Court: Court of Appeals of Washington; January 14, 1991; Washington; State Appellate Court
Tammy Lee Crews appeals the denial of her motion for summary judgment and the granting of summary judgment to Hope Services, which resulted in the dismissal of her petition to vacate the order terminating her parental rights. The Court of Appeals of Washington affirmed the trial court's decision.
Crews, 22 and unmarried, gave birth to a boy on May 22, 1989. Prior to the birth, she sought counseling from Hope Services regarding adoption. On May 1, 1989, she signed a consent form for the termination of parental rights and adoption, which included a waiver of her right to receive notice of proceedings. The form stated that her consent was revocable until court approval, and after approval, only revocable under specific conditions such as fraud or mental incompetence, but no later than one year post-signing. Additionally, the form indicated that the Indian Child Welfare Act (ICWA) did not apply to her case.
Crews’ account of discussions regarding her potential Indian ancestry differed from that of Hope Services counselor Mary Struck and the child's father, Charles Bertiaux. Crews claimed Struck advised her to conceal her Indian heritage to avoid delays in the adoption process. In contrast, Struck and Bertiaux indicated that during their discussion, Crews acknowledged possible Indian ancestry but believed it was insufficient for ICWA applicability. Struck maintained that she did not instruct Crews to hide her heritage and believed that ICWA was inapplicable given Crews' lack of tribal affiliation. Crews had thoroughly considered her options for the child, consulting multiple sources, despite her parents' disapproval of the adoption.
Bertiaux reported that Crews faced significant pressure from her parents to keep her baby, threatening estrangement if she opted for adoption. After reviewing profiles, Crews and Bertiaux chose Rick and Sharon Shaffer as the adoptive parents. Following the signing of consent forms, Crews met with the Shaffers, expressing confidence in her decision. On May 24, 1989, shortly after the birth of the child, the court terminated the parental rights of both Crews and Bertiaux, allowing the Shaffers to take the baby home after a dedication ceremony.
Crews later contacted Struck on May 26, 1989, requesting the return of her baby, although Struck claimed Crews was content the previous day. Crews expressed a desire to change her mind about the adoption on May 30, 1989. About a month later, Struck discovered that Crews claimed Native American ancestry. Following this, Struck reached out to the Choctaw and Umatilla tribes, but as of July 11, 1989, the Choctaw Nation had no record of blood certification for Crews, and there was no response from the Umatilla tribe.
On August 24, 1989, Crews filed a revocation of her consent to the adoption, arguing the consent was invalid under the Indian Child Welfare Act (ICWA) due to fraud and duress. She later petitioned to vacate the termination order. The prospective adoptive parents and Bertiaux were involved in the proceedings, and a guardian ad litem was appointed. Crews and her father became enrolled members of the Choctaw tribe on September 19, 1989.
On October 11, 1989, Crews filed for summary judgment, asserting her consent was obtained in violation of the ICWA and that she had timely revoked it. She also claimed violations of due process under Washington law. The trial court denied Crews' motion for summary judgment on November 14, 1989, granting summary judgment for Hope Services and dismissing Crews' petition, leading to her timely appeal.
The excerpt outlines the statutory framework for adoption in Washington, emphasizing procedures involving relinquishment and consent, particularly for Indian children, under RCW 26.33. It details the necessity of court approval and the requirement that the personal appearance of the parent is mandatory for Indian children, alongside establishing timelines for filing and hearings related to adoption.
Consent to adoption can be revoked at any time until court approval, after which revocation is limited to specific grounds like fraud, duress, or mental incompetency within one year. For Indian children, consent may be withdrawn for any reason until a final adoption decree is issued, and thereafter only for fraud or duress within two years of that decree. In this case, Hope Services adhered to correct procedures unless the Indian Child Welfare Act (ICWA) applies. Although consent was obtained from Crews before the child's birth, court approval occurred two days post-birth, and the ICWA was asserted not to apply. Crews' attempt to revoke her consent is deemed late unless she can credibly claim fraud or duress, which she has not substantiated. Her claim that she was instructed to "keep quiet" about her Indian heritage does not constitute fraud regarding consent. The ICWA establishes standards for the removal and placement of Indian children, defining an "Indian child" as an unmarried person under eighteen who is a member or eligible for membership in a tribe. The Choctaw Nation asserts that membership does not require formal enrollment, arguing that both Crews and the child are members by birth. However, this interpretation raises questions about compliance with statutory definitions that differentiate between membership and eligibility, as established in prior case law.
