Opinion by
In this stepparent adoption proceeding, N.B. (stepmother) appeals the order dismissing her petition to adopt B.S.B. (the child), who is an Indian child. We agree with the trial court that her petition fails because she did not prove that active efforts were made to prevent the breakup of the Indian family, a requirement to terminate parental rights under the Indian Child Welfare Act of 1978, 25 U.S.C. §§ 1901 to 1963 (2001)(ICWA). Therefore, we affirm. Based on our affir-mance, we need not address the merits of the cross-appeal of L.W-E. (mother).
I. Factual and Procedural Background
In 1998, the child was born to mother and Z.B. (father). The child has been in father's primary care since birth. Mother and father have not lived together since 1999.
Stepmother petitioned to terminate mother's parental rights and to adopt the child on the grounds that mother had abandoned him and not paid child support for more than one year.
The Assiniboine and Sioux Tribes of the Fort Peck Reservation (the tribe) intervened below because of mother's enrollment in the tribe. Mother enrolled the child in the tribe eight months after the petition was filed. His status as an "Indian child" for the purposes of the ICWA is undisputed. See 25 U.S.C. § 1903(4) (2001). A prior judge held that the ICWA applied to this stepparent adoption proceeding.
After hearing testimony from mother, stepmother, father, and experts for both sides, the trial court found beyond a reasonable doubt that mother had not provided reasonable support for and had abandoned the child for at least one year before the petition was filed,. See § 19-5-208(1)(d)(II), C.R.S.2006.
The court rejected the existing Indian family exception to application of the ICWA and held that the ICWA was constitutional, using a rational basis test.
Applying the ICWA, the court found beyond a reasonable doubt that continued custody of the child by mother would likely result in serious emotional damage to him, but that stepmother had not shown that active efforts were made to provide remedial services or rehabilitative programs to prevent the breakup of the Indian family. Because stepmother failed to establish such active efforts, the court denied her petition.
II. Introduction
Stepmother contends the ICWA does not apply to stepparent adoption proceedings; the existing Indian family exception should bar the ICWA's application in cases where the child has never lived in an Indian home the and participated in Indian culture; ICWA is unconstitutional; and requiring her, as a private petitioner, to make active efforts to prevent the breakup of the Indian family under 25 U.S.C. § 1912(d) (2001) is unreasonable.
These are issues of federal law that have not been decided by either the United States Supreme Court or any Colorado appellate court. However, they have been resolved in several other states. We reject each of stepmother's arguments based on the majority view among those courts.
The trial court's interpretation of the ICWA is a question of law that we review de novo. See Elrick v. Merrill,
In the exercise of its exclusive constitutional authority over Indian affairs, Congress enacted the ICWA, which established minimum standards for the removal of Indian children from their families. B.H. v. People in Interest of X.H.,
III. Application of the ICWA in Stepparent Adoptions
Stepmother first contends the ICWA does not apply in stepparent adoptions or where a
A. Stepparent Adoptions
Courts in several states have concluded that the ICWA applies in stepparent adoption cases. See In re Crystal K.,
We are persuaded by these decisions and conclude that the ICWA applies to stepparent adoptions.
In so holding, we recognize that Congress enacted the ICWA to address rising concern over the consequences to Indian children and tribes of abusive state and county child welfare practices which separated many Indian children from their families and tribes through adoption by strangers. See Holyfield,
Here, had stepmother succeeded, mother's parental rights would have been terminated when the adoption decree issued. Thus, this proceeding is a "child custody proceeding" within the meaning of the ICWA. See In re Crystal K.,
Further, Congress excepted only dissolution and delinquency proceedings from this broad definition of a "child custody proceeding" under the ICWA. 25 U.S.C. § 1903(1) (2001); In re Crystal K.,
We also recognize that the legislative history does not show that Congress discussed stepparent adoption when addressing the ICWA. But Congress is presumed to be aware of existing law. See Colo. Water Conservation Bd. v. City of Central,
Colorado has had a stepparent adoption statute since 1967. Colo. Sess. Laws 1967, ch. 443, §§ 22-4-6, 22-4-7 at 1018, § 1. Other state statutes allowing stepparent adoption also predated the ICWA. See, e.g., Cal.Civ.Code §§ 224, 226.9 (1968); Idaho Code Ann. §§ 16-1504, 16-2005. (1963 & Supp. 1970); N.M. Stat. Ann. §§ 22223, 22226 (Supp.1975); Okla. Stat. Ann. tit. 10 § 60.57 (1966); Tex. Fam.Code Ann. §§ 15.02, 16.03 (1975 & Supp.1976). Cases addressing stepparent adoption date back to 1916. See Buck v. Meyer,
Thus, because Congress was presumably aware of stepparent adoptions when it enacted the ICWA, we conclude that had it intended to exclude such proceedings, it would have done so.
