*1 5, 1992.] En March [No. 57975-0. Banc. Boy
In the Matter Adoption Infant Crews. Tammy Hope Services, Crews, et al, Petitioners, Lee v. Respondents. al,
et *2 Fjelstad, peti- Goodwin, Scott, R. Grutz & Daniel tioner Crews.
Mary petitioner Parks, for Choctaw Nation. McNerthney, by McGavick, Graves, Edward R. Beale & Engel, by Lindstrom; Dubuar, Albert G. Lirhus Lirhus & respondents. Benjamin, for and Andrew L. Hinz,
Michele ad guardian as litem. Richard M. Kilmer on behalf of Northwest Intertribal System, Court amicus curiae for petitioners. General,
Kenneth O. Ann Eikenberry, and Lee Attorney Miller, Counsel, Senior amicus curiae for petitioners. (Crews) dating Crews
Dolliver, Tammy began J. Charles Bertiaux in May and learned she was preg- nant 1988. At that August time, Crews was single, old and with years Weldon and Arlene living parents, Crews, Seattle, Washington, where she In con- grew up. sidering possible adoption baby, Crews contacted Services, Hope a private adoption agency, in September 1988.
During months, the following counseling Crews received Mary Struck, from Services After much Hope counselor. consideration, literature, including reading talking with mothers, other birth parents, Bertiaux's consulting *3 friends, clergyman, relatives, and various parents, Crews to for place baby elected her Crews and adoption. Bertiaux then selected Rick adoptive the and Sharon parents, Shaffer, met occasions, with them on several and made to assurances the Shaffers that were in they resolute their baby decision to the for place adoption.
In the preparation for Struck asked and adoption, Crews any ancestry. Bertiaux whether either them had Indian There is a in the record the dispute regarding content of conversations between Crews and Struck to infor- relating about baby's ancestry. mation Crews an that submitted affidavit Struck asked alleging if she had Indian blood. Crews she told any alleges her blood, that she did have Indian "but. . . didn't know Struck affidavit, much". In her Struck stated: how to heritage The issue of ethnic was discussed and it was clear [Mary Welfare Act not Struck] me Indian Child did not apply. [Crews] was a member of a tribe and fact could heritage. any not name Indian tribes that Crews stated affidavit alleging submitted an Bertiaux how much" Indian blood or any if she had "she was not sure " her mother's blood on [Indian if there is some 'even also a difference.'" Bertiaux to make side], enough it isn't 'mainly is stated, heritage "her father's that Crews alleges says N/A why paperwork and "that is all German'" There for her father's side." side and German the mother's to conveyed Bertiaux had or that Crews or allegation is no or affiliation membership as to their information any Struck tribe. any specific with volun- Washington according adoption proceeded 1, 1989, May law and on
tary relinquishment due, Crews baby was 2 weeks before approximately and Waiver of Termination/Adoption a "Consent To signed This form Proceedings". pro- of All lb Receive Notice Right (ICWA) (25 Act of 1978 the Indian Child Welfare vides the proceedings. applicable 1901 et was seq.) U.S.C. § until not be effective also states the consent would The form than 48 could occur no earlier the court which approved by bom, the form or the was signed baby hours after Crews Once the consent was approved whichever was later. fraud, could not be revoked court, except the consent mental competency. duress or lack of 22, 1989. On May at 1:15 on p.m. B. was bom Baby boy Ter- Relinquishment, "Order Approving May Tem- Granting Relationship Parent-Child minating and the filed, discharged, Crews was Custody" porary Shaffers took B. home. the return