Brenda Hampton's affidavit, as the Director of Tribal Membership for the Choctaws, affirms that Choctaw membership is interpreted in accordance with 25 U.S.C. 1903. She confirms that Crews was granted tribal membership due to her direct blood lineage from an original Choctaw enrollee and that her child, B., will be admitted following the completion of necessary paperwork. Crews has been eligible for membership since birth. Enrollment for Crews occurred on September 19, 1989, which means the Indian Child Welfare Act (ICWA) would apply to any adoption proceeding initiated after this date. However, the court's approval for relinquishment and consent to adoption occurred on May 24, 1989, prior to Crews' enrollment. Hence, the determination of ICWA applicability must be based on the petition approval date.
Washington's adoption policy emphasizes the child's best interests, stability in family relationships, and finality in placements. While the ICWA prioritizes the stability of Indian tribes and families, it also acknowledges the importance of finality in placements, as seen in 25 U.S.C. 1913(d), which allows for revocation of consent within two years of the final adoption decree only for fraud or duress. Judicial interpretations of the ICWA, such as in In re Adoption of Baby Boy L. and In re Adoption of T.N.F., illustrate the tension between respecting tribal heritage and ensuring stability for the child. The T.N.F. ruling underlined the need for finality in adoptions and criticized the notion that adoption orders could be challenged indefinitely, emphasizing that this could disrupt the adopted child's upbringing. Though T.N.F. does not directly pertain to the current case, its principles regarding the balance between federal procedural rights and the adoptive family's interests are relevant.
Finality and stability in an adopted child's life necessitate determining the child's status as either an Indian or non-Indian child based on the time of court approval for relinquishment and the order terminating parental rights. B. was not classified as an Indian child on May 24, 1989, when Crews' parental rights were terminated, thus excluding the application of the Indian Child Welfare Act (ICWA). Compliance with WAC 388-73-044(7) and RCW 26.33.040 mandates that every relinquishment petition must state whether the ICWA applies, requiring placement agencies to investigate the child’s heritage.
Crews argues that former WAC 388-73-044(7) imposes broader obligations on adoption agencies, including compiling a family ancestry chart for non-enrolled Indian children and taking necessary steps for tribal enrollment. Crews also asserts that state courts have an inquiry duty, as outlined in the Bureau of Indian Affairs (BIA) "Guidelines for State Courts: Indian Child Custody Proceedings," which details scenarios prompting court inquiries about a child's Indian status.
The guidelines specify that reasons for a state court to suspect a child is Indian include information from parties involved in the case, findings by child protection agencies, statements made by the child, or acknowledgment by court officers. In re Colnar emphasizes that the BIA guidelines clarify requirements for notifying tribes in involuntary proceedings under 25 U.S.C. 1912(a). Crews contends that Hope Services and the court failed in their inquiry duties, which could have led to B.'s enrollment in the Choctaw tribe and thus classification as an Indian child. However, the court concludes that the duty to apply BIA guidelines in Colnar was specific to involuntary terminations, and no similar obligation exists for voluntary terminations. Furthermore, the facts in this case do not meet the criteria outlined in the BIA guidelines.
Crews contends that subsection (ii) applies because Hope Services had information indicating B. was an Indian child, but this claim is rejected. Even if Crews’ account of her conversation with Struck is accepted, she only mentioned having Indian blood without specifying the extent or identifying any tribes. Struck's affidavit, which Crews does not dispute, states that she indicated she was not a tribe member and could not identify any tribal affiliations. Bertiaux's affidavit, also uncontested by Crews, notes that she claimed Indian blood from her mother's side but lacked details due to her mother's adoption. Crews stated her father was German, with no reference to his potential Indian heritage or the Choctaw tribe, in which she is enrolled. This lack of specific information does not support the conclusion that B. qualifies as an Indian child under 25 U.S.C. 1903(4).
