp. 32-37.)

[51] The Act is broken down into two titles. In this case, we are concerned only with Title I (25 U.S.C. Section(s) 1901 – 1923) which provides for the allocation of jurisdiction over Indian child custody proceedings between Indian tribes and the States and establishes federal standards to protect Indian families. Title II of the Act (25 U.S.C. Section(s) 1931 – 1963) provides for grants to Indian tribes and organizations to operate child and family service programs.

[52] Sections 1901 and 1902 set forth the historical and policy bases of ICWA. The stated policies are to protect the best interests of Indian Children and protect the cultural heritage of Indian nations from destruction through the removal of children from Indian tribes. Section 1903 defines the Act’s operative terms.

An “Indian child” is defined as “any unmarried person who is under age eighteen and either

(a) is a member of an Indian tribe or

(b) is eligible for membership in an Indian tribe and is the biological child of a tribal member.” (25 U.S.C. Section(s) 1903, subd. (4).)

An “Indian tribe is “any Indian tribe, band, nation, or other organized group or community of Indians recognized as eligible for the services provided to Indians by the Secretary because of their status as Indians. . . .” (25 U.S.C.A. 1903, subd. (8).)

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[53] Section 1911,

subdivision (a), gives an Indian tribe “exclusive jurisdiction as to any State over any child custody proceeding involving an Indian child who resides on or is domiciled within” the tribal reservation. When an Indian child who is not domiciled on a reservation is the subject of child custody proceedings in a state court, section 1911,

subdivision (b), provides that, absent good cause, jurisdiction shall be transferred to the child’s tribe upon request by either parent or the tribe.

Subdivision (c) provides that an Indian child’s tribe may intervene in any state court custody proceeding affecting the child. Subdivision (d) requires all jurisdictions within the United States to give full faith and credit to the acts of an Indian tribe that are applicable to Indian child custody proceedings.

[54] Section 1912 provides standards for involuntary proceedings respecting the removal of Indian children from their homes. These include a requirement of clear and convincing evidence of a threat of serious harm before an Indian child may be placed in foster care or in the custody of a guardian (Section(s) 1912, subd. (e)), and a requirement of proof beyond a reasonable doubt, supported by the testimony of qualified experts, of a threat of serious harm before parental rights respecting an Indian child may be terminated (Section(s) 1913, subd. (f)).

[55] Section 1913 sets forth standards for voluntary foster care placements and voluntary terminations of parental rights.

Subsection (a) provides that Indian parents who relinquish their parental rights must execute the relinquishments in writing before a judge, who must certify that the proceedings were explained to the parents in a language they understand. Subsection (a) further provides that “Any consent given prior to, or within ten days after, birth of the Indian child shall not be valid.”

Subsection (b) provides that a parent or Indian custodian may withdraw consent to a foster care placement at any time, and upon such withdrawal, the child must be returned.

ubsection (c) provides that a parent or Indian custodian may withdraw consent to termination of parental rights at any time until entry of a final order of adoption or termination, and upon such withdrawal, the child must be returned.

Subsection (d) provides that a final court decree of adoption may be overturned at any time within two years of its entry if parental consent was obtained through fraud or duress.

[56] Section 1914 of ICWA allows any Indian child, parent or Indian custodian from whom a child was removed, and the Indian child’s tribe to petition a court of competent jurisdiction to invalidate a foster care placement or termination of parental rights upon a showing that such action violated any provision of sections 1911, 1912 or 1913.

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[57] 2. The “Existing Indian Family” Doctrine

[58] As noted above, ICWA applies to any child who is either: (1) a member of an Indian tribe, or (2) eligible to be a member, and the biological child of a member of a tribe. (Section(s) 1903, subd. (4).) However, some courts have declined to apply the Act where a child is not being removed from an existing Indian family, because, in such circumstances, ICWA’s underlying policies of preserving Indian culture and promoting the stability and security of Indian tribes and families are not furthered. (In re Adoption of Crews, supra, 825 P.2d 305; Matter of Adoption of Baby Boy L., supra, 643 P.2d 168.)

[59] The earliest case to articulate what later became known as the existing Indian family doctrine was Matter of Adoption of Baby Boy L., supra, 643 P.2d 168. In that case, the Kansas Supreme Court observed that the purpose of ICWA was to maintain family and tribal relationships existing in Indian homes and to set standards for removal of Indian children from an existing Indian environment. (643 P.2d at p. 175.) The court found that the child whose custody was at issue in that case had been relinquished by his non-Indian mother at birth and had never been in the custody of his Indian father. The child thus had never been part of an Indian family relationship. Preservation of an Indian family was therefore not involved in the case; consequently, ICWA did not apply. (643 P.2d at p. 175; see also Matter of Adoption of T.R.M. (Ind., 1988) 525 N.E.2d 298, 303; Claymore v. Serr (S.D., 1987) 405 N.W.2d 650, 654; In the Interest of S.A.M. (Mo., 1986) 703 S.W.2d 603, 609; Adoption of Baby Boy D. (Ok., 1985) 742 P.2d 1059, 1064, cert. den. by Harjo v. Duello (1988) 484 U.S. 1072 [98 L.Ed.2d 1005, 108 S.Ct. 1042].)

[60] While the above cases found ICWA inapplicable because the Indian child himself (or herself) had never lived in an Indian environment, other cases have focused upon the question of whether the child’s natural family was part of an Indian tribe or community or maintained a significant relationship with one. In Matter of Adoption of Crews, supra, 825 P.2d 305, a case involving facts very similar to those before us, the Supreme Court of Washington found ICWA inapplicable to an adoption proceeding where the biological parents had no substantial ties to a specific tribe, and neither the parents nor their families had resided or planned to reside within a tribal reservation, although the birth mother was formally enrolled as a tribal member. In such a situation, the court found the application of ICWA would not further the Act’s policies and purposes and would consequently not be proper. (825 P.2d at pp. 308-310; see also, Hampton v. J.A.L. (La.App., 2 Cir., 1995) 658 So.2d 331, 336, aff’d. by Supreme Court of Louisiana at 662 So.2d 478.)

[61] In California, at least two courts have recognized the existing family doctrine. In In re Wanomi P. (1989) 216 Cal.App.3d 156, the court found ICWA inapplicable by its express terms, because the tribe to which the child’s mother belonged was a Canadian tribe, not a federally recognized tribe, as required by section 1903, subdivision (8) of ICWA. (216 Cal.App.3d at p. 166.) However, the court also observed, in dictum, that regulating the unwarranted removal of children from Indian families by nontribal agencies was among the objectives of ICWA, and no evidence suggested the existence of an Indian family from which the minor was being removed. (Id. at p. 168.) Thus, the court noted that there would be no occasion for an application of ICWA. (Ibid.) In In re Baby Girl A. (1991) 230 Cal.App.3d 1611, the majority found the baby’s tribe had a right to intervene in adoption proceedings. However, the right of intervention existed under state law, independently of ICWA. (230 Cal.App.3d at pp. 1618-1619.) The court found that, upon remand of the action, the preferences for the placement of Indian children in Indian families or settings, which are provided in section 1915 of ICWA, need not be followed if the trial court found the child had no actual Indian family ties. (230 Cal.App.3d at pp. 1620-1621.)

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[62] Two other California courts, however, have refused to apply the existing Indian family doctrine, or at least that version of the doctrine which holds that ICWA applies only if the child himself (or herself) has lived in an Indian family or community. In Adoption of Lindsay C., supra, 229 Cal.App.3d 404, the court characterized the doctrine as follows: “Generally speaking, [the doctrine] hold[s] the Act inapplicable in adoption proceedings involving an illegitimate Indian child who has never been a member of an Indian home or Indian culture, and who is being given up by his or her non-Indian mother.” (229 Cal.App.3d at p. 410.) The Lindsay C. court rejected the doctrine as so characterized. (Id. at pp. 415-416.) The trial court had found the tribe of the child’s unwed father had no right to notice of a pending step-parent adoption affecting the child, because he was the illegitimate child of a non-Indian mother, had always resided with the non-Indian mother, and had never been in the care or custody of the natural father, nor had any connection with Indian culture. Thus, without ever considering whether the natural father had significant ties with an Indian community, which he might one day share with the child if their family ties were not severed, the trial court concluded that no issue of the preservation of an Indian family was involved, as the child had never been a part of an Indian family. (Id. at p. 415.) The Court of Appeal rejected this reasoning and reversed. (Id. at pp. 415-416.)

