01/19/96 JAMES R. AND COLETTE R. v. CINDY R. et al.,
LLR No. 9601041.CA
Cite as: LLR 1996.CA.41
LLR Ed. Note:
This opinion may be subject to revision before official publication.
[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.
[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.
[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];
Adoption of Lindsay C. (1991) 229 Cal.App.3d 404, 408.) To this end,
ICWA requires, among other things, that any voluntary termination of
parental rights respecting an Indian child be (1) executed in writing,
(2) recorded before a judge, and (3) executed more than ten days after
the birth of the child. (25 U.S.C.A., Section(s) 1913, subd. (a).) Any
consent not meeting these requirements is invalid and may be declared so
at any time by a court of competent jurisdiction upon petition by the
child, the Indian parent or custodian, or the child's tribe. (25
U.S.C.A., Section(s) 1914.)
[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.
[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.
[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.
[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,
Richard, the twins, and Richard's two other children. On March 9, 1994,
Amy Martin wrote 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
[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.
[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).)
[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. Subsection (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.
[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.)
[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
[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.)
[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. 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.)
[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.
[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.
[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].)
[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.
[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.)
[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.
[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.
[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.
[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
[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.
[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.
[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.
***** 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)
ordered 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.
[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).
[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.)
[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.
[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.
[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."
[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.
***** END FOOTNOTE(S) HERE *****
(c) 1996 Timeline Publishing Company, (206) 462-7714
LLR No. 9601041.CA
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