S.A. (fаther) appeals from a decree of adoption entered by the Etowah County Juvenile Court. The child, R.N., is the
The mother and father, residents of Oklahoma, began a relationship in 1986. The fathеr was age fifteen; the mother was age seventeen. The mother conceived and bore a daughter in 1987. The relationship ended when the father learned of the mother’s pregnancy. The father gave no support or assistance. Marriage was never discussed, but the father suggested placing the child for adoption. After the birth the father did not visit the hospital and refused to acknowledge paternity so that he could be listed as the father on the birth certificate.
The child lived with the mother and the maternal grandmother for the first five to eight months of her life. The father and the paternal grandmother occasionally visited the child during this time. The paternal grandmother periodically contributed diapers for the child’s use. The father made no contributions. When the сhild was approximately eight months old, the mother determined that she was unable to care for the child. She took the child to the paternal grandmother’s home, where the father resided. Aftеr caring for the child for approximately one month, the paternal grandmother requested to have full custody of the child. The maternal grandmother would not consent to this request. With the cоnsent of the paternal grandmother, the maternal grandmother took the child from the paternal grandmother’s home. The maternal grandmother then made arrangements for her sister and her brоther-in-law — E.J.P. and R.L.P. (great-aunt and great-uncle) — to care for the child. The great-aunt and great-uncle live in Etowah County, Alabama and are the appellees in this action.
In October 1987, shortly after the child arrived in Alabama, the great-aunt and great-uncle filed a petition for temporary custody of the child. The trial court granted the petition. It is not clear whether the father wаs legally served in the custody proceeding. It is without dispute that the father had actual notice of the custody order and took no action to have it set aside.
In February 1989 the great-aunt and great-uncle filed a petition for adoption of the child. The case was transferred to juvenile court. The father and the Cherokee Indian Nation in Oklahoma were notified prior to the hearing. The Cherokee Indian Nation did not respond to the notification. A hearing on the petition was held in January 1990. The father, the mother, and the great-aunt and great-uncle were prеsent. In February 1990 the trial court granted the petition for adoption.
From October 1987 to January 1990 the father had no contact with the child except for occasional phone cаlls. During this time the child received a small financial contribution and an occasional gift from the father. At the time of the adoption hearing, the father was nineteen years old and enrolled as a freshman at a community college in Garden City, Kansas.
The father is Vs Cherokee Indian. He was not born on a reservation, has never lived on a reservation and has never attended a rеservation school. The only contact the father has had with the reservation has been for medical or dental purposes. He is registered with the Cherokee Nation. The mother is not an Indian. The child was not born on a reservation and has never been on a reservation.
The father appeals and asserts that the trial court erred in refusing to follow specific prоcedures outlined in the Indian Child Welfare Act of 1978 (ICWA), 25 U.S. C.A. §§ 1901-1963 (West 1983). The great-aunt and great-uncle contend that the ICWA is not applicable. The dispositive issue, therefore, is the applicability of the ICWA to the facts of this case.
The ICWA was enacted in response to a rising concern in the 1970’s over the consequences of the removal of Indian children from their Indian families and Indian tribes by abusivе child welfare practices. Mississippi Band of Choctaw Indians v. Holyfield,
“To protect the best interests of Indian children and to promote the stability and security of Indian tribes and families by thе establishment of minimum Federal standards for the removal of Indian children from their families and the placement of such children in foster or adoptive homes which will reflect the unique values of Indiаn culture.... ”
25 U.S.C.A. § 1902.
The ICWA operates where an Indian child is the subject of a child custody proceeding. Child custody proceedings include foster care placement, termination of parental rights, pre-adoptive placement, and adoptive placement. 25 U.S.C.A. § 1903. The ICWA defines “Indian child” as an unmarried person less than eighteen years old who is either a member of, or is eligible for membership in, an Indian tribe. 25 U.S.C.A. § 1903(4). If the threshold requirements are met, the provisions of the ICWA are applicable.
A number of jurisdictions, however, have created an exception to the applicability of the ICWA even in situations where the threshold requirements have been met. See In the Matter of the Adoption of Baby Boy L.,
The “Existing Indian Family” exception is not without its critics. See In re Adoption of a Child of Indian Heritage,
We find that the facts of this case lend themselves to an application of the “Existing Indian Family” exception.
The child may be an Indian child, as defined in the act, by virtue of her biological father. However, since birth, she has either resided with her non-Indian mother or her non-Indian great-aunt and great-uncle — except for a period of four weeks when she lived with her father and paternal grandmother. The mother and father were never married and never lived together. The father never supported the mother or the child financially. The child has had minimal сontact with her father. She has had no involvement in tribal activities or any participation in Indian culture. The evidence reflects that the father has had only minimal contact with the reservation. The father never exercised his parental responsibilities and never attempted to become a part of the child’s life.
This child was never a part of an Indian family environment. Shе has never been a member of an Indian family, has never lived in an Indian home, and has never
The father next asserts that the proceedings were held in violation of state law. Specifically, he asserts that the child’s initial entry into Alabama was in violation of § 38-7-15, Code 1975. Section 38-7-15 provides in pertinent part the following:
“No person or agency shall bring or send any child into the state of Alabama for the purрose of placing him or procuring his adoption or placing him in any child-care facility ... without first obtaining the consent of the department.”
The record reflects that the child was not brought into this state for adoption purposes. The great-aunt and great-uncle initially agreed to take the child into their home in an effort to lend support to the mother and the maternal grandmother. They did not begin adoption proceedings until a year and a half later. Even if this were not the case, the record reflects that shortly after the child’s arrival the great-aunt and great-uncle notified the department when they petitioned for temporary custody. There was no violation of § 38-7-15.
We conclude that the ICWA is not applicable to this case and that there was no violation of § 38-7-15. Furthermore, our review of the record supports the trial court’s finding that it was in the best interests of the child to grant the petition for adoption. This case is affirmed.
The foregoing opinion was prepared by Retired Appellate Judge L. CHARLES WRIGHT while serving on active duty status as a judge of this court under the provisions of § 12 — 18—10(e), Code 1975, and this opinion is hereby adopted as that of the court.
AFFIRMED.