[63] Likewise in In re Junious M. (1983) 144 Cal.App.3d 786, in a proceeding under (former) Civil Code section 232, the child’s mother informed the court on the third day of trial that she was of Indian descent. (144 Cal.App.3d at pp. 788-789.) The court found the mother’s tribe had a right to notice of the proceedings and a right to intervene, even though the minor had never lived in an Indian environment. “The language of the Act contains no [existing Indian family] exception to its applicability, and we do not deem it appropriate to create one judicially.” (Id at p. 796, citing A.B.M. v. M.H. (Alaska 1982) [64] 651 P.2d 1170, 1173.)” *fn10

[64] 651 P.2d 1170, 1173.)” *fn10

[65] We agree that a rule which would preclude the application of ICWA to any Indian child who has not himself (or herself) lived in an Indian family does not comport with either the language or purpose of the Act. Moreover, the United States Supreme Court has implicitly rejected any such limitation on ICWA. In Mississippi Band of Choctaw Indians v. Holyfield, supra, 490 U.S. 30, the only case in which the federal high court has construed ICWA, application of the Act’s tribal jurisdiction provisions (25 U.S.C.A. Section(s) 1911, subd. (a)) was challenged by the adoptive parents of illegitimate twin babies whose parents were enrolled members of an Indian tribe and were residents of the tribal reservation. (490 U.S. at pp. 37-38.) The babies were born off of the reservation and immediately relinquished to a non-Indian family, who adopted them in the state Chancery court. The birth mother returned home to the reservation after giving birth. On a subsequent motion by the tribe to vacate the adoption on the ground that the tribal court had exclusive jurisdiction over matters affecting the children’s custody, the state court found the children had never resided, or even been physically present, on the reservation, and were thus not domiciled there. Consequently, the court found ICWA did not apply. (Ibid.) The Supreme Court reversed (Id. at p. 41), finding that

(1) a general federal rule of domicile must apply for purposes of determining jurisdiction under ICWA (Id. at pp. 43-45);

(2) under such rule, the children’s domicile at birth followed that of their natural mother, and she was domiciled on the reservation (Id. at pp. 47-49);

(3) therefore, the tribe had exclusive jurisdiction over custody proceedings affecting the children under section 1911, subdivision (a). (Id. at p. 53.)

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[66] Holyfield establishes, by clear implication, that an application of ICWA will not be defeated by the mere fact that an Indian child has not himself (or herself) been part of an Indian family or community. However, it does not follow from Holyfield that ICWA should apply when neither the child nor either natural parent has ever resided or been domiciled on a reservation or maintained any significant social, cultural or political relationship with an Indian tribe. *fn11 To the contrary, in our view, there are significant constitutional impediments to applying ICWA, rather than state law, in proceedings affecting the family relationships of persons who are not residents or domiciliaries of an Indian reservation, are not socially or culturally connected with an Indian community, and, in all respects except genetic heritage, are indistinguishable from other residents of the state. These impediments arise from the due process and equal protection guarantees of the Fifth and Fourteenth Amendments and from the Tenth Amendment’s reservation to the states of all powers not delegated to the federal government. We must, of course, construe the statute to uphold its constitutionality. (Edward J. DeBartolo Corp. v. Florida Gulf Coast Bldg. & Const. Trades Council (1983) 485 U.S. 568, 575 [99 L.Ed.2d 645, 108 S.Ct. 1392]; Adoption of Kelsey S. (1992) 1 Cal.4th 816, 826.)

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[67] 3.

Constitutional Limitations Upon the Scope of ICWA

[68] a. Due Process

The intent of Congress in enacting ICWA was to “protect the best interests of Indian children,” as well as “promote the stability and security of Indian tribes and families.” (25 U.S.C. Section(s) 1902.) These two elements of ICWA’s underlying policy are in harmony in the circumstance in which ICWA was primarily intended to apply — where nontribal public and private agencies act to remove Indian children from their homes and place them in non-Indian homes or institutions. (See 25 U.S.C. Section(s) 1901, subd. (4).) But in cases such as this one, where, owing to noncompliance with ICWA’s procedural requirements, ICWA’s remedial provisions are invoked to remove children from adoptive families to whom the children were voluntarily given by the biological parents, the harmony is bound to be strained. Indeed, in circumstances of this kind, the interests of the tribe and the biological family may be in direct conflict with the children’s strong needs, which we find to be constitutionally protected, to remain through their developing years in one stable and loving home.

[69] An individual’s many related interests in matters of family life are compelling and are ranked among the most basic of civil rights. (Quilloin v. Walcott (1978) 434 U.S. 246, 255 [54 L.Ed.2d 511, 98 S.Ct. 549]; In re Marilyn H. (1993) 5 Cal.4th 295, 306.) The United States Supreme Court has stated that “[t]he intangible fibers that connect parent and child have an infinite variety. They are woven throughout the fabric of our society, providing it with strength, beauty and flexibility. It is self-evident that they are sufficiently vital to merit constitutional protection in appropriate cases.” (Lehr v. Robertson (1983) 463 U.S. 248, 256 [77 L.Ed.2d 614, 103 S.Ct. 985].) The high court has explained that its decisions which accord federal constitutional protection to certain parental rights rest upon “the historic respect — indeed, sanctity would not be too strong a term — traditionally accorded to the relationships that develop within the unitary family.” (Michael H. v. Gerald D. (1989) 491 U.S. 110, 123 [105 L.Ed.2d 91, 109 S.Ct. 2333].)

[70] Family rights are afforded not only procedural but also substantive protection under the due process clause. (Meyer v. Nebraska, 262 U.S. 390, 399-401 [67 L.Ed.1042, 43 S.Ct. 625] [law against teaching foreign languages in elementary schools did not serve sufficiently compelling public purpose to justify infringement of due process rights of students to acquire knowledge and of parents to control their children’s education]; Stanley v. Illinois (1972) 405 U.S. 645, 649 [31 L.Ed.2d 561, 92 S.Ct. 1208] [“[A]s a matter of due process of law, Stanley was entitled to a hearing on his fitness as a parent before his children were taken from him. . . .”]; Santosky v. Kramer (1982) 455 U.S. 745, 753 [71 L.Ed.2d 599, 102 S.Ct. 1388] [“When the State moves to destroy weakened familial bonds, it must provide the parents with fundamentally fair procedures.”]; Moore v. East Cleveland (1977) 431 U.S. 494, 502 [52 L.Ed.2d 531, 97 S.Ct. 1932] [local ordinance which limited occupancy of a dwelling unit to members of a nuclear family violated Due Process Clause].) Substantive due process prohibits governmental interference with a person’s fundamental right to life, liberty or property by unreasonable or arbitrary legislation. (Moore v. East Cleveland, supra, 431 U.S. at pp. 501-502; In re David B. (1979) 91 Cal.App.3d 184, 192-193.) Legislation which interferes with the enjoyment of a fundamental right is unreasonable under the Due Process Clause and must be set aside or limited unless such legislation serves a compelling public purpose and is necessary to the accomplishment of that purpose. In other words, such legislation would be subject to a strict scrutiny standard of review. (Moore v. East Cleveland, supra, 431 U.S. at p. 499; Bates v. City of Little Rock (1960) 361 U.S. 516, 524 [4 L.Ed.2d 480, 80 S.Ct. 412]; Sherbert v. Verner (1963) 374 U.S. 398, 406 [10 L.Ed.2d 965, 83 S.Ct. 1790]; see also Poe v. Ullman (1961) 367 U.S. 497, 547 [6 L.Ed.2d 989, 81 S.Ct. 1752], dis. opn of Harlan, J.)

[71] When discussing constitutional protections of family relationships, the courts have focused more often upon the rights of parents than those of children. The United States Supreme Court has declared that the interests “of a man in the children he has sired and raised . . .undeniably warrants deference” (Stanley v. Illinois, supra, 405 U.S. at p. 651; italics added) and that parents’ interest in the “care, companionship, custody and management” of their children has “`a momentum for respect lacking when appeal is made to liberties which derive merely from shifting economic arrangements.’ [Citation.]” (Ibid., italics added; see also Santosky v. Kramer, supra, 455 U.S. at p. 753; Lassiter v. Department of Social Services (1981) 452 U.S. 18, 27 [68 L.Ed.2d 640, 101 S.Ct. 2153].) The California Supreme Court has likewise declared a parent’s interest in the care, custody and management of his or her children to be “a compelling one, ranked among the most basic of civil rights.” (In re Marilyn H., supra, 5 Cal.4th at p. 306; see also Adoption of Kelsey S., supra, 1 Cal.4th at pp. 830-848; In re Angelia P. (1981) 28 Cal.3d 908, 916.)

[72] However, the courts have described the constitutional principles which govern familial rights in language which strongly suggests the Constitution protects the familial interests of children just as it protects those of parents. The federal high Court has said that “the relationship between parent and child is constitutionally protected” (Quilloin v. Walcott, supra, 434 U.S. at p. 255; italics added) and also has “emphasized the paramount interest in the welfare of children and has noted that the rights of the parents are a counterpart of the responsibilities they have assumed.” (Lehr v. Robertson, supra, 463 U.S. at p. 257.) Our own Supreme Court has stated that the right of parents to the care, custody and management of their children, although fundamental, is not absolute, and has stated that “[c]hildren, too, have fundamental rights — including the fundamental right to be protected from neglect and to `have a placement that is stable [and] permanent.’ ” (In re Jasmon O., supra, 8 Cal.4th 398, 419, quoting In re Marilyn H., supra, 5 Cal.4th at p. 306.) “Children are not simply chattels belonging to the parent, but have fundamental interests of their own that may diverge from the interests of the parent.” (In re Jasmon O., supra, 8 Cal.4th at p. 419; italics added.)

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[73] Moreover, as a matter of simple common sense, the rights of children in their family relationships are at least as fundamental and compelling as those of their parents. If anything, children’s familial rights are more compelling than adults’, because children’s interests in family relationships comprise more than the emotional and social interests which adults have in family life; children’s interests also include the elementary and wholly practical needs of the small and helpless to be protected from harm and to have stable and permanent homes in which each child’s mind and character can grow, unhampered by uncertainty and fear of what the next day or week or court appearance may bring. (See generally, In re Jasmon O., supra, 8 Cal.4th at p. 419.)