Thereafter, contacted Struck requesting Crews this conversa- There is a as to whether dispute of her baby. the request, 26 or 30. May May Despite tion took place Crews continued with the Shaffers. B. remained and in late June reinstate her rights, attempt *4 Health of Social and 1989, the Department she contacted (DSHS). Bureau of letter to the also sent a Crews Services of her an outline in Portland to obtain Indian Affairs informed 28, 1989, DSHS July On ancestry. Indian family's B. was of Indian a claim" that she have "may Crews that adop- that DSHS advised at 70. Papers, descent. Clerk's Nations of North Cherokee finalized until tion not be and Umatilla the Choctaw and Oklahoma Carolina Services by Hope contacted had been Bands/Tribes Crews. Nation The Choctaw tribes. contacted Services
Hope 1989, 11, dated July letter responded, of Oklahoma (CDIB) had been Blood" of Indian Degree no "Certificate received were responses no Apparently, to Crews. issued Nations. Tribe the Cherokee Umatilla from the of Oklahoma 1989, Nation 9, the Choctaw On August lineal a he was claim that to Weldon Crews' responded of the tribe. enrollees original of one of the descendant Choc- for the Program Welfare Indian Child Director of the con- ancestry Crews' Weldon taw Nation confirmed cluded: the Choctaw Nation eligible for enrollment with [B.] is apply Act will the Indian Child Welfare Oklahoma therefore
this child. 30, 1989, to vacate On Crews filed August petition and to terminating rights provide order or a return of Crews to revoke custody. attempted visitation of ICWA her consent it was obtained in violation alleging duress, mental com- fraud, and/or the result of or lack of of mental fraud, duress, The claims for and lack petency. prejudice dismissed with competency subsequently were of counsel. stipulation Director of 1989, Brenda 20, Hampton,
On September Nation, notified the for the Choctaw Tribal Membership issued to a CDIB Services that Hope attorney 19, 1989. September Crews as of in a deposition 1989, testified Crews On October until after blood B. was of her Choctaw she was unaware in order to rein- heritage researched only and had bom also testified that her Crews rights. her parental state any practices participate not regularly does family the trial court granted On November or events. Services and dismissed Crews' Hope summary judgment *5 566
petition to invalidate the termination of her parental rights. The court held ICWA was inapplicable to invalidate the May 24 termination order because B. was not an "Indian child" under ICWA until September 19 when the CDIB was issued. The rejected court Crews' farther contention that application of the state termination/adoption procedures deprived her of due process of law. Crews appealed.
On 19, December 1989, the of B. Shaffers became final.
On 28, 1990, March the Court of Appeals granted the Choctaw Nation's motion to intervene. The Choctaw Nation contends that both Crews and B. have been members of the Choctaw Nation since birth based article upon section 1 Constitution, Choctaw which provides: The Choctaw Nation shall consist of all Choctaw Indians blood whose appear names on the final rolls of the Choctaw approved
Nation
pursuant
Section 2 of the
April
Act of
(34
136)
1906
Stat.
and their lineal descendants.
The Court of Appeals affirmed the trial court and held
that B. did not become an Indian child under ICWA until
19, 1989,
September
and therefore ICWA was not applicable
24, 1989,
when
May
the court
approved
termination
of Crews' rights. See In re Adoption
Crews, 60
202, 209-10,
Wn.
Crews and the Choctaw Nation petitioned for review. The Northwest Intertribal Court System and the Attorney General on behalf of DSHS filed amicus curiae briefs sup- Crews' Crews' porting position. parents were denied permis- sion to intervene on and to appeal file an amicus curiae Shaffers, Services Hope brief. The and Bertiaux oppose the petition. We affirm.