Regarding Hope Services' duty to inquire, WAC 388-73-044(7) mandates adoption agencies to pursue enrollment of Indian children, defining "Indian" more broadly than ICWA. However, the information provided by Crews did not indicate B.'s eligibility for tribal enrollment, lacking any identifiable tribal connection. Thus, the conversation did not create an obligation for Hope Services to investigate further. Even if there had been a breach of duty, it remains speculative whether such an investigation would have confirmed that B. or Crews were enrolled tribe members at the time parental rights were terminated. There is no evidence that Struck's information would have revealed ties to the Choctaw tribe, and assuming an investigation might have shown B. eligible for enrollment does not confirm his status as an Indian child under ICWA as of May 24, 1989. Speculation exists regarding whether Crews would have enrolled herself, especially given her father's lack of initiation in this regard and her potential unawareness of her Indian ancestry.
Crews also claims that Hope Services had an obligation to enroll B. as a tribal member. While WAC 388-73-044(7) states that steps should be taken to enroll eligible children, this duty does not apply under the present circumstances. The regulation’s reference to "adoptive placement" is interpreted not to extend to actions before the court's approval of parental rights termination, which leaves rights and responsibilities with the biological parents until that point. Mandating enrollment before terminating parental rights would infringe upon the parents' due process rights, particularly in a case of voluntary relinquishment as seen here.
The Fourteenth Amendment of the U.S. Constitution and Article 1, section 3 of the Washington State Constitution ensure that individuals cannot be deprived of life, liberty, or property without due process of law. In Stanley v. Illinois, the Supreme Court emphasized the fundamental rights of parents to conceive and raise their children, recognizing these rights as more precious than property rights. Due process entails providing notice and an opportunity for a hearing, with procedural safeguards tailored to the specific case. Factors influencing the due process requirements include the nature of the interest affected, the procedure's conduct, the reasons for the procedure, available alternatives, and the balance between potential injury and benefits.
Crews contends that RCW 26.33, which allows her only 48 hours post-birth to revoke consent for adoption without requiring her presence at the relinquishment hearing, violates due process. She cites Santosky v. Kramer, which highlights the serious nature of parental rights termination by the State. However, the distinction is made that voluntary termination, as in Crews’ case, lacks the "state action" necessary to invoke due process concerns. The case of In re Hernandez illustrates this further; the court determined that the voluntary relinquishment of parental rights does not equate to a deprivation of liberty in the traditional sense, as it was a personal decision made without state coercion.
The due process clause limits state power but does not mandate the state to protect individuals from harm by other means. In the case of Crews, the absence of "state action" means her due process claim cannot succeed. If a due process right were recognized in this adoption context, no changes to statutory procedures would be needed. The analysis of due process violations involves three factors: the affected private interest (the parent-child relationship), the risk of erroneous deprivation through existing procedures, and the government's interest in maintaining adoption finality. The current statutory framework minimizes the risk of wrongful deprivation, as no one can compel a parent to relinquish a child voluntarily. Crews argues that the 48-hour period to revoke consent post-birth is insufficient, yet this period begins only with the parent's voluntary signature on the relinquishment form. The government seeks to ensure the welfare of adopted children through procedural finality, and Crews has not demonstrated the necessity of additional procedures. The trial court's judgment is affirmed.
In dissent, Judge Baker emphasizes the importance of the Indian Child Welfare Act (ICWA), highlighting Congress's findings about the significance of Indian children to tribal integrity and the alarming rates of their removal from families by nontribal agencies. The ICWA aims to protect the best interests of Indian children and promote tribal stability, with its requirements integrated into Washington state adoption law. The State of Washington asserts that these protections benefit both those with strong tribal ties and individuals like Crews and her son, who may have lost their connections due to historical separations from tribal culture.
Prior to the Indian Child Welfare Act (ICWA), evidence indicated that 25 to 35 percent of Indian children were separated from their families and placed in non-Indian adoptive or foster homes. The ICWA aims to preserve the cultural and familial ties of Indian children, benefiting not only enrolled tribal members but also those eligible for tribal membership. Legislative history emphasizes that Congress has the authority to protect these children, who cannot independently navigate tribal enrollment processes due to their minority status.