[74] Cases which hold that deference is to be accorded to parental rights do so in part on the assumption that children’s needs generally are best met by helping parents achieve their interests. (Santosky v. Kramer, supra, 455 U.S. at pp. 759-761; Stanley v. Illinois, supra, 405 U.S. at p. 649; Cynthia D. v. Superior Court (1993) 5 Cal.4th 242,. 253-254; In re Angelia P., supra, 28 Cal.3d at pp. 916-917.) In some situations, however, children’s and parents’ rights conflict, and in these situations, the legal system traditionally protects the child. (Cynthia D. v. Superior Court,, supra, 5 Cal.4th at p. 254; In re Angelia P., supra, 28 Cal.3d at p. 917.)

75] Circumstances in which a parent’s and child’s interest diverge, and the child’s interests are found more compelling, include circumstances where a child has been in out-of-home placement under the jurisdiction of a dependency court for 18 months, and the parent has failed to correct the problems which caused the child to be removed from the home. (In re Jasmon O., supra, 8 Cal.4th at pp. 419-422; Cynthia D. v. Superior Court, supra, 5 Cal.4th at pp. 254-256.) In cases of this kind, the California Supreme court has ruled that a substantial likelihood that the child will suffer serious trauma if separated from the foster family can establish sufficient detriment to overcome the parents’ right to the care, custody and companionship of the child. (In re Jasmon O., supra, 8 Cal.4th at pp. 418-419.) A child’s right to remain in a stable home is also found both to be adverse to and to outweigh a parent’s interests where a natural father failed to show a commitment to the child within a reasonable time of learning of the mother’s pregnancy, but later seeks to assert parental rights and disturb an adoptive placement or step parent family in which the child is secure and thriving. (Lehr v. Robertson, supra, 463 U.S. at pp. 261-262; Quilloin v. Walcott, supra, 434 U.S. at p. 255; Adoption of Michael H., supra, 10 Cal.4th at pp. 1054-1058.) In such cases, the United States Supreme Court has ruled that the parental rights of the natural father are superseded by policies favoring preservation of the child’s existing family unit. (Quilloin v. Walcott, supra, 434 U.S. at p. 255.)

76] Both the California Supreme Court and the United States Supreme Court have also recognized that a person’s interests and rights respecting family relationships do not necessarily depend upon the existence of a biological relationship. (Lehr v. Robertson, supra, 463 U.S. at p. 261; Adoption of Michael H.,(1995) 10 Cal.4th 1043, 1057-1058.) The United States Supreme Court has stated that “[n]o one would seriously dispute” that familial interests and rights may attach to the emotional ties which grow between members of a de facto family. (Smith v. Organization of Foster Families (1977) 431 U.S. 816, 844 [53 L.Ed.2d 14, 97 S.Ct. 2094].) Both high courts have recognized that such interests and rights may outweigh biological relationships under some circumstances. (Lehr v. Robertson, supra, 463 U.S. at p. 261; Quoilloin v. Walcott, supra, 434 U.S. at p. 255; Smith v. Organization of Foster Families, supra, 431 U.S. at pp. 843-844; Adoption of Michael H., supra, 10 Cal.4th at pp. 1057-1058.) *fn12

[77] Here, the biological parents have come before the court after having voluntarily relinquished their twin girls for adoption. The biological parents claim they are entitled to reestablish their relationship with the children, because their relinquishments of parental rights were not executed in accordance with ICWA. However, any claim which they may have under the statute does not necessarily establish a claim to that deference which parental rights are generally accorded under the Constitution. A biological parent’s constitutional rights, like other constitutional rights, may be waived, provided only that the waiver is knowingly and intelligently made (D.H. Overmyer Co., Inc. v. Frick Co. (1972) 405 U.S. 174, 185-186 [31 L.Ed.2d 124, 92 S.Ct. 775]; Tyler v. Children’s Home Society (1994) 29 Cal.App.4th 511, 545), and the counselling which is required by California law before a parent may relinquish a child for adoption has been held to be sufficient to assure that any waiver of parental rights is knowing and intelligent. (Tyler v. Children’s Home Society, supra, 29 Cal.App.3d at pp. 546-547.)

[78] Given the failure to comply with procedural requirements of ICWA, we cannot conclude that there has been a waiver of parental rights in this case. However, as we have observed, prior judicial decisions establish that, where a child has formed familial bonds with a de facto family with whom the child was placed owing to a biological parents’ unfitness (In re Jasmon O., supra, 8 Cal.4th at p. 418) or initial failure to establish a parent-child relationship (Lehr v. Roberston, supra, 463 U.S. at p. 261; Adoption of Michael H., supra, 10 Cal.4th at p. 1057), and where it is shown that the child would be harmed by any severance of those bonds, the child’s constitutionally protected interests outweigh those of the biological parents. (Lehr v. Robertson, supra, 463 U.S. at pp. 261-262; Adoption of Michael H., supra, 10 Cal.4th at pp. 1057-1058; In re Jasmon O., supra, 8 Cal.4th at pp. 418-419.) The rule can logically be no different where children have become bonded to a family in which they were placed after a knowing, intelligent and express relinquishment of parental rights. Inasmuch as children have a liberty interest in the continuity and stability of their homes (In re Jasmon O., supra, 8 Cal.4th at p. 419; In re Marilyn H., supra, 5 Cal.4th at p. 306), where a child’s biological parents knowingly and intelligently relinquish the child to others for the express purpose of giving the child a loving and stable home, the biological parents’ voluntary act constitutes at the very least a voluntary subordination of their constitutional rights to those of the children. The biological parents thus must rely solely upon ICWA for any claim which they might have in this matter.

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[79] The interests of the Tribe in this dispute are likewise based solely upon ICWA. There neither is nor can be any claim that the Tribe’s interests are constitutionally protected. The R’s, as the prospective adoptive parents, similarly have no interests which have been found to enjoy constitutional protection. (Smith v. Organization of Foster Families, supra, 431 U.S. at pp. 838-847.)

[80] However, the twins do have a presently existing fundamental and constitutionally protected interest in their relationship with the only family they have ever known. The children are thus the only parties before the court which have such interests. Therefore, if application of ICWA would interfere with those interests, such application must be subjected to a strict scrutiny standard to determine whether it serves a compelling government purpose and whether it is actually necessary and effective to the accomplishment of that purpose. If not, then ICWA, as so applied, would deprive the children of due process of law. (Moore v. East Cleveland, supra, 431 U.S. at p. 499; Bates v. City of Little Rock, supra, 361 U.S. at p. 524; Sherbert v. Verner, supra, 374 U.S. at p. 406.)

[81] The questions which we therefore must determine are

(1) whether the tribal interests which ICWA protects are sufficiently compelling under substantive due process standards to justify the impact which ICWA’s requirements will have on the twins’ constitutionally protected familial rights, and, if so,

(2) whether application of ICWA, under facts of the kind presented in this case, is necessary to further that interest.

[82] We have no quarrel with the proposition that preserving American Indian culture is a legitimate, even compelling, governmental interest. At the same time, however, we agree with those courts which have held that this purpose will not be served by applying the provisions of ICWA which are at issue in this case to children whose biological parents do not have a significant social, cultural or political relationship with an Indian community. It is almost too obvious to require articulation, that “the unique values of Indian culture” (25 U.S.C. Section(s) 1902) will not be preserved in the homes of parents who have become fully assimilated into non-Indian culture. This being so, it is questionable whether a rational basis, far less a compelling need, exists for applying the requirements of the Act where fully assimilated Indian parents seek to voluntarily relinquish children for adoption. The case for applying ICWA is even weaker where assimilated parents have previously concluded a reasoned and voluntary relinquishment of a child, which was valid and has become final under state law, and the child has become part of an adoptive or prospective adoptive family. In this circumstance, the invalidation of the relinquishment manifestly can serve no purpose which is sufficiently compelling to overcome the child’s fundamental right to remain in the home where he or she is loved and well cared-for, with people to whom the child is daily becoming more attached by bonds of affection and among whom the child feels secure to learn and grow. ICWA cannot constitutionally be applied under such facts.

[83] b. Equal Protection

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[84] ICWA requires Indian children who cannot be cared for by their natural parents to be treated differently from non-Indian children in the same situation. As a result of this disparate treatment, the number and variety of adoptive homes that are potentially available to an Indian child are more limited than those available to non-Indian children, and an Indian child who has been placed in an adoptive or potential adoptive home has a greater risk than do non-Indian children of being taken from that home and placed with strangers. To the extent this disparate and sometimes disadvantageous treatment is based upon social, cultural or political relationships between Indian children and their tribes, it does not violate the equal protection requirements of the Fifth and Fourteenth Amendments. (United States v. Antelope (1977) 430 U.S. 641, 646 [51 L.Ed.2d 701, 97 S.Ct. 1395]; Moe v. Salish Kootenai Tribes (1976) 425 U.S. 463, 480-481 [48 L.Ed.2d 96, 96 S.Ct. 1634]; Morton v. Mancari (1974) 417 U.S. 535, 554 [41 L.Ed.2d 290, 94 S.Ct. 2474].) However, where such social, cultural or political relationships do not exist or are very attenuated, the only remaining basis for applying ICWA rather than state law in proceedings affecting an Indian child’s custody is the child’s genetic heritage — in other words, race.