Stepmother further argues that the ICWA does not apply here because a stepparent adoption is a voluntary proceeding when the state is not the petitioning party. However, the distinction between voluntary and involuntary proceedings depends on whether the parent whose parental rights are at issue
Stepmother's reliance on the statement in People in Interest of S.R.M.,
Accordingly, we conclude that Congress intended to include stepparent adoption proceedings in the ICWA.
B. Adoptions Where the Child Remains with One Biological Parent
Stepmother also argues that the ICWA is inapplicable because the child will remain in father's custody. However, the ICWA does not except custody disputes within an extended family or draw distinctions based on who will be the post-adoption parents of the Indian child. A.B.M. v. M.H.,
Here, although the child will not be removed from father, had stepmothers petition succeeded he would have been legally severed from mother. Because the ICWA protects mother's parental rights to the child, see D.J. v. P.C.,
We are also unpersuaded by stepmother's citation to 25 U.S.C. § 1915(b) (2001), the ICWA's placement preference provision, as evidence that a child must be removed from both biological parents for the statute to apply. That section mandates a preference for a preadoptive placement, absent good cause to the contrary, to
(i) a member of the Indian child's extended family;
(ii) a foster home licensed, approved, or specified by the Indian child's tribe;
(ii) an Indian foster home licensed or approved by an authorized non-Indian licensing authority; or
Gv) an institution for children approved by an Indian tribe or operated by an Indian organization which has a program suitable to meet the Indian child's needs.
If stepmother's petition were successful, she would adopt the child, and she is an extended family member as defined by the ICWA. See 25 U.S.C. § 1903(2) (2001) (an "extended family member" is "defined by the law or custom of the Indian child's tribe or, in the absence of such law or custom, shall be a person who has reached the age of eighteen and who is the Indian child's grandparent, aunt or uncle, brother or sister, brother-in-law or sister-in-law, niece or nephew, first or second cousin, or stepparent").
Accordingly, we further conclude that even if an Indian child will remain with one biological parent, the ICWA still applies to the stepparent adoption.
IV. Existing Indian Family Exception
Stepmother next contends we should adopt the existing Indian family exception and on that basis conclude the ICWA does not apply because here the child had no connection with the tribe. See In Interest of C.C.G.,
The Kansas Supreme Court created the existing Indian family exception by holding the ICWA should apply only to the removal
Although courts in Oklahoma and Washington originally adopted the exception, both states have since statutorily rejected it. Okla. Stat. tit. 10, § 40.3 (2001); Wash. Rev. Code §§ 26.10.034(1), 26.33.040(1).
The courts of Alaska, Arizona, Idaho, Illinois, Michigan, Montana, New Jersey, New York, North Dakota, Oregon, South Dakota, and Utah have also rejected the existing Indian family exception. See In re Adoption of T.N.F.,
California courts are split on this issue. The first, third, and fifth appellate districts have rejected it. In re Adoption of Hannah S.,
While not directly addressing the applicability of the existing Indian family exception, in Holyfield,
We agree with this view. Just as a parent or Indian custodian cannot defeat application of the ICWA by removing a child from a reservation, a parent or Indian custodian should not be able to do so by unilaterally determining that the Indian child will not be raised in an Indian home and will not participate in Indian culture. Both actions similarly defeat the tribal interest recognized by the statute.
Several of these courts have also explained that (1) Congress stated the ICWA applies when the child is an Indian child and the matter is a child custody proceeding; (2) Congress limited the application of the ICWA in only delinquency and dissolution proceedings; and (8) Congress stated that the ICWA's purposes require its application
Moreover, the statutory scheme does not require the child to be part of an existing Indian family. The word "existing" does not appear in the ICWA. In re Baby Boy C.,
Hence, applying the exception would empower state courts to make an inherently subjective factual determination as to the "Indianness" of a particular child or the parents, which courts are "ill-equipped to make." In re Alicia S.,
Such a determination could also conflict with congressional policy underlying the ICWA that placement of Indian children who are subject to child custody proceedings must be made in accordance with Indian cultural or community standards. See 25 U.S.C. § 1915(d) (2001) (the standards to be applied in meeting the placement preference requirements shall be the "prevailing social and cultural standards of the Indian community in which the parent or extended family resides or with which the parent or extended family members maintain social and cultural ties").
