as: 525 N.E.2d 298)
Court of Indiana.
the Matter of ADOPTION OF T.R.M., An Indian Child.
(Natural Mother), Appellant,
and E.M.L. (Adoptive Parents), Appellees.
Denied Sept. 28, 1988.
Child Welfare Act was inapplicable in case where Indian child
was abandoned to adoptive non-Indian mother at essentially earliest practical
moment after childbirth and initial hospital care, and for child's
entire life of seven years, she lived with non-Indian adoptive
parents in non-Indian culture; subsequent proceeding in state court through
which child was adopted did not constitute "breakup of Indian
family" and thus, purpose and intent of Congress in enacting
Act could not be achieved through application of Act. Indian
Child Welfare Act of 1978, §§ 2-403,
25 U.S.C.A. §§ 1901-1963.
tribal court has exclusive jurisdiction under Indian Child Welfare Act
in event of either residence or domicile of child within
reservation or tribal court wardship of Indian child; where Indian
child is not domiciled or residing within reservation, Act provides
for tribal jurisdiction unless state court finds good cause to
contrary. Indian Child Welfare Act of 1978, § 101(a,
b), 25 U.S.C.A. § 1911(a,
is place where person has his true, fixed, permanent home
and principal establishment, and to which place he has, whenever
he is absent, intention of returning.
is of three kinds; domicile of origin or birth, domicile
by choice, and
domicile by operation of law.
residence of family follows that of father; however, when by
agreement or justifiable reasons, parents of child are living apart
and have separate domiciles, residence or domicile of child would
follow residence of parent with whom child is living.
court did not have exclusive jurisdiction over adoption of Indian
child based on child's domicile, under the Indian Child Welfare
Act; biological Indian mother and child were domiciled off reservation,
and thus, any contact tribe could assert was with mother
rather than with child. Indian Child Welfare Act of 1978,
25 U.S.C.A. § 1911(a).
Indian Child Welfare Act, tribal court may exercise subsequent exclusive
jurisdiction through wardship orders notwithstanding state court proceeding when domicile
or residence of child has changed after initial tribal court
order of wardship. Indian Child Welfare Act of 1978, § 101(a),
25 U.S.C.A. § 1911(a).
Indian Child Welfare Act, state court must give full faith
and credit to public acts, records and judicial proceedings of
Indian tribe to same extent that state court gives full
faith and credit to those of any other entity; however,
statute does not require state court to give absolute deference
to tribal court order regardless of circumstances. Indian Child Welfare
Act of 1978, § 101(d),
25 U.S.C.A. § 1911(d).
foreign judgments are open to collateral attack of lack of
jurisdiction. U.S.C.A. Const. Art. 4, § 1;
Trial Procedure Rule 12(B)(1).