[85] Equal protection principles regard racial classifications of all kinds as “inherently suspect” (Regents of the Univ. of California v. Bakke (1978) 438 U.S. 265, 289-290 [57 L.Ed.2d 750, 98 S.Ct. 2733] (lead opn. of Powell, J.)), indeed, “odious to a free people.” (Hirabayashi v. United States (1943) 320 U.S. 81, 100 [87 L.Ed. 1774, 63 S.Ct. 1375].) The United States Supreme Court has recently held that “all racial classifications, imposed by whatever federal, state, or local governmental actor, must be analyzed by a reviewing court under strict scrutiny. In other words, such classifications are constitutional only if they are narrowly tailored measures that further compelling governmental interests.” (Adarand Constructors, Inc. v. Pena (1995) __ U.S. __ [132 L.Ed.2d 158, 182, 115 S.Ct. 2097] (hereafter “Adarand”; lead opn. of O’Connor, J.); see also Miller v. Johnson (1995) __U.S. __ [132 L.Ed.2d 762, 115 S.Ct. 2475, 2482].) The same principle applies whether the group targeted by a racial classification is burdened or benefited by the classification. (Adarand, supra, 132 L.Ed.2d at p. 179.) The foregoing principles apply to federal legislation affecting Indian affairs. (Delaware Tribal Business Commission v. Weeks (1974) 430 U.S. 73, 84 [51 L.Ed.2d 173, 97 S.Ct. 911].)

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[86] The Tribe and the biological parents argue that ICWA does not create a race-based classification, because application of ICWA is triggered by the child’s membership in a tribe or eligibility for membership, and depends upon the child’s genetic heritage only if the child is merely eligible for tribal membership, in which case the child must be the biological child of a tribal member. This argument is superficially appealing. However, the Tribe and the parents also argue that, under ICWA Guidelines, tribal determinations of their own membership should generally be deemed conclusive. If tribal determinations are indeed conclusive for purposes of applying ICWA, and if, as appears to be the case here, a particular tribe recognizes as members all persons who are biologically descended from historic tribal members, then children who are related by blood to such a tribe may be claimed by the tribe, and thus made subject to the provisions of ICWA, solely on the basis of their biological heritage. Only children who are racially Indians face this possibility. *fn13

[87] For purposes of determining whether a particular application of ICWA creates a racially based classification, it makes no difference that not all tribes recognize as tribal members all blood descendants of tribal members. (See, e.g., Santa Clara Pueblo v. Martinez (1978) 436 U.S. 49, 52-53 [56 L.Ed.2d 106, 98 S.Ct. 1670] [tribe denied tribal membership to the children of female tribal members who married outside the tribe, but not to the children of similarly situated male tribal members].) As we have observed above, to the extent that tribal membership within the meaning of ICWA is based upon social, cultural or political tribal affiliations, it meets the requirements of equal protection. However, any application of ICWA which is triggered by an Indian child’s genetic heritage, without substantial social, cultural or political affiliations between the child’s family and a tribal community, is an application based solely, or at least predominantly, upon race and is subject to strict scrutiny under the equal protection clause. So scrutinized, and for the same reasons set forth in our discussion of the due process issue, it is clear that ICWA’s purpose is not served by an application of the Act to children who are of Indian descent, but whose parents have no significant relationship with an Indian community. If ICWA is applied to such children, such application deprives them of equal protection of the law.

[88] c. The Indian Commerce Clause and the Tenth Amendment

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[89] Congress’s authority to enact ICWA arises from clause 3 of section 8 of article I of the Constitution, “The Congress shall have power . . . to regulate Commerce . . . with the Indian tribes.” (25 U.S.C.A. Section(s) 1901, subd. (1); In re Wanomi P., supra, 216 Cal.App.3d at pp. 162-163.) This clause grants Congress plenary power over Indian affairs. (United States v. Wheeler (1978) 435 U.S. 313, 318 [55 L.Ed.2d 303, 98 S.Ct. 1079]; Morton v. Mancari, supra, 417 U.S. at pp. 551-552; Worcester v. State of Georgia (1831) 31 U.S. (6 Pet. ) 515, 559 [8 L.Ed. 483].) Indian tribes are deemed to be semi-sovereign nations under the protection of the federal government. Tribes retain attributes of sovereignty over both their members and their territories; such sovereignty is dependent on, and subordinate to, only the Federal Government, not the states. (California v. Cabazon Band of Indians (1987) 480 U.S. 202, 207 [94 L.Ed.2d 244, 107 S.Ct. 1083]; Washington v. Confederated Tribes (1980) 447 U.S. 134, 153-154 [65 L.Ed.2d 10, 100 S.Ct. 2069].)

[90] The principles of tribal self-government, grounded in notions of inherent sovereignty and in congressional policies, seek an accommodation between the interests of the tribes and the federal government on the one hand, and those of the states, on the other. (Washington v. Confederated Tribes, supra, 447 U.S. at pp. 156-157.) Thus, the Supreme Court has held nonreservation Indians are generally subject to nondiscriminatory and generally applicable state laws “[a]bsent express federal law to the contrary.” (Mescalero Apache Tribe v. Jones (1973) 411 U.S. 145, 148-149 [36 L.Ed.2d 114, 93 S.Ct. 1267].) Even on Indian reservations, state laws generally may be applied insofar as they do not interfere with reservation self-government or essential internal tribal affairs, or impair a right reserved by federal law. (Id. at p. 148.)

[91] Jurisdiction over matters of family relations is traditionally reserved to the states. (Rose v. Rose (1987) 481 U.S. 619, 625 [95 L.Ed.2d 599, 107 S.Ct. 2029]; Lehman v. Lycoming County Children’s Services (1982) 458 U.S. 502, 511-512 [73 L.Ed.2d 928, 102 S.Ct. 3231]; In re Burris (1890) 136 U.S. 586, 593-594 [34 L.Ed. 500, 10 S.Ct. 850].) Thus, where it is contended that a federal law must override state law on a matter relating to family relations, it must be shown that application of the state law in question would do “`major damage’ to `clear and substantial federal interests.’ [Citations].” (Rose v. Rose, supra, 481 U.S. at p. 625.)

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[92] Under these principles, ICWA should apply rather than state laws respecting family relations only where such application actually serves the specific purposes for which ICWA was enacted, “to promote the stability and security of Indian tribes and families” (25 U.S.C. Section(s) 1902), or the broader purposes which are served by all authorized exercises of Congressional power under the Indian Commerce Clause, namely, the purposes of acting as a guardian to the Indian tribes, and in so doing, protecting Indian tribal self-government. (Morton v. Mancari, supra, 417 U.S. at pp. 553-554.)

[93] The recent case of United States v. Lopez ___ U.S. ___ [131 L.Ed.2d 626, 115 S.Ct. 1624] is instructive, although that case concerned the powers of Congress under the Interstate Commerce Clause, and the reach of the Indian Commerce Clause is not identical. In Lopez, the United States Supreme Court indicated that Congress’s power under the Interstate Commerce Clause to legislate in areas otherwise reserved to the states will be confined to matters which substantially affect interstate commerce. (115 S.Ct. at p. 1630.) The reasoning of Lopez logically applies with respect to the Indian Commerce Clause, indeed, to any enumerated power of Congress. Congress exceeds its authority when, acting under any of its enumerated powers, Congress legislates in matters generally within the jurisdiction of the states, in the absence of an adequate nexus to the enumerated power under which the legislation is enacted. (Cf. 115 S.Ct. at pp. 1631-1634.)

[94] No such nexus exists respecting application of ICWA to children whose families do not maintain significant relationships with an Indian tribe or community or with Indian culture. Once again, ICWA’s purpose simply is not furthered by an application of the Act to families who are of Indian descent, but who maintain no significant social, cultural or political relationships with Indian community life, and are in all respects indistinguishable from other residents of the state. Thus, if ICWA is applied to such children, that application impermissibly intrudes upon a power reserved to the states.

 

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[95] d. Conclusion

[96] We do not believe ICWA applies only to Indian children who are domiciled on reservations. Indeed, the Act’s express terms provide for application of most of its provisions to reservation-domiciled and nonreservation-domiciled Indians alike. (Section(s) 1911, subds. (b) and (c).) Only the provision for exclusive jurisdiction in the tribal court is restricted to reservation domicilaries. (Section(s) 1911, subd. (a).) However, if the Act applies to children whose families have no significant relationship with Indian tribal culture, such application runs afoul of the Constitution in three ways:

(1) it impermissibly intrudes upon a power ordinarily reserved to the states,

(2) it improperly interferes with Indian children’s fundamental due process rights respecting family relationships; and

(3) on the sole basis of race, it deprives them of equal opportunities to be adopted that are available to non-Indian children and exposes them, like the twin girls in this case, to having an existing non-Indian family torn apart through an after the fact assertion of tribal and Indian-parent rights under ICWA (which rights were, in this case, specifically and intentionally ignored by the biological parents now asserting them). All of this occurs in the absence of even a rational relationship to a permissible state purpose, much less a necessary connection with a compelling state purpose.