Applying the exception would result in each state court using its own value system to decide whether a child is "Indian enough" for the ICWA to apply, which would limit the tribes' efforts to regain members who were lost because of earlier governmental action. Quinn v. Walters,
As the court explained in In re Alicia S.;
It is "most improbable" that Congress meant to leave it to the states to determine whether to apply a statute intended to limit their power in Indian child custody proceedings. "Engrafting a new requirement into ICWA that allows the dominant society to judge whether the parent's cultural background meets its view of what 'Indian culture' should be puts the state courts right back into the position from which Congress has removed them."
In re Alicia S.,
Accordingly, we decline to adopt the existing Indian family exception.
V. Constitutionality of the ICWA
Citing In re Bridget R.,
Preliminarily, we note that stepmother argues in terms of an "as-applied" challenge on appeal, as she did below. However, she is raising a facial challenge because she asserts that the statute is unconstitutional in all stepparent adoptions, not merely in her particular circumstances. See Sanger v. Dennis,
Several courts have declined to adopt the Bridget R. analysis because (1) the United States Supreme Court has consistently rejected claims that laws which treat Indians as a distinct class violate equal protection; (2) the different treatment of Indians and non-Indians under the ICWA is based on the parents' and children's political status as tribal members and the sovereign nature of the tribe, not on race; (8) the substantive due process and equal protection challenges are subject to a rational basis analysis, and the ICWA is rationally related to both protection of the integrity of Indian families and tribes and fulfillment of Congress's unique guardianship obligations toward Indians; and (4) Congress's plenary power to legislate Indian matters is well established, and the ICWA is an appropriate exercise of that power, which does not violate the Tenth Amendment. See In re Vincent M.,
We also note that, other than In re Bridget R. and decisions from some intermediate California appellate courts following it, no authority recognizes a child's constitutional right to a stable home. Bridget R. relies solely on California Supreme Court decisions that do not address the ICWA. In re Baby Boy C.,
Neither the United States Supreme Court nor the Colorado Supreme Court has recognized a child's substantive due process right to a stable home. Cf. Dawson v. Pub. Employees' Retirement Ass'n,
Accordingly, we conclude that the ICWA is constitutional and does not violate the Tenth Amendment.
VI. Active Efforts to Prevent the Breakup of the Indian Family
Finally, stepmother contends that even if the ICWA governs stepparent adoptions of Indian children and no constitutional infirmity results, requiring her to establish active efforts to provide remedial services and rehabilitative programs to prevent the breakup of the family is unreasonable because she is a private petitioner. Again, we disagree.
A. The Active Efforts Requirement
25 U.S.C. § 1912(d) provides in pertinent part:
Any party seeking to effect ... termination of parental rights to, an Indian child under State law shall satisfy the court 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.
Here, the trial court held that this section required stepmother to provide those services, but found that she had made no such efforts. Stepmother does not challenge the latter finding. Rather, she argues that because she could not offer remedial services to mother which would be adequate under the ICWA, it should not be interpreted as making her responsible for creating, administering, funding, and staffing a quasi-social services department. We are not persuaded.
The ICWA's plain language requires the petitioning party to show that "active efforts" were made to prevent the breakup of the Indian family. 25 U.S.C. § 1912(d). As previously discussed, Congress made no excep
We acknowledge that Colorado law recognizes the "paramount importance" of the best interests of the child. See, e.g., In re Adoption of C.A.,
But here we are applying the ICWA. See Quinn v. Walters,
The ICWA provides more limited recognition of the child's best interests. That standard appears only in section 1902, which declares a national policy "to protect the best interests of Indian children" by establishing minimum standards for removal. Thus, in our view the active efforts. requirement is not excused even if requiring such efforts may not further the best interests of an Indian child in a particular case.
Therefore, we conclude that the burden of proving fulfillment of the active efforts requirement applies to private petitioners such as stepmother. 'We express no opinion whether a private petitioner must make those efforts directly.
B. Futility of Active Efforts
Before the trial court, stepmother did not assert that she should be excused from the active efforts requirement if such efforts would be futile. However, because futility was addressed in People in Interest of K.D.,
In her supplemental brief, stepmother argues that once an Indian parent is shown to have abandoned a child, any effort to reunify the child with that parent would necessarily be futile, and thus cannot prevent the breakup of the Indian family. We do not read KD. so broadly.