court lacked jurisdiction to enter wardship order over Indian child
one day before filing of adoption petition by non-Indian couple
in state court, under Indian Child Welfare Act; tribal court
did not pursue its right to assert exclusive jurisdiction during
habeas corpus proceeding previously brought by Indian biological mother and
tribe. Indian Child Welfare Act of 1978, § 101(a,
d), 25 U.S.C.A. § 1911(a,
issued by Bureau of Indian Affairs of the Department of
Interior in interpreting
Indian Child Welfare Act are helpful but neither controlling nor
binding upon state proceedings. Indian Child Welfare Act of 1978,
b), 25 U.S.C.A. § 1911(a,
determining whether state court has "good cause" for denying transfer
of jurisdiction to tribal court under Indian Child Welfare Act,
best interest of child must be considered. Indian Child Welfare
Act of 1978, § 101(b),
25 U.S.C.A. § 1911(b).
court had good cause for denying transfer of adoption proceedings
to tribal court under Indian Child Welfare Act on basis
of best interests of child; biological Indian mother had long
history of drug and alcohol abuse, had been jailed approximately
15 times, was fully aware of legal implications of
placing child for adoption, and child resided with non-Indian adoptive
parents since first week of her life. Indian Child Welfare
Act of 1978, § 101(b),
25 U.S.C.A. § 1911(b).
adoptive parents did not improperly remove Indian child from reservation
and retain child in violation of Indian Child Welfare Act;
when adoptive mother brought child to adoptive home, she had
biological Indian mother's consent, in habeas corpus petition filed by
Indian mother nine months after child was removed, she failed
to assert any legal right to child, and up until
time adoption was granted, adoptive parents had rightful custody of
child and were not retaining child improperly pursuant to custody
order entered in state court which resulted from mother's habeas
corpus proceeding. Indian Child Welfare Act of 1978, § 110,
25 U.S.C.A. § 1920.
court's alleged continuing jurisdiction over biological Indian mother's marriage did
not permit tribal court to enter order of wardship at
any time pursuant to Indian Child Welfare Act over Indian
child; birth of child occurred seven months after Indian mother
was divorced, but decree made no mention of unborn child,
there was no judicial finding that former husband was child's
biological father and mother testified that contrary was true, and
Indian biological mother did not follow normal tribal procedure in
seeking modification of divorce decree regarding custody of child. Indian
Child Welfare Act of 1978, § 101(a),
25 U.S.C.A. § 1911(a).
of Indian Child Welfare Act was fulfilled through actions of
adoptive non-Indian parents to adopt and raise Indian child, which
could be seen as active effort to reunite preexisting Indian
family unit consisting of biological Indian mother, her former husband,
and their three children; Indian mother was considering adoption in
lieu of abortion in attempt to prevent breakup of existing
family when she contacted adoptive parents given fact that former
husband with whom she was attempting reconciliation was not father
of fetus she was carrying when she contacted adoptive parents.
Indian Child Welfare Act of 1978, § 102(d),
25 U.S.C.A. § 1912(d).
purposes of adoption decree which permitted non-Indian adoptive parents to
adopt Indian child, evidence was sufficient to establish that biological
Indian mother had drug and alcohol problems and that efforts
to rehabilitate were unsuccessful; biological mother abused marijuana, LSD, and
alcohol, had enrolled in chemical dependency treatment program, and had
gotten drunk or "tuned-up" on at least one occasion after
she filed habeas corpus petition to regain custody of Indian
supported finding by trial court that removal of Indian child
adoptive parents from current home environment and placement with biological
Indian mother would result in serious emotional harm to child;
experts testified that biological mother's past record of behavioral conduct
would likely result in serious emotional and physical harm to
was properly permitted to answer hypothetical question in adoption proceeding
in state court involving Indian child's welfare if returned to biological
mother from adoptive parents over biological Indian mother's timely objection,
despite some misstatements such as, for example, that while Indian mother
admitted to having been in jail 15 times, hypothetical used figure of
19 times; no jury was involved, and it is presumed that trial judge
was able to determine whether evidence presented sufficient facts to support
hypothetical question and its answer.
placement in state court of Indian child with non-Indian parents did not
violate placement provisions of Indian Child Welfare Act which provided
that tribal placement preference must be followed; statutory deference
to be accorded tribe's order of preference applied only in absence of
good cause to contrary, and given fact that evidence clearly demonstrated
good cause, adoptive placement preferences were not binding. Indian
Child Welfare Act of 1978, § 105, 25 U.S.C.A. § 1915.
was sufficient to support trial court's findings of fact in adoption proceeding
through which Indian child was placed with non-Indian parents with respect
to child's paternity; record contained testimony of numerous occasions
in which biological Indian mother stated that her former husband was not
father of child, mother's petition for divorce was filed ten months before
divorce was granted, and divorce decree was devoid of any mention of pregnancy
or paternity of fetus.
was sufficient under both Indiana and South Dakota law to establish that
biological Indian mother abandoned Indian child; mother relinquished
all parental responsibility and physical control of child to adoptive
mother. IC 31-3-1-6(g) (1982 Ed.).