[97] We conclude that principles of substantive due process, equal protection and federalism all carry the same implication regarding the proper scope of ICWA — it can properly apply only where it is necessary and actually effective to accomplish its stated, and plainly compelling, purpose of preserving Indian culture through the preservation of Indian families. We agree with those courts which have held that ICWA’s purpose is not served by an application of the Act where the child may be of Indian descent, but where neither the child nor either parent maintains any significant social, cultural or political relationships with Indian life.

 

(See these Constitutional arguments also on our 14th Amendment page – CAICW)

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[98] 4. The Trial Court Must Determine The Question Of Whether There Was An “Existing Indian Family” Which Is The Factual Predicate To The Application Of ICWA

[99] The trial court in this case determined, as a matter of law, that the twins are Indian children, because they are enrolled members of the Tribe, are recognized by the Tribe as members and are the biological children of an enrolled and recognized tribal member. The trial court thus concluded that ICWA applies, and the biological parent’s relinquishment of the twins for adoption was invalid under section 1913 of the Act. However, more is required to justify an application of ICWA than a biological parents’ mere formal enrollment in a tribe, or a self-serving after-the-fact tribal recognition of such a parent’s membership. Such token attestations of cultural identity fall short of establishing the existence of those significant cultural traditions and affiliations which

[100]ICWA exists to preserve, and which are consequently necessary to invoke a constitutionally permissible application of the Act. *fn14

[101] Because the trial court was persuaded that enrollment in the Tribe and tribal recognition of the twins’ tribal membership were enough to trigger the application of ICWA, the court had no occasion to make a further factual determination as to whether the biological parents maintain significant social, cultural or political relationships with the Tribe. The case must therefore be remanded so that such factual determination can be made.

[102] The biological parents (and the Tribe), of course, will bear the burden of proof on this issue. It is they who seek to set aside the relinquishment of parental rights which were otherwise final and binding under California law. To do this they rely on the application of a federal statute. It is they who must prove that the necessary factual basis for the application of that statute is present. (Evid. Code, Section(s) 500.)

[103] Moreover, that determination must focus upon the biological parents’ social, cultural and political relationship with the Tribe, although any relationship between the Tribe and extended family members may well bear on the issue of the biological parents’ relationship. On this point, we agree with the Supreme Court of South Dakota, writing in Claymore v. Serr, supra, 405 N.W.2d 650, one of the early cases to apply the existing Indian family doctrine. The Claymore court observed that ICWA refers in some contexts to “Indian families” and in others, to “extended Indian families,” suggesting that when the former term is used, the nuclear family, “the fundamental social unit in civilized society,” is intended. (405 N.W.2d at pp. 653-654.)

[104] The biological parents and the Tribe contend it would be unfair to focus only upon the nuclear family when assessing an application of ICWA, because such focus would ignore tribal kinship systems, in which the extended family is a fundamental unit. The parents and Tribe argue that one of the primary reasons ICWA was enacted was to combat the adverse effects upon Indian communities of failures by state courts and agencies to appreciate the importance in tribal life of the extended family, as well as other customs and institutions affecting the welfare of Indian children. They thus argue, in effect, that to exclude the extended family from consideration when we determine whether there is an existing Indian family, and hence, whether ICWA applies, would be a mere analytical sleight of hand, by which ICWA’s requirements of giving due consideration to essential tribal relations would be unfairly sidestepped.

[105] After giving this argument long and careful consideration, we are compelled to disagree. First, it implicitly assumes the conclusion that the biological parents did have significant social, cultural or political connections to the Tribe. If they had no such connections, then there would be no real issue of an “extended Indian family” for the court to ignore. Secondly, and more significantly, it must not be forgotten that this case has arisen because the biological parents abjured their Indian heritage when, instead of turning to their extended family for succour and support in anticipation of the twins’ birth, they voluntarily, and for rational and understandable reasons, relinquished those children to strangers. Then, to prevent interference with those relinquishments by the Tribe, they denied their heritage in response to multiple direct inquiries. Having done these things, the biological parents may now justly be required to prove that they themselves have a significant relationship with an Indian community and may be precluded from using cultural ties which may be maintained by their blood relatives to bootstrap themselves into an application of ICWA.

[106] The determination whether the twins were removed from an existing Indian family must also be made as of the time of the relinquishments. There can be no justification or excuse for tearing children from a family to which they are bonded, based upon an ex post facto manufacture of a legal basis for applying ICWA. The R’s urge us to hold that contemporaneous enrollment in the tribal register is necessary to establish that a child’s biological parent is a member of an Indian tribe within the meaning of ICWA. While such a bright-line rule has much to recommend it, we can imagine circumstances in which it would work an injustice, and we decline to announce such a rule. Nevertheless, the circumstance that Richard’s mother Karen — not Richard himself — applied for tribal enrollment for herself, Richard and all his children after the present dispute arose is a circumstance which can be considered in determining whether Richard truly maintained a significant relationship with the Tribe at the time of the twins’ birth.

[107] In considering whether the biological parents maintained significant ties to the Tribe, the court should also consider whether the parents privately identified themselves as Indians and privately observed tribal customs and, among other things, whether, despite their distance from the reservation, they participated in tribal community affairs, voted in tribal elections, or otherwise took an interest in tribal politics, contributed to tribal or Indian charities, subscribed to tribal newsletters or other periodicals of special interest to Indians, participated in Indian religious, social, cultural or political events which are held in their own locality, or maintained social contacts with other members of the Tribe. In this regard, we find particularly significant the fact that in the months preceding the birth of the twins, the biological parents turned not to the Tribe or even to other family members, *fn15 but rather to California’s legal process for the purpose of securing the adoption of the twins by a loving family able to care for them. The biological parents did this voluntarily and for reasons which reflected that their primary concern was for the twins’ future welfare. Moreover, as already noted, in order to facilitate the adoption process the biological parents expressly and intentionally denied their Indian heritage. Such conduct permits a very strong inference to be drawn about the absence of a significant relationship with the Tribe.

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[108] 5.If the Trial Court Finds That ICWA Applies, Then a Further Hearing Must Be Held on Whether a Change of Custody Would Be Detrimental to the Twins.

[109] In anticipation of the possibility that the trial court might, upon remand, conclude that ICWA does apply, the R’s have filed, and there is now pending in the trial court, a petition for their appointment as guardians of the twins. *fn16 The biological parents and the Tribe dispute that such a procedure is appropriate. *fn17 The R’s respond that a hearing on their guardianship petition is required in order to protect the constitutional rights of the twins and, in any event, is not precluded by the provisions of ICWA. *fn18

[110] However, the biological parents and the Tribe contend that, if the trial court ultimately finds that ICWA applies, then

(1) the relinquishments of parental rights would be invalid,

(2) no basis for an involuntary termination of rights would exist and

(3) the twins would have to be returned to the biological parents, without further proceedings. In support of this contention, they cite ICWA sections 1913, subdivision (c), and 1920, as well as Family Code sections 8804 and 8815 and two California cases, In re Timothy W. (1990) 223 Cal.App.3d 437 and In re Cheryl E. (1984) 161 Cal.App.3d 587.

[111] The California authorities cited are inapposite. Family Code sections 8804 and 8815 are part of the statutory scheme governing independent adoptions and have no application outside of that scheme. *fn19 For the same reason, In re Timothy W., supra, has no application to this case. In Timothy W., the court held that under the Civil Code statutes which formerly governed independent adoptions, a parent who withdrew consent to an adoption within six months was entitled to have the child returned without the need for judicial findings on the child’s best interests. (223 Cal.App.3d at p. 441.) In re Cheryl E., supra, is also distinguishable. In that case, the Court of Appeal affirmed a trial court order granting the mother’s petition to rescind her relinquishment of parental rights on the ground of fraud and undue influence (161 Cal.App.3d at p. 594); the appellate court found there was no occasion in the rescission action for the child’s best interests to be considered, and noted that this issue would be addressed in a separate dependency proceeding, which was pending. (Id. at pp. 603-604.)

[112] The contention that ICWA, section 1913, subdivision (c), requires automatic return of the children to the biological parents has somewhat more force. That section provides that “[i]n 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.” (Italics added.) If ICWA applies in this case, then no valid decree or other document effecting a termination of parental rights has been entered, and the biological parents have long since withdrawn their consent. Thus, the Tribe argues, section 1913, subdivision (c), requires the immediate and unconditional return of the children to their biological family.

[113] We disagree. The reach of section 1913 is limited by the twins’ interest in having a stable and secure home which, as we have already concluded, is an interest of constitutional dimension. Inasmuch as an individual’s interests in matters of family life are “compelling and are ranked among the most basic of civil rights” (Quilloin v. Walcott, supra, 434 U.S. at p. 255), and inasmuch as children “are not simply chattels belonging to the parent,” but have fundamental, constitutionally protected interest of their own, including “the fundamental right to . . . have a placement that is stable [and] permanent” (In re Jasmon O., supra, 8 Cal.4th at p. 419), we believe it would constitute a violation of the Due Process Clause of the Fifth and Fourteenth Amendments to remove a child from a stable placement, based upon statutory violations which occurred in making the placement, without a hearing to determine whether the child would suffer harm if removed from that placement. (Stanley v. Illinois, supra, 405 U.S. at p. 649.) Such a constitutional mandate cannot be avoided by reliance on the statutory provisions of ICWA.