The ICWA establishes federal standards to safeguard the "best interests" of Indian children, which encompass not only stability and finality in placements but also the preservation of tribal connections. Under the ICWA, a mother can revoke consent to an adoption at any time before it is finalized, contrasting with non-Indian adoption laws, which permit revocation only within 48 hours post-court approval. Additionally, consent obtained through fraud or duress for Indian child adoptions can be withdrawn for two years after the adoption decree, compared to one year for non-Indian adoptions.
The ICWA allows for the procedural safeguards to be challenged even after an adoption is finalized. The majority opinion acknowledges that the need for stability in an adopted child's life requires determining their status as either an Indian or non-Indian child based on the time of the court's approval of the relinquishment petition and the termination of parental rights.
The majority opinion suggests that the adoption practices endorsed compromise the stability of adopted Indian children and violate regulations meant to safeguard Indian communities. Key individuals involved, including Mary Struck from Hope Services and Charles Bertiaux, the natural father, acknowledged that Tammy Crews indicated she had Indian ancestry but was uncertain of her tribal affiliation. Struck, failing to pursue further inquiry into Crews' tribal links, wrongly concluded that the Indian Child Welfare Act (ICWA) did not apply.
Regulatory requirements mandated that an adoption agency, in cases involving non-enrolled Indian children, compile a "family ancestry chart" to clarify the child's eligibility for tribal enrollment. Since B. met the criteria of being eligible for enrollment, Hope Services was obligated to investigate further, which could have easily revealed Crews' connections to the Umatilla and Choctaw tribes through her father.
Furthermore, regulations required consultation with the Local Indian Child Welfare Advisory Committee and actions toward enrolling the child in his tribe during the planning phase, not just post-termination of parental rights. The majority's interpretation that these steps should only be taken after parental rights have been terminated is contested; the regulation explicitly necessitates these actions beforehand to ensure proper placement preferences are observed if the child's Indian status is confirmed. The majority's claim that early enrollment would infringe on parents' due process rights is challenged, as the regulations only mandate taking appropriate steps toward enrollment, not completing it when parents oppose such actions.
Hope Services did not take necessary actions to enroll the child in the Choctaw tribe or ascertain the biological parents' wishes, which impacted the legal proceedings. The majority opinion suggests that even if B. was eligible for tribal enrollment, it is speculative that Crews would have acted on it before her parental rights were terminated just two days after B.'s birth. However, this reasoning is criticized as flawed because if Hope Services had fulfilled its investigative obligations and initiated enrollment, the termination order would not have occurred on May 24, 1989. Compliance with the Indian Child Welfare Act (ICWA) and relevant state laws required confirmation of B.'s Indian status before processing the adoption. If B. was confirmed as an Indian child, Hope Services could have legally processed the adoption by waiting ten days post-birth to obtain parental consent. Crews expressed her desire to regain custody just eight days after B.'s birth, which indicates that if Hope Services had followed the regulations, her rights would not have been terminated prematurely. The trial court also failed in its duty to inquire about B.'s Indian status, as mandated by BIA guidelines, which require verification from the Bureau of Indian Affairs or the child's tribe when there is reason to believe the child is Indian.
The court must verify a child's potential Indian status with the child's tribe or the Bureau of Indian Affairs (BIA) if any information suggests the child may be an Indian child. A mother's claim of having Indian blood, albeit vague, constitutes sufficient suggestion for inquiry. The majority's conclusion that BIA guidelines apply solely to involuntary terminations contradicts the guidelines, which include provisions for voluntary placements, especially when a parent's anonymity is desired. The court's duty to investigate applies equally to both types of terminations under the Indian Child Welfare Act (ICWA).
The majority's assertion that no positive leads from Crews' statements exempted Hope Services and the court from inquiry violates relevant regulations, ignoring the historical context of Indian family histories being obscured due to past injustices. Adoption agencies and courts are mandated to investigate the Indian status of children to avoid future legal challenges that disrupt both adoptive and biological families. The Vermont Supreme Court supports thorough investigations to ensure stability in juvenile proceedings.