court did not violate biological Indian mother's due process rights by
failing to appoint counsel in appeal of habeas corpus action in which
biological Indian mother sought to regain custody of Indian child who
had been placed with non-Indian adoptive parents with her prior consent;
biological mother had been represented by counsel during habeas
proceedings, trial court found
that indigency had not been proven, and there was nothing filed to make
trial court aware that biological mother's attorney would not fulfill
continuing duty to represent her client's interests in habeas proceedings.
statute which requires prior written agency or welfare department approval
prior to placement of child in proposed adoptive home applied only to
preadoption placement, but did not constitute jurisdictional prerequisite
to granting of final adoption. IC 31-3-1-3, 31-3-1-8(d) (1982 Ed.).
court's consideration of county welfare department report as evidence
proceeding involving Indian child and non-Indian adoptive parents did
not constitute harmful error; trial court's reference to fact of
approval by agency of adoptive parent's home merely demonstrated satisfaction
of procedural requirement of code requiring filing of written report by
specified social service agency. IC 31-3-1-4 (1982 Ed.).
court was not deprived of subject matter jurisdiction over adoption proceeding
involving Indian child and non-Indian adoptive parents by Uniform Child
Custody Jurisdiction Act; neither reservation nor tribal court was
within ambit of Act's definition of "state" and further, facts
and records indicated that Indiana was "home state" of child
under provisions of Act given fact that parents did not wrongfully take
child from South Dakota, which was state where Indian child was born,
or improperly retain possession after temporary relinquishment of physical
custody. IC 31-1-11.6-1 et seq., 31-1-11.6-2(10), 31-3-1-3, 31-3-1-4,
31-3-1-6 (1982 Ed.).
Joanne Tapocsi, Valparaiso, Barry Levine, Traverse City, for appellant.
Hugo E. Martz, Guardian Ad Litem, Steven Langer, Valparaiso, for appellees.
ON CIVIL PETITION TO TRANSFER
The power of state courts to
conduct adoption proceedings involving children of Indian ancestry may
be subject to significant limitations under the Indian Child Welfare Act
("ICWA"), 25 U.S.C. §§ 1901-1963 (1982). The
central issue in this case is whether a state adoption proceeding was
proper and valid under the ICWA.
T.R.M. ("the child")
was born on June 14, 1981, in Hot Springs, South Dakota. Her biological
mother is J.Q. Her paternity has not been established. In
the summer of 1974, J.Q. met D.R.L. and E.M.L. ("adoptive parents")
when the adoptive parents began travelling to the Pine Ridge Reservation,
Shannon County, South Dakota, where the Oglala Sioux Indian Tribe ("Tribe")
is located. The adoptive parents went to the reservation to
visit a mission sponsored by their church organization. During
the ensuing years, J.Q. and the adoptive parents became good friends.
On two separate occasions J.Q. asked the adoptive parents
if they would take her children and raise them if anything ever happened
to her. The adoptive parents agreed to do so. During
this time, the adoptive parents met and became friends with J.Q.'s since-divorced
husband, G.C.M. ("the former husband").
In April, 1981, J.Q. telephoned
the adoptive parents at their residence in Porter County, Indiana, requesting
that they keep *302
their prior promise and adopt her unborn child. J.Q. called
again in May, 1981, to confirm the plans for the adoption. The
adoptive parents agreed to adopt the child.
The child was born out of wedlock
on June 14, 1981, not on the reservation, but in a hospital at Hot Springs,
South Dakota. On June 19, 1981, J.Q. telephoned the adoptive
parents informing them that the child had been born and requested that
they come and get the baby. When the adoptive mother arrived
in Hot Springs the following day, she went to see J.Q. at a motel where
J.Q. lived with her other children. J.Q. asked the adoptive
mother to take the child with her. The adoptive mother agreed,
accepted the infant child, and took the child with her. The
former husband was present and did not object to the transfer. On
the next day, June 21, 1981, J.Q. signed a consent form to the adoption.