[114] However, even under ICWA a change of custody hearing can be justified. Most of its provisions which deal with the custody of children expressly provide that consideration must be given to the child’s interests before any order changing a child’s custody is made. For example, section 1916, subdivision (a), deals with the issue of return of custody in circumstances substantially like those presented here. *fn20 It speaks directly to what happens after “a final decree of adoption of an Indian child has been vacated.” We do not have that precise situation here; however, we do have something very close: the invalidation of a voluntary relinquishment of parental rights. In both situations, custody of the child would in all likelihood have been given over to the prospective adoptive parents prior to any determination of invalidity. If, because of the application of ICWA, a final adoption is invalidated, or, as in this case, made impossible, the problem is the same: what is to be done about custody? Section 1916, subdivision (a), contemplates and provides something very similar to the procedure which we will require here in the event that the trial court finds that ICWA applies to this case.

[115] Two other sections of ICWA also recognize the importance of the child’s interests and needs. Section 1915 provides preferences for the placement of Indian children, but authorizes a different placement if there is good cause and specifically requires that any special needs of the child be considered in making a placement. (Section(s) 1915, subds. (a) and (b).) Section 1915, subdivision (c) authorizes a child’s tribe to specify different preferences, but requires any placement so specified to be “the least restrictive setting appropriate to the particular needs of the child.” Section 1920, which prescribes the consequences of an improper removal of a child from the legal custodian, and which the Tribe and biological parents contend requires automatic return of the child, provides that such return need not be ordered if it would subject the child to substantial and immediate danger, or the threat thereof.

[116] In the context of these express provisions within ICWA for consideration of the child’s interests in making a custody order, it does no violence to the overall statutory scheme to imply such a provision where it is contended that a child’s custody must be changed pursuant to section 1913, subdivision (c), due to a violation of section 1913, subdivision (a). *fn21 This result is not inconsistent with the intent of Congress. The legislative history of ICWA reflects the following comment in the House Report of the Interior and Insular Affairs Committee of July 24, 1978: “[T]he committee notes that nothing in those subsections [referring to the subsections of section 1913] prevents an appropriate party or agency from instituting an involuntary proceeding, subject to section [1912], to prevent the return of the child, but does not wish to be understood as routinely inviting such actions.” (1978 U.S. Code Cong. & Admin. News, at p. 7546; italics added.) *fn22

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[117] Finally, there is significant case authority for such a custody hearing. The R’s and amicus curiae have cited authorities from Colorado, New Jersey and New Mexico, in which the courts recognize that, where an anticipated adoption cannot legally be effected, the child’s interests must nevertheless be considered before custody of the child is returned to the biological parent. (See Matter of Custody of C.C.R.S. (Colo. 1995) 892 P.2d 246, 257-258, cert. denied by C.R.S. v. T.A.M. (1995) ___ U.S. ___ [133 L.Ed.2d 69, 116 S.Ct. 118]; Matter of Adoption of J.J.B. (1995) 119 N.M. 638 [894 P.2d 994, 1008-1009] cert. denied by Bookert v. Roth (1995) ___ U.S. ___ [133 L.Ed.2d 110, 116 S.Ct. 168]; Sorentino v. Family Children’s Soc. of Elizabeth (1976) 72 N.J. 127 [367 A.2d 1168, 1170-1171].) The California Supreme Court has also suggested in dictum that where a parent, having the right to do so, vetoes an anticipated adoption, the question of whether custody of the child should be awarded to the parent is a matter for separate determination. (Adoption of Kelsey S., supra, 1 Cal.4th at p. 851 [“Even if petitioner has the right to withhold his consent (and chooses to prevent the adoption), there will remain the question of the child’s custody”].) The Alaska Supreme Court reached the same conclusion in a case involving ICWA. In A.B.M. v. M.H., supra, 651 P.2d 1170, cert. denied by Hunter v. Maxie (1983) 461 U.S. 914 [77 L.Ed.3d 283, 103 S.Ct. 1893] the adoption of an Indian child was vacated owing to certain statutory violations, and thereafter, the mother petitioned to have the child returned to her custody. (651 P.2d at pp. 1171-1172.) The Alaska Supreme Court held that a hearing on the issue of custody would be required, subject to the provisions of ICWA, section 1912, before a return to the mother could be ordered. (Id. at pp. 1175-1176.)

[118] We therefore hold that, if the trial court determines upon remand that

(1) ICWA applies in this case, and

(2) under ICWA, the voluntary termination of the parental rights of the biological parents is invalid, the court must nevertheless hold a hearing on the question of whether there should be a change of custody. That can best be accomplished in the context of the R’s petition to be appointed guardians of the twins.

[119] California’s guardianship law offers equitable and constitutionally permissible standards for resolving the question of the proper custody of the twins in the event their pending adoption by the R’s fails due to the application of ICWA. These standards look to something more than the twins’ “best interests,” but rather require an examination of whether a custody change will result in detriment to them. These standards are consistent with the statutory preferences for maintaining a child’s custodial ties with the biological parents, but do not require that result if the evidence shows that the child would be harmed if removed from the custody of those persons who have acted as de facto and psychological parents since birth and with whom the child has bonded. *fn23

[120] Such guardianship hearing must be held under the provisions of Probate Code, section 1514, Family Code, sections 3040 and 3041, and ICWA, section 1912, subdivision (e). The burden of proof will necessarily rest upon the R’s. (Evid. Code, Section(s) 500.) The twins shall not be returned to the custody of the biological parents and may instead remain with the R’s if, and only if, the R’s can establish, by clear and convincing evidence, including the testimony of qualified expert witnesses, that a change of custody to the biological parents would be detrimental to the twins, and a grant of custody to the R’s is necessary to serve the twins’ best interests. (Fam. Code, Section(s) 3040, 3041; 25 U.S.C. Section(s) 1912, subd. (e); In re B.G. (1974) 11 Cal.3d 679, 695; In re Phillip B. (1983) 139 Cal.App.3d 407, 421.) *fn24 In making this determination, the court should take into consideration the likelihood, or lack thereof, that the twins will suffer trauma if separated from the R’s. *fn25

[121] The court will not be precluded from granting the guardianship petition because of any alleged failure to provide remedial and rehabilitative services to the biological parents, as provided in ICWA section 1912, subdivision (d). ICWA requires such services “to prevent the breakup of the Indian family.” The only time at which the “breakup” of the twins’ biological family could have been “prevented” was before the voluntary relinquishments which were made in this case. At that time, as we have already noted, the biological parents were counseled as required by California law (Fam. Code, Section(s) 8621 and regulations adopted thereunder [Cal. Code Regs., tit. 22, Section(s) 35128 et seq]), concerning the relinquishment and adoption process, alternatives to adoption, resources for financial assistance, employment resources, child care resources, housing resources and health service resources which were available to them if they determined not to relinquish their children. Despite such counselling, the parents decided, for good and sufficient reasons, to relinquish the children for adoption. We believe these circumstances adequately establish that active efforts were made to prevent the breakup of the family as required by ICWA section 1912, subdivision (d), and that such efforts were unsuccessful.

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[122] CONCLUSION


[123] In this case we have concluded that ICWA cannot be constitutionally applied in the absence of evidence demonstrating that the biological parents had a significant social, cultural or political relationship with the Tribe. On the record before us, we find little or no support for the existence of such relationship. Indeed, the conduct of the biological parents in this matter with respect to the events and circumstances leading up to their relinquishment of the twins strongly suggests that no such relationship existed. However, we cannot conclude, as a matter of law, that the biological parents or the Tribe, upon remand, would not be able to produce additional evidence. Indeed, as a result of the trial court’s ruling, none of the parties had any opportunity to present evidence on this critical issue. Therefore, a hearing in the trial court will be required to determine if there is any factual support to establish that the twins were a part of an existing Indian family so as to justify the application of ICWA. On this question, the burden of proof will be on the biological parents and the Tribe. If the trial court concludes that they have not carried their burden, then judgment shall be entered in favor of the R’s and they will be free to proceed with the adoption proceedings now pending in Ohio. If the trial court finds otherwise, then it will be necessary to conduct a further hearing on the question of whether there should be a change of custody. The pending guardianship petition filed by the R’s would be a proper vehicle to resolve that question. *fn26 With respect to this issue, the R’s will have the burden of proof.

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[124] DISPOSITION

[125] The order to show cause is discharged. The petition for writ of mandate is granted. The order vacating the termination of the parental rights of Richard A. and Lucy R. over the minors Lucy and Bridget R. is reversed. The matter is remanded, and the trial court is

[126] ordered to conduct further proceedings consistent with the views expressed in this opinion. Costs on appeal are awarded to the R’s and Vista Del Mar.

[127] CERTIFIED FOR PUBLICATION

[128] CROSKEY, J.

[129] We concur:

[130] KLEIN, P.J.

[131] ALDRICH, J.

 

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***** BEGIN FOOTNOTE(S) HERE *****

[132] *fn1 A notice of appeal was filed by the R’s on June 14, 1995. On June 15, 1995, they filed a petition for writ of supersedeas or other appropriate stay of the trial court’s order for an immediate transfer of custody. On that same date, we issued a temporary stay.