The majority incorrectly determined that the child was not an "Indian child" prior to a specific date; such determinations should involve notifying the relevant tribe, which has the authority to assert membership status. The Choctaw Nation has stated that the child has been a member since birth, reinforcing the need for proper notification and involvement in the proceedings.
The Nation is defined as comprising all Choctaw Indians listed on its final rolls and their lineal descendants. Tammy Crews and B. are recognized as members since birth due to their descent from Fannie Wolf, an original enrollee. Membership does not require formal enrollment, and a Certificate of Degree of Indian Blood serves as evidence of membership. BIA guidelines acknowledge that not all tribes require enrollment for membership, and while enrollment is a common method of establishing Indian status, it is not the only one.
The majority opinion erroneously dismisses the possibility of membership without formal enrollment, citing 25 U.S.C. 1903, which distinguishes between a member and one eligible for membership. This distinction applies to tribes with formal enrollment requirements but is irrelevant to the Choctaw tribe. The authority to determine membership rests solely with the tribe, not with the courts.
Brenda Hampton's affidavit, which suggests a distinction between eligibility and admission based on paperwork processing, does not supersede the Choctaw Nation's Constitution, which defines membership based solely on lineal descent from original enrollees. Upon notice of relinquishment proceedings regarding B., it was the tribe's responsibility to determine membership status. The trial court's failure to notify the tribe, as mandated by RCW 26.33.090(2), should lead to a remand for proper notification rather than an appellate determination of membership.
In conclusion, had the trial court and Hope Services fulfilled their obligations to notify the tribe, the situation under the ICWA could have been recognized from the outset, potentially preventing the current complications in B.'s life. The majority’s ruling allows for the neglect of regulations intended to prevent such issues.
Indian status determination can be complicated due to many individuals' lack of knowledge regarding their family histories. The majority's decision erroneously imposes a deadline for establishing a child's Indian status that is not stipulated in the Indian Child Welfare Act (ICWA). According to the ICWA, an "Indian child" is defined as a member of a tribe or a biological child of a member who is eligible for membership, without any indication of a cutoff date corresponding to parental rights termination. The majority's ruling contravenes established principles of ICWA interpretation by creating an unwarranted judicial exception to the Act, which was designed to protect Indian children from state court biases. The ICWA is a remedial statute that should be liberally construed, favoring the rights it aims to safeguard. The majority's interpretation undermines the ICWA’s purpose by restricting rights based on an artificial timeline, disregarding the Act's intent to protect children eligible for tribal membership, even if they lack current tribal ties. The majority's rationale for establishing a cutoff at parental rights termination to provide stability for the adopted child overlooks the ICWA’s provisions allowing parents to withdraw consent until the final adoption decree is entered. Congress's intent, as expressed in the ICWA, should take precedence over the majority's desire for early finality in adoption placements. The dissenting opinion calls for reversing the summary judgment for respondents and granting it for the appellant.
Crews and Struck may have conspired to circumvent the Indian Child Welfare Act (ICWA) to expedite adoption, avoiding delays related to Crews' tribal affiliation. The U.S. Supreme Court emphasizes that an Indian child's parent cannot evade the ICWA's applicability due to tribal interests. Mentioning Indian ancestry only on the maternal side does not render compliance with ICWA futile, as the regulation requires a family ancestry chart that includes all family branches. The ICWA mandates preferential placement for Indian children, prioritizing extended family, tribal-approved foster homes, and institutions meeting the child's needs. While Bureau of Indian Affairs (BIA) guidelines are nonbinding, they have been referenced by courts, including Washington's Division Two. Federal law requires tribal notice in involuntary termination cases, while Washington state law extends this requirement to voluntary relinquishment proceedings. The majority opinion inadequately addresses whether the ICWA applies when a child is recognized as an "Indian child" at the time of termination, particularly in cases where the non-Indian mother lacks information about the father's Indian status. The ICWA allows parents to withdraw consent for termination or adoption of an Indian child at any time before a final decree, a provision mirrored in Washington state law.