The adoptive mother returned to Porter County, Indiana, with
the child, who was then 7 days old. The child, now age seven,
has resided with the adoptive parents in Porter County, Indiana, ever
Other than two telephone calls
and two letters from J.Q. to the adoptive parents within two weeks after
the adoptive mother returned to Indiana with the child, J.Q. made no further
contact with either the child or the adoptive parents until she filed
a habeas corpus action in the Porter Circuit Court in April
of 1982. The Tribe also filed a similar action claiming jurisdiction
in the Oglala Sioux Tribal Court. The trial court heard evidence
on the petitions for habeas corpus relief on September 24, 1982, and on
October 21, 1982, dismissed the Tribe's petition for failure to appear
and present evidence at the hearing. The trial court also
denied J.Q.'s petition and granted temporary custody of the child to the
On September 22, 1982, the adoptive
parents filed a petition for adoption of the child with the trial court.
On November 29, 1982, the Indian tribal court, through the
Indian Child Welfare Advocate, filed a motion to transfer the case to
the Indian tribal court and attached a copy of an order of wardship of
the child which had been entered by the Indian tribal court on September
21, 1982, the day prior to the adoptive parents' filing of the adoption
petition in the trial court. On September 29, 1983, and October
19, 1983, the Porter Circuit Court heard evidence concerning the jurisdictional
matter and the adoption proceeding, and on November 28, 1983, granted
On appeal by the natural mother,
the Court of Appeals reversed on grounds that exclusive jurisdiction had
vested in the Indian tribal court pursuant to the order of wardship entered
on September 21, 1982. Adoption
of T.R.M. v. D.R.L.
(1986), Ind.App., 489 N.E.2d 156. We hereby grant transfer
and affirm the trial court.
Since the principal thrust of
the argument of appellant J.Q. and the Tribe is that
the Porter Circuit Court adoption proceedings and judgment are contrary
to the ICWA, the public policy goals of Congress in enacting the ICWA
are of particular importance. In this regard, we find particularly
helpful the following observations of the Oklahoma Supreme Court in In
re Adoption of Baby Boy D
(1985), Okla., 742 P.2d 1059, 1062-63, reh'g
denied (1987), cert.
denied, (1988), 484
U.S. 1072, 108 S.Ct. 1042, 98 L.Ed.2d 1005:
Indian Child Welfare Act (ICWA) is structured around the concern "that
an alarmingly high percentage of Indian families are broken up by the
removal, often unwarranted, of their children from them by nontribal public
and private agencies" and in non-Indian homes and institutions. [25
U.S.C. § 1901(4) ] Congress has declared the policy of this
Nation in passing the ICWA as follows:
[T]o protect the best interest of Indian children and to promote the stability
and security of Indian tribes and families by the establishment of minimum
federal standards for the removal of Indian children from their families
and the placement of such children in foster or adoptive homes which will
reflect the unique values of Indian culture...." [25 U.S.C.
central thrust and concern of the ICWA is, therefore, "the establishment
of minimum federal standards for the removal of Indian children from their
provisions of the act support this conclusion.
alarmingly high percentage of Indian families are broken up by the removal,
often unwarranted, of their children from them...."
1911(a) provides exclusive jurisdiction in the Indian tribe:
any child custody proceeding involving an Indian child who resides or
is domiciled within the reservation...."
1912 addresses pending court proceedings. Subsection (d) requires:
party seeking to effect a foster care placement of, or termination of
parental rights to, an Indian child under State law shall satisfy the
court that active efforts have been made to provide remedial services
and rehabilitative programs designed to prevent
the breakup of the Indian family
and that these efforts have proved unsuccessful.["] (emphasis
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." (emphasis added).
termination of parental rights may be ordered in such proceeding in the
absence of a determination, supported by evidence beyond a reasonable
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
physical damage to the child.["] (emphasis added).
Indian Child Welfare Act is applicable, therefore, when we are confronted
with the removal of Indian children from their families. The
purpose of the act is to promote the best interest of Indian children
through promoting the stability and security of Indian tribes and families
by the establishment of minimum federal standards for the removal of Indian
children from their families. The act is applicable when you
have Indian children being removed from their existing Indian environment.