This is the first court has opportunity had to address Child of the Indian Welfare application Act of undertake this U.S.C. 1901 et We task seq. with a § pro- found the immediate and understanding con- long-lasting decision, B., of our not sequences only but for all the parties this case. final to invalidate applies issue ICWA is whether under entered rights properly terminating parental
decree have Court of parties Appeals state law. The B. met the definition date at which upon focused Thus, ICWA as determinative. "Indian child" under when B. became upon this court centered before arguments in an Indian membership eligible a member or was 1903(4). however, believe, not We do See U.S.C. tribe. § mem- of B.'s tribal this is issue. Regardless the decisive ICWA thereof, after consideration lack careful bership ICWA was we convinced that legislative history, and its are by the presented intended to the situation apply *6 facts of this case. specific sepa the large-scale
ICWA was enacted counteract tribes, and families, of their rations Indian children from or care placement, generally culture foster through adoption See Choctaw Mississippi in non-Indian homes. Band of 30, 32, L. 109 v. 490 U.S. 104 Ed. 2d Indians Holyfield, (1989). in and 1974 Surveys by S. Ct. 1597 conducted Affairs that 25 Association on American Indian showed from being to 30 of Indian children were percent separated their families and that of these chil fully percent 85 to care, were in foster being adoptive dren non-Indian placed homes, or 2d Cong., institutions. H.R. No. 95th Rep. (1978), Sess. 9 Code & Ad. Cong. 1978 U.S. reprinted found News 7531. and were separations placements These from a child resulting by to be unwarranted failure largely the cultural welfare services to understand differences other social and economic Indian and child-rearing practices H.R. at 10-12. of life. No. Rep. factors and Indian children These affected separations only the various Indian their but also tribes. parents, significantly "Culturally, chances of Indian survival are children, if means for the transmis- only reduced our real in non-Indian heritage, sion of the tribal are to be raised ways People. . . ." exposure homes and denied to the their at 34 on S. 1214 Hearings 490 U.S. Holyfield, (quoting on Indian Affairs and Public Lands Before the Subcomm. Comm, the House on Interior and Affairs, Insular 95th (1978)). Cong., 2d Sess. 193
In ICWA, enacting Congress expressly found: (4) families alarmingly high that an percentage of Indian removal, up by unwarranted, are broken often of their children from them and that an nontribal public private and agencies alarmingly high percentage of such children are placed adoptive in non-Ihdian foster and homes and institu- tions; and (5) States, exercising recognized jurisdiction their child custody proceedings through over Indian administrative bodies, often judicial recognize and have failed to the essential people relations of Indian and the cultural tribal and social in Indian communities prevailing standards and families. 1901(4), 25 U.S.C. declared the Congress policy ICWA § was to protect promote the best interests of Indian children and to the stability security and of Indian and families tribes
establishment of minimum Federal standards for the removal of Indian children from their families and the placement of such children in foster adoptive homes which will reflect the unique values culture, of Indian by providing assistance to Indian tribes in operation family child programs. service 25 U.S.C. 1902. § these implemented policy
ICWA goals by providing tribal over jurisdiction custody exclusive proceedings involv- Indian children who were ing domiciled or residing within a concurrent, reservation tribal but presumptively, tribal *7 (b). in other cases. 25 U.S.C. jurisdiction 1911(a), For § Indian child custody proceedings in taking place court, state ICWA substantive provides and procedural safeguards to alleviation of ensure these unwarranted separations families Indian children from their Indian and culture. See 1912(d) 25 U.S.C. 1901 et seq. For § section example, that active requires efforts be made "prevent breakup to 1915(b) family" the Indian and section mandates be in preferences given Indian foster care environments and preadoptive placements. thus, in Report The ICWA the words of the House accom- it, of the
panying
protect
rights
"seeks to
Indian child as
in
and tribe
community
Indian
rights
and the
an Indian
establishing
It does so
society."
in its
its children
retaining
child should
that,
possible, an Indian
where
policy
Federal
"a
by making sure that
community," and
in the Indian
remain
Indian
middle-class
ment with
white,
determinations are not based on "a
child welfare
which,
cases,
many
place-
in
forecloses
standard
family."
[an]
Indian
omitted.)
(Citations
While be an Indian unit Constitution, existing family we do not find an B. removed or to which he or environment from which ICWA in this situation specific would be returned. To apply ICWA. Con- not further policies purposes would invalidate we hold does not sequently, apply ICWA voluntary rights termination Crews' to adoption. consent when Indian inapplicable courts have held ICWA
Other existing from removed being children were *8 570 (1) there was no given The reasons were
environments.
non-
Indian environment where the mother was
existing
father
failed
Indian and the Indian
to establish paternity
(2)
custody
or after the
during
proceedings,
until
consented to the
in non-
voluntarily
adoptions
mothers
T.R.M.,
See In re Adoption
Indian environments.