[133] On June 21, 1995, the R’s filed their Petition for Writ of Mandate, in which they raised the same issues as are raised on appeal. By three separate orders, each entered July 5, 1995, we (1) set a hearing on the petition for writ of supersedeas for July 19, 1995; (2)

rdered proceedings on the petition for writ of mandate to be consolidated with the appeal and ordered the parties to appear before this court on October 18, 1995, to show cause why the writ of mandate should not be granted; and (3) ordered the appeal expedited and propounded questions to be addressed by the parties.

[134] On July 21, 1995, after the hearing of July 19 on the petition for writ of supersedeas, we granted the writ of supersedeas, staying all orders and judgments which are the subject of the appeal.

[135] *fn2 The twins are separately represented and also have filed a responsive brief, in which they support the position of the adoptive parents and the adoption agency. This represents a change of position from the twins’ position at trial. Indeed, the twins have been represented by three different attorneys over the course of these proceedings and have shifted sides in the controversy with each change of attorney. The attorney who originally was appointed to represent the twins filed pleadings on their behalf in which he argued that application of ICWA without holding a hearing on their best interests would deprive them of due process of law. When that attorney subsequently recalled that he had once been consulted by the adoption agency concerning this case, he was replaced by a second attorney, who took the opposite position. Counsel on appeal has returned to the position taken by the twins’ first attorney.

[136] *fn3 The facts we recite are taken from the record of testimony and other evidence presented to the trial court and are substantially undisputed.

[137] *fn4 At the time of oral argument, Cindy’s attorney represented to the court that there is a federally recognized community of Yaqui Indians located in the state of Arizona. However, Cindy does not claim membership in that community.

[138] *fn5 The record indicates that the R’s paid approximately $14,000 to Cook for the birth mother’s expenses, in addition to attorney’s fees.

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[139] *fn6 Since January 1, 1994, the California statutes governing agency adoptions are found in Chapter 2 (Section(s) 8700 et seq.) of Part 2 of Division 13, “Adoption,” of the Family Code. These statutes are substantially identical to statutes in the Civil Code, now repealed, which previously governed the same subject matter. Together with related statutes and regulations, they provide in pertinent part that:

(1) Either or both biological parents may relinquish a child to a licensed adoption agency or the Department of Social Services (Fam. Code, Section(s) 8700, subd. ((a));

(2) the relinquishment must be executed after the child is born and when the birth mother has been released from the hospital or declared competent by her attending physician to execute a valid relinquishment (22 Cal.Code Reg. Section(s) 35139)

(3) each relinquishing parent must also sign, in the presence of an agency representative and two additional adult witnesses, a “Statement of Understanding,” indicating the parent’s clear understanding of the effects of the relinquishment (22 Cal.Code Reg. Section(s) 35149; 35151(a)(2)(a));

(4) when executed in compliance with the above requirements, a relinquishment is final upon filing with the Department, and may be rescinded thereafter only by the mutual consent of the relinquishing parent or parents and the Department or licensed adoption agency (Fam. Code, Section(s) 8700, subd. (d));

(5) the biological parents may designate the prospective adoptive family, and, if the child is not placed with that family, may rescind the relinquishment within 30 days (Fam. Code, Section(s) 8700, subds. (e), (f) and (g));

(6) the filing of the relinquishment terminates all parental rights (Fam. Code, Section(s) 8700, subd. (h));

(7) a child who is relinquished should be placed with a relative, or, if a relative is not available, with a family of the same racial or ethnic background as the child, or, if no such family is available within 90 days of the relinquishment, after a diligent search, with any suitable family (Fam. Code, Section(s) 8708);

(8) the above preferences need not be applied if the birth parents request otherwise (Fam. Code, Section(s) 8709);

(9) a person who has been approved by the Department or a licensed adoption agency to adopt a child may file a petition for adoption in the county where the petitioner resides (Fam. Code, Section(s) 8704, 8714);

(10) if the prospective adoptive parents reside outside of California, they may file a petition for adoption in the state where they reside under the Interstate Compact on the Placement of Children (Fam. Code, Section(s) 7901).

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[140] It is undisputed that, but for the challenged application of ICWA, the biological parents’ relinquishments of parental rights were valid and final under the above statutes as of November 23, 1993, the date when the relinquishments were filed with the Department of Social Services in Sacramento.

[141] *fn7 The adoption of the twins in Ohio, after a relinquishment of parental rights in California, is authorized under the Interstate Compact on the Placement of Children (Fam. Code, Section(s) 7901.)

[142] *fn8 The restraining order is included in the record on appeal, although it was not admitted into evidence in the proceedings below. At the request of the R’s, we have taken judicial notice of the order and supporting documents. (Evid. Code, Section(s) 452.)

[143] *fn9 Such proceedings include:

(1) a petition to declare the twins free of parental custody and control under Family Code section 7822, filed by the R’s;

(2) a motion to intervene, filed by the Tribe;

(3) a complaint for declaratory relief, filed by Vista Del Mar; and

(4) a petition to determine parental rights of alleged natural father under Family Code section 7662, filed by Vista Del Mar.

[144] *fn10 The biological parents argue that an additional California case, In re Crystal K. (1990) 226 Cal.App.3d 655, also declines to apply the existing Indian family doctrine, but that characterization is not entirely accurate. In Crystal K, the court rejected the mother’s contention that her action to terminate the parental rights of her former husband fell under the exception provided under the express terms of ICWA for custody proceedings that are part of a state proceeding for the dissolution of a marriage. (226 Cal.App.3d at p. 663-664.) The closest Crystal K came to rejecting the existing Indian family doctrine was to say that “To the extent Wanomi P. narrowly construes “Indian home” and “removal,” we disagree with that court on the facts before us. . . .” (Id. at p. 665.) Crystal K. found that ICWA applied “even [under] Baby Boy L.’s [643 P.2d 168] characterization of the Act’s purposes. . . .” (Ibid.)

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[145] *fn11 We note in passing that Congress in 1987 failed to approve amendments to ICWA which were described in materials considered by the Senate Select Committee on Indian Affairs as having the effect of precluding application of the existing Indian family doctrine. (See Hearings before the Senate Select Com. on Indian Affairs, United States Senate, 100th Cong., 1st Sess. on Oversight Hearings on the Indian Child Welfare Act, Nov. 10, 1987, Appendix B, pp. 167-171.)

[146] *fn12 In Smith v. Organization of Foster Families, supra, 431 U.S. 816, the Supreme Court declined to find that the plaintiff foster parents had constitutionally protected interests in their relationships with the foster children. (431 U.S. at p. 847.) One determinative factor which prevented such a finding was the fact that a foster parent-foster child relationship is the product of a “knowingly assumed” contractual relationship between the state and the foster parent, in which the foster parent agrees to the essentially temporary nature of the arrangement. (Id. at pp. 845-846.) However, the high court acknowledged that similar relationships may carry constitutional protections in appropriate circumstances. (Id. at p. 844), and the court later cited language from Smith in the course of ruling that a natural parent’s rights do not always take precedence over those of the children and their de facto families. (Lehr v. Robertson, supra, 463 U.S. at p. 261.)

[147] *fn13 There may, of course, be instances in which an Indian tribe admits a non-Indian as a tribal member, and, in such cases, that member’s biological children may fall within ICWA’s definition of Indian children even if they have no Indian blood. However, a grant of tribal membership to a non-Indian would plainly be based upon some social, cultural or political bond which the non-Indian established with the tribe. The decision we must make is whether ICWA is constitutionally overbroad if applied to racially Indian children whose families have no social, cultural or political relationship with a tribal community.

[148] *fn14 This conclusion is consistent with the ICWA regulations and case authority. The “Guidelines for State Courts; Indian Child Custody Proceedings” (“ICWA Guidelines,”) 44 Federal Register, pages 67584 through 67595 (November 26, 1979) suggest that tribal determinations of their own membership are ordinarily deemed conclusive. However, tribal rights under the Guidelines also depend upon the existence of an actual political relationship with the tribe. (44 Federal Register at p. 67587.) Federal cases which generally consider the special rights which arise from a person’s status as an Indian have held that enrollment in, or recognition by, a tribe is not the sole factor in determining Indian status. (See, e.g., Morton v. Ruiz (1974) 415 U.S. 199, 295 [39 L.Ed.2d 270, 94 S.Ct. 1055] [evidence of close economic and social ties to tribe required invalidation of Bureau of Indian Affairs rule which denied federal benefits to Indian family who lived off of the tribal reservation]; United States v. Broncheau (9th Cir. 1979) 597 F.2d 1260, 1263, cert. denied by Broncheau v. U.S. (1979) [62 L.Ed. 80, 100 S.Ct. 123] [enrollment is the common evidentiary means of establishing Indian status for purposes of the Major Crimes Act, but is not the only means and is not necessarily determinative]; Ex parte Pero (7th Cir. 1938.) 99 F.2d 28, 29-31, cert. denied by Lee v. Pero (1939) 306 U.S. 643 [83 L.Ed. 1043, 59 S.Ct. 581][defendant was not an enrolled member of his tribe, but he was nevertheless an “Indian” for purposes of conferring federal criminal jurisdiction, where he lived on the tribal reservation, maintained tribal relations and was recognized as an Indian by the tribe].) Daniel Cohen’s authoritative Federal Handbook of Indian Law (Univ. of New Mexico Press, 1971) (“Federal Handbook”) also expresses the view that tribal membership is best treated “as a relative affair, existing in some cases for certain purposes and not for others.” (Cohen, Federal Handbook at p. 136.)