[emphasis in original; footnotes deleted]
the case before us, the child's biological ancestry is Indian. However,
except for the first five days after birth, her entire life of seven years
to date has been spent with her non-Indian adoptive parents in a non-Indian
culture. While the purpose of the ICWA is to protect Indian
children from improper removal from their existing Indian family units,
such purpose cannot be served in the present case before this Court. From
the unique facts of this case, where the child was abandoned to the adoptive
mother essentially at the earliest practical moment after childbirth and
initial hospital care, we cannot discern how the subsequent adoption proceeding
constituted a "breakup of the Indian family." We
therefore hold that, separate from and independent of our
consideration of the merits of appellant's specific issues, the ICWA should
not be applied to the present case in which the purpose and intent of
Congress cannot be achieved thereby.
However, notwithstanding our
decision that the ICWA should not apply to the adoption proceeding in
the instant case, we shall proceed to independently discuss the issues
raised, as a separate and independent basis for our decision.
The Tenth Amendment to the United States Constitution provides: "The
powers not delegated to the United States by the Constitution, nor prohibited
by it to the States, are reserved to the States respectively or to the
people." Notwithstanding Justice Brennan's recent comment
in South Carolina v.
Baker (1988), 485 U.S.
505, ----, 108 S.Ct. 1355, 1360, 99 L.Ed.2d 592, 602 ("The Tenth
Amendment limits on Congress' authority ... are structural, not substantive--i.e.,
th[e] States must find their protection from congressional regulation
through the national political process, not through judicially defined
spheres of unregulable state activity.") and Justice Stone's comment
in United States v.
Darby (1941), 312 U.S.
100, 124, 61 S.Ct. 451, 462, 85 L.Ed. 609, 622 ("The amendment states
but a truism that all is retained which has not been surrendered."),
we feel the Tenth Amendment does and should continue to
retain some real vitality. As did Justice O'Connor in her
dissent to South Carolina
v. Baker, 485 U.S.
at ----, 108 S.Ct. at 1372, 99 L.Ed.2d at 616, we agree with Professor
Tribe's observation: "Of course, no one expects Congress to
obliterate the states, at least in one fell swoop. If there
is any danger, it lies in the tyranny of small decisions--in the prospect
that Congress will nibble away at state sovereignty, bit by bit, until
someday essentially nothing is left but a gutted shell." L.Tribe,
Law 381 (2d ed. 1988).
Although we observe in the first sentence of our opinion that
"[t]he power of state courts to conduct adoption proceedings involving
children of Indian ancestry may be subject to significant limitations
under the [ICWA]," we are acutely aware that the Supreme Court has
not yet addressed the constitutionality of the ICWA under the Tenth Amendment
or general principles of federalism. In the legislative history
to the ICWA, there appears a letter to the committee chairmen from the
Department of Justice regarding constitutional questions surrounding the
ICWA. The letter provides in part:
third and more serious constitutional question is, we think, raised by
section 102 of the House draft. That section, taken together
with sections 103 and 104, deals generally with the handling of custody
proceedings involving Indian children by State courts. Section
102 establishes a fairly detailed set of procedures and substantive standards
State courts would be required to follow in adjudicating the placement
of an Indian child as defined by section 4(4) of the House draft.
we understand section 102, it would, for example, impose these detailed
procedures on a New York State court sitting in Manhattan where that court
was adjudicating the custody of an Indian child and even though the procedures
otherwise applicable in this State-court proceeding were constitutionally
sufficient. While we think that Congress might impose such
requirements on State courts exercising jurisdiction over reservation
Indians pursuant to Public Law 83-280, we are not convinced that Congress'
power to control the incidents of such litigation involving nonreservation
Indian children and parents pursuant to the Indian commerce clause [United
States Constitution Article 1, Section 8] is sufficient to override the
significant State interest in regulating the procedure to be followed
by