525
of
(Ind. 1988),
J.Q. D.R.L.,
cert. denied sub nom.
v.
N.E.2d 298
Serr,
v.
The most recent
Indians
Band
Choctaw
is Mississippi
of ICWA
application
S. Ct. 1597
L. Ed. 2d
v.
490 U.S.
Holyfield,
parents
In
twins were bom to
Holyfield, illegitimate
and resi-
who were enrolled members of the Choctaw Tribe
The par-
dents of the Choctaw reservation
Mississippi.
a non-Indian
ents consented to the twins' adoption
county
decree was entered in a
adoption
After the
couple.
on the
court, the tribe moved
vacate the
decree
over
the tribal court had exclusive jurisdiction
grounds
denied
The court
the motion and the Missis-
proceeding.
affirmed,
Court
the twins
emphasizing
sippi Supreme
reservation,
on the
were
physically present
never been
had
surrendered,
and the parents went
to some
voluntarily
in a non-Indian environment.
the twins
to place
effort
Court reversed
Supreme
holding
States
United
because
twins assumed
jurisdiction
exclusive
tribe had
mother. The Court stated the applica-
domiciliary
the actions of the
not be defeated
could
tion of ICWA
however, the Court made clear that
holding,
In so
parents.
to avoid the
of ICWA was
purpose
their
setting
of Indian children from
cultural
"[r]emoval
[because
seriously impacts
long-term
removal]
such
tribal
*9
damaging
psychological impact
and has
social
survival
Indian children."
many individual
597,
S.
We are not unmindful
abusive
prior
child welfare
may have cut off
practices
large numbers of
from
persons
their Indian heritage.
37,
See Holyfield,
However, case, even if ICWA were to this its applicable provisions would not invalidate the termination of Crews' parental rights.
Courts cut off a to withdraw consent parent's right if once a final decree of termination is entered even In re 189 Mich. yet Kiogima, App. is not final. See adoption (1991); 6, 9-13, 472 14-16 B.R.T. v. Executive N.W.2d (N.D. J.R.S., 1986); In re Director, 391 N.W.2d 1984). (Alaska holdings The these cases P.2d 12-13 1913(c) ICWA, which provides: are section upon based parental for termination of any voluntary proceeding In of, child, to, an Indian the con- placement rights adoptive any any withdrawn for reason at parent may sent be final entry of a decree of termination or prior time to the be, may and the child adoption, as the case shall be returned parent. to the We concur with the interpretation of this section adopted by B.R.T., Kiogima, J.R.S. courts: 1913(c)] may consent refers to be one [§ of two kinds: a parental rights consent to termination of or a consent to adoptive placement. A consent to may termination be with- any time before a final decree drawn at of termination is entered; any consent at time before a final adoption. Congress decree of had intended consents to If any [prior termination to be revocable at time entry to] aof adoption, decree the words "as the may case be"
final
appear
would not
in the statute.
189 Mich.
at 12
Kiogima,
App.