[149] *fn15 We cannot help but note that Richard’s mother, Karen, who appears from the record to be the prime mover in this matter was never made aware of the fact of Cindy’s pregnancy until nearly two months after the twins were born. This strongly suggests a family relationship which involved very little social contact. A pregnancy involving twin babies would be difficult to disguise. It would appear that this was a matter which Richard intentionally chose not to share with his mother.

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[150] *fn16 At the R’s request and without objection we have taken judicial notice of the pendency of that proceeding.

[151] *fn17 Following oral argument on this matter we invited the parties and amici to address by letter brief the issue of the proper procedure to be followed by the trial court in the event that, upon remand, it was determined that ICWA did apply to this case. We have received and considered such additional briefing.

[152] *fn18 The R’s also contend that they are entitled to a hearing on their claim that the twins were abandoned by their birth parents. While that may be technically true, the undisputed record strongly suggests that no abandonment can be proven.

[153] In order for the R’s to prove abandonment, it would be necessary for them to establish that the biological parents, with the intent to abandon the children, left them in the care of the R’s for a period of six months. (Fam. Code, Section(s) 7822.) Although Richard manifestly began attempting to have the twins returned to him within six months after their birth, the R’s contend he abandoned them within the meaning of the statute, because he did not intend to receive them into his own home, but intended that his sister would raise them. The R’s cite In re Brittany H. (1988) 198 Cal.App.3d 533 for the proposition that a biological parent who consents to an adoption, then attempts to reclaim the child within six months, will still be found to have abandoned the child if the parent’s intent in reclaiming the child was not to parent the child himself (or herself), but to place the child in another adoptive home. (See 198 Cal.App.3d at pp. 550-551.) While Brittany H. does so hold, it is distinguishable in one crucial respect from this case: The mother in Brittany H. attempted to reclaim the child from her adoptive home and place her in the home of other people whom the mother had come to prefer, but who were not biologically related to the child and had no other particular claim to the child. (Id. at p. 550.) Here, Richard sought to reclaim the twins and place them, not with strangers, but with his sister, a person entitled to preference in the placement of Indian children under ICWA. (25 U.S.C. Section(s) 1915.) It would subvert the clear purposes of ICWA if a finding of abandonment could be premised upon the desire of the biological parent of an Indian child to place the child with a member of his extended Indian family.

[154] *fn19 Section 8804 provides manner of determining the custody of a child who has been placed for adoption if the prospecitve adoptive family withdraws the petition for adoption, if a birth parent who did not place the child for adoption does not consent to the adoption, or if a birth parent who placed the child for adoption revokes consent pursuant to section 8814.5. In the latter two circumstances, the child must be returned to the birth parent. Likewise, section 8815 provides for the mandatory return of the child to a birth parent who revokes consent to an independent adoption before the revocable consent becomes permanent.

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[155] *fn20 Section 1916, subdivision (a), of ICWA provides:

[156] “Notwithstanding State law to the contrary, whenever a final decree of adoption of an Indian child has been vacated or set aside or the adoptive parents voluntarily consent to the termination of their parental rights to the child, a biological parent or prior Indian custodian may petition for return of custody and the court shall grant such petition unless there is a showing in a proceeding subject to the provisions of section 1912 of this title, that such return of custody is not in the best interests of the child.”

[157] *fn21 Where the biological parent of an Indian child has validly relinquished parental rights under section 1913, subdivision (a), and all parties to the proceedings understand and agree that the relinquishment may be rescinded for any reason at any time until the termination of parental rights is final, there is a logical reason to provide for automatic return of the child to the biological parent, although changes of custody in all other circumstances contemplated by ICWA are contingent upon findings respecting the child’s best interests and the likelihood of detriment to the child. Moreover, where the risk of removal of the child from a pre-adoptive placement is knowingly and voluntarily assumed by the prospective adoptive family, due process in all likelihood does not require a hearing on the child’s best interests before a removal can be ordered. (Cf. Smith v. Organization of Foster Families, supra, 431 U.S. 816 [“While the Court has recognized that liberty interests may in some cases arise from positive law sources [Citations], in such a case, and particularly where, as here, the claimed interest derives from a knowingly assumed contractual relation with the State, it is appropriate to ascertain from state law the expectations and entitlements of the parties. In this case, the limited recognition accorded to the foster family by the New York statutes and the contracts executed by the foster parents argue against any but the most limited constitutional `liberty’ interest”].) However, the circumstances are different where, as here, an adoption is stymied for reasons that were neither anticipated nor voluntarily agreed upon by the parties, and where the children’s custody status would have been permanently settled, but for the unanticipated obstruction. In such circumstances, the most reasonable course is to make a custody order only after weighing the relative rights and interests of the parties — most particularly those of the children.

[158] *fn22 It cannot be doubted that the R’s, with whom the twins have been living since birth in a wholesome and stable environment, are appropriate parties to pursue a guardianship proceeding regarding the issue of the twins’ furture custody. (See Fam. Code, Section(s) 3040, subd. (a) (2).)

[159] *fn23 We find ourselves entirely in agreement with the comments of counsel for amicus American Academy of Adoption Attorneys who expressed the view that “a custody hearing is required to determine the placement of a child whenever an adoption is dismissed or denied, whatever the applicable law. When a child’s interests and needs are affected detrimentally by a proposed remedy for a wrong inflicted upon a parent or de facto parent, the law must craft a solution that protects the child. Whether denominated an equitable or constitutional remedy, or a statutory solution, as, for example, the guardianship proceedings available under California [] law, it is essential that the Court not automatically `return’ children to individuals who are socially and psychologically strangers to them. This is not an argument for ignoring the rights and interests of any of the adult parties affected by a failed adoption. In cases like this one, a custody hearing will evaluate the affect on all parties, and especially the twins, of having been placed in what was reasonably understood to be a secure, permanent placement, a placement whose future may now depend on whether the twins will be classified retroactively as Indian children for the purposes of ICWA.”

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[160] *fn24 ICWA section 1912, subdivision (e), provides: “No foster care placement may be ordered in such proceeding in the absence of a determination, supported by clear and convincing evidence, including testimony of qualified expert witnesses, that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child.” (Italics added.)

[161] While this section refers to an order requiring “foster care,” that clearly would encompass a guardianship proceeding. Under ICWA section 1903, subdivision (1), “foster care placement” is defined to include the placement of an Indian child in the home of a guardian. In addition, section 1912, subdivision (e), by its terms, concerns the determination whether the “continued” custody of a child with his or her parent or Indian guardian will cause detriment to the child. However, the governing principles and the burden of proof must necessarily be the same where the child is not in such parent’s or guardian’s custody, and the issue is whether a resumption of custody by the parent or guardin will be detrimental. Thus, the “clear and convincing” standard of section 1912, subdivision (e), is the proper one to be applied here. As already noted, the same evidentiary standard is also imposed by California law. (Fam. Code, Section(s) 3041; In re B.G., supra, 11 Cal.3d at p. 695; In re Phillip B., supra, 139 Cal.App.3d at p. 421.)

[162] *fn25 The R’s argue that this court is authorized by Code of Civil Procedure section 909 to make the requisite determinations regarding the children’s best interests. Although the R’s correctly point out that we have such authority, the needed determinations will require the taking of substantial evidence beyond what is in the existing record, a task which is obviously best undertaken by the trial court.

[163] *fn26 In addition to the major issues on this appeal, the parties raise a number of minor contentions which may be dealt with parenthetically. Neither Richard’s rights nor the Tribe’s rights are affected by the circumstance, even if true, that Richard is not a presumed father. Regardless of state laws affecting the rights of unwed fathers, ICWA applies if a child is the biological child of a member of an Indian tribe. Nor are the rights of any party affected by the circumstance that the twins are only three thirty-seconds Indian. ICWA’s application depends upon tribal membership, including the maintenance of significant contacts with the tribal community. It is not affected by any quantum of Indian blood, although such fact may have evidentiary value on the issue of whether there was an existing Indian family.

[164] We need not address the issue of whether the Tribe should be precluded from invoking ICWA by retroactively enrolling Richard and the twins as tribal members, inasmuch as we have concluded that mere recognition by a tribe is, in any event, not sufficient to establish a significant tribal relationship for purposes of the application of[165]ICWA.

[166] Finally, where the biological parents concealed Richard’s Indian heritage in order to facilitate the twins’ adoption, equity might require that they be estopped from invoking ICWA to prevent it. However, such estoppel can have no practical effect upon the ultimate result in this case, because the Tribe has independent rights to object to the severance of its relationship to tribal children. In Holyfield, supra, 490 U.S. 30, the Supreme Court held that where a birth parent intentionally relinquished an Indian child for adoption, and never renounced or revoked the relinquishment, the Tribe retained its separate rights to have the relinquishment vacated over the birth parent’s express objection. (490 U.S. at pp. 49-53.) A fortiori, if ICWA properly applies in this case, the Tribe has the right under 25 U.S.C. section 1914 to separately petition for vacation of the termination of the parents’ rights, regardless of any estoppel which might operate against the parents, and the effect upon the twins’ custody status will be the same.

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