In KD., a division of this court recognized that a petitioning party need not "persist with futile efforts" by providing further services to an Indian parent who has already received services which did not reunify the family. K.D.,
The social services department in KD. had sought to terminate parental rights in the dependency context without offering the Indian father a treatment plan because he suffered an emotional illness under sections 19-3-508(1)(e)(I) and 19-3-604(1)(b), C.R.$.2006, and therefore no plan could address his parental unfitness. The division held that the department was not required to offer the father additional services to comply with the active efforts requirement under the ICWA because he had already received services during two prior dependency proceedings. K.D.,
Stepmother's reliance on In re Baby Boy Doe,
We need not decide whether in certain extreme cases where a parent is found to have abandoned an Indian child, the failure to show reunification efforts might be excused because they would be futile. The facts showing abandonment will vary widely from case to case, and determining futility in any given case would be a factual matter necessarily left to the trial court. In re Baby Boy Doe,
Here, despite its finding of abandonment, the trial court also found that stepmother could have engaged in active efforts to provide remedial services and rehabilitative programs by informing the child of the identity of his biological mother and seeking to preserve the relationship between them by showing the child pictures of her. Stepmother does not challenge this finding as lacking record support and admits that she made no such efforts. Thus, we decline to consider her assertion that no efforts could have prevented breakup of the Indian family. Nor do we decide whether these efforts alone would have been sufficient.
Stepmother correctly points out that under Colorado's dependency law, treatment plans are required only when the parents are known to, and have been actively engaged with, - their _ children. See §§ 19-3-508(1)(e)(I), - 19-3-604(1)(a), - C.R.S.2006. However, this is not a dependency case. Further, state law could not overcome the ICWA's active efforts requirement. Middleton v. Hartman,
Citing People in Interest of A.N.W.,
We also reject stepmother's argument that her failure to satisfy the active efforts requirement should be excused because the trial court found that "continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child" under 25 U.S.C. § 1912(f) (2001).
The ICWA requires a petitioner to prove both active efforts and likelihood of serious damage to the child from continued custody by a natural parent. 25 U.S.C. § 1912(d), (D. The active efforts inquiry focuses on reunifying the broken Indian family. See K.D.,
Thus, 25 U.S.C. § 1912(F) is not an alternative to active efforts, which assure an attempt to reunify the Indian family. Rather, it affords the basis for terminating parental rights by recognizing that the child may be at serious risk if returned to parental custody, notwithstanding prior active efforts to
We recognize the anomaly in refusing to terminate parental rights because all of the requirements under the ICWA have not been met where, if this matter were not an ICWA case, state law emphasis on best interests of the child would likely require termination. To the extent that failure to comply with all of the ICWA's requirements may sometimes preclude a termination of parental rights that would occur under Colorado's stepparent adoption statute, Congress deemed such a result necessary to preserve tribal interests. Further, during the allocation of parental rights proceeding here, the child's best interests must be considered. See §§ 14-10-1283, 14-10-123.4, C.R.S.2006.
Having identified efforts that stepmother could have undertaken but finding that she made no efforts, the trial court need not have addressed section 1912(F). However, the court's section 1912(F) finding does not absolve stepmother of the consequences of the lack of efforts at reunification. Had stepmother taken the steps the court identified, the child may not have viewed mother as a stranger, which was a factor in the court's conclusion under section 1912(f).
Stepmother notes in her supplemental brief that she filed a postpetition treatment plan, to which mother objected. Before the hearing, the trial court denied her motion to implement a treatment plan. She did not seek an interlocutory appeal of this order under C.A.R. 21, did not argue at the hearing that this motion constituted adequate active efforts under the ICWA, and did not raise the issue in her opening brief. Therefore, we do not consider it. See Tate v. Colo. Dep't of Revenue,
Accordingly, we affirm the trial court's holding that stepmother's failure to show active efforts as required by 25 U.S.C. § 1912(d) precludes termination of mother's parental rights through this stepparent adoption.
VIL. Cross-appeal
Once the trial court concluded that stepmother had failed to make active efforts to reunify the Indian family, termination of mother's parental rights through stepmother's petition to adopt the child could not occur under the ICWA. If stepmother brings a new petition under the Colorado stepparent adoption statute, she will again have to prove abandonment or failure to support for the year preceding the filing of that new petition. In re R.H.N.,
Therefore, we need not address mother's argument on cross-appeal that insufficient evidence supported the findings of abandonment and failure to support, and of substantial risk of damage, because these findings would not be binding in a new petition. See In re Tonko,
The order is affirmed.