J.R.S.,
(quoting
Crews and the Choctaw Nation argue, however, that B.'s actual Indian was not known until after the ancestry court the termination of approved rights Crews' because either duty Services or the court breached its inves- Hope tigate Crews' Indian ancestry. *10 388-73-044(7)
WAC provides: When foster cafe adoptive or placement of a nonenrolled Indian child planned, is agencies shall compile the Portland area office of the bureau of Indian "family affairs' form ances- try chart," or appropriate equivalent. Agencies shall take appropriate steps to eligible enroll children in respec- their tive tribes. "Indian child" is not defined the Washington Code; Administrative instead "Indian" is more broadly as: defined
(a) An enrolled Indian: (i) Any person who is eligible enrolled or for enrollment in a recognized tribe. (c) person An unenrolled Indian: A considered to an be federally by nonfederally recognized Indian Indian tribe Indian/Alaskan native community organization. or urban 388-73-044(2). The Bureau of Indian WAC Affairs guidelines state courts to "seek verification obligate of the child's sta- tus from either the Bureau of Indian Affairs or the child's tribe" if the court "has reason to believe a child involved in a child is an Indian". custody proceeding Prom the context of the guideline, this duty attaches voluntary as well as A involuntary court has such a proceedings. "reason to believe" when: Any public or agency state-licensed involved in child protec- family
tion services or which has support discovered information child suggests that the is an Indian child. Courts; Guidelines State Indian Child Custody Proceed- (1979). 67,584, 67,586 44 Fed. ings, Reg.
The one court which has addressed this issue has stated
in dicta that
if Indian child status is not known due to a
failure to disclose information
regarding
child's ancestry
and the petitioner
is prejudiced thereby, even an adoption
decree may
challenged.
be
See In re Adoption
Child
111 N.J.
Heritage,
187-89,
In this neither Hope Services nor the court had a duty investigate Crews' Indian ancestry based upon the information sparse Crews and Bertiaux provided to Struck. Crews, Struck, affidavits of and Bertiaux differ in
their account of the conversation regarding the parents' Indian ancestry. However, what is not disputed is that Crews told Struck that she had Indian blood but did not know how much. As stated Court of Appeals: [T]he imparted information sug- Struck Crews did not gest that eligible B. was recognized enrollment in a tribe. Crews' statements suggest failed to any relationship with an
identifiable tribe to gave positive no leads to enable her any discover tribal affiliation. ... Crews, 60 Wn. at App. 214. This is insufficient trigger investigative duties placed Hope Services and the court.
Lastly, Crews contends that the termination of her paren- tal rights obtained in violation of due process. Crews *11 her argues consent to the relinquishment of her parental rights cannot be presumed to be voluntary and that there judicial must be a of analysis whether this State's statutory scheme for voluntary relinquishments of parental rights with due comports process. Crews cites In L.S., re 14 Kan. (1990) 2d 788 P.2d App. 875 H.R., In re 581 A.2d (D.C. 1990) termina- voluntary that the proposition are to due subject process. tions con- who had However, L.S. involved a natural mother of her not to the termination but adoption, sented rights her A was held to terminate hearing parental rights. notice the proper the mother was not with provided but this a The court held was viola- under the statute. required L.S., 14 Kan. rights. App. the mother's due process tion of a due a process challenge by H.R. involved 2d at 262-65. were terminated when rights whose parental father H.R., 581 A.2d at relinquished rights. natural mother state actions in agency's seeking held that a court 1163. rights baby the father's before the of termination adoptive parents with the with- baby and placing bom constituted state action. his consent out case, procedures voluntary In this this State's herself, Crews, consented were followed terminations such situation of her In rights. the termination is no state action and due is not process implicated. there Hernandez, 447, 607 P.2d In re 25 Wn. Adoption App. See upholding decision Appeals We affirm the Court of favor summary judgment grant trial court's con- petition Crews' revoke dismissing Shaffers and rights. her parental sent to the termination of JJ., Utter, Smith, Guy, Johnson, concur. — I majority with the (concurring) agree J. Andersen, decision is correct and Appeals that the Court of opinion however, I with the majority's be disagree, affirmed. should (the Act) Act of 1978 the Indian Child Welfare conclusion in which a state court determines in those cases only applies affiliation, awareness, lifestyle tribal cultural some fashioned level judicially meets family birth "Ihdian-ness".
I Act read the as all cases in applying relinquishment (as Act) which involved, an "Indian child" defined the by is regardless of the child's to tribal culture previous exposure and traditions. This is because the Act itself clearly explicitly defines "Indian child" as a minor who (a) (b)
is either a member of an Indian eligible tribe or is for membership in an Indian tribe and is the biological child of a member of an tribe[.] (Italics mine.) 1903(4). 25 U.S.C. § B,
If Infant with whom concerned, this case is had met this definition of the Act at the time the relinquishment entered, order was then to my view the court should have had no but to option the apply provisions of the Act. How- ever, time, at that Infant B was not an "Indian child" as defined the Act. by
The Act does not apply children who are merely Indian descent or who have some Indian heritage. Rather, it — is the child's in or membership with a relationship tribe a political entity whose sovereignty is recognized by our — federal government of the triggers application Act. If Infant B was a member of the Choctaw Nation of Okla- homa at the time of the relinquishment or if he hearing, for eligible if membership his birth mother awas member of the tribe at the time of the relinquishment, then he was an "Indian child" and the Act should have been I applied. agree with the trial court and the Court of Appeals, the child involved in this case was not an "Indian child" at the time of the and, relinquishment there- fore, the Indian child welfare provisions of the Act and the state statute did not apply to this proceeding.
The Choctaw Constitution states: The Choctaw Nation of Oklahoma shall consist of all Choc- taw Indians blood whose names appear on the final rolls of approved pursuant the Choctaw Nation to Section 2 of the Act (34 136) Stat. and their April lineal descendants. tribe, At the trial court level the apparently interpreting section, provided this constitutional evidence that although tribe, B of the Infant was not a member he was eligible for hearing. at membership relinquishment time of is defini- alone to meet the "Eligibility" simply sufficient child"; of "Indian both eligible tion child must be and the membership child of member biological that the Although appeal tribe. tribe's counsel argues Choctaw constitutional section means that quoted above birth, was a member of is child the tribe since that position with the inconsistent interpretation provision given tribe itself. For Tribal the Director of the example, Department, overseeing is Membership who responsible *13 the of managing custody rolls membership and and who has Nation, rolls in an membership the stated Choctaw mother, presented the trial court that the birth affidavit Crews, was Tammy membership upon proof to tribal of direct admitted based from an lineage original enrollee of the Choctaw Nation. blood be membership upon will admitted B] the [Infant
Her child necessary paperwork. processing mine.) (Italics at The goes Clerk's 16-17. affidavit Papers, both Crews and Infant B were Tammy to state that on in the since Choctaw Nation" membership "eligible A from Choctaw Clerk's at 17. letter the Papers, birth. B states that Infant Child Welfare Director Program Nation at Another "eligible for enrollment." Clerk's 74. Papers, 19, 1989, the issued letter states that tribe September card, that showing Degree Certificate of Blood Ms. Tribe. is a member the Choctaw Tammy Crews tribe on has became a member Crews she argued B was It that Infant 19, 1989. was on date September aof biological child membership eligible both 1989, not until September tribal Thus it was member. Ms. between legal relationship nearly months after B for end, to an that Infant and the child came Crews "Indian child". definition of statutory first time met the deter- policy requires I hold that public would further relinquish- Act to the mination as to whether applies before be made of a child to ment adoption particular is order entered. at the time the relinquishment mother's of status change after rights are ter minated should have no effect on the infant whom she had previously I relinquished voluntarily. Thus would also add to the majority opinion by holding that the revocation provi sion set forth in RCW 26.33.160(4)(g)1 (allowing consent to adoption of an Indian child to be revoked at any time before the final decree of adoption) applies only in those cases the child is an "Indian where child" at the time the consent is approved.
It is for these reasons that I concur separately. JJ., concur with Andersen, Durham, Brachtenbach J.
Reconsideration denied May 1992.
[No. 58260-2. En 1992.] Banc. March Kerry Petitioner, v. Clark, R. Luepke, al, Rick et
Respondents. *14 1RCW 26.33.160 was amended the Laws of ch. 2.§ The section referring changed to the consent to of an Indian child was not but has 26.33.160(4)(h). been recodified and is now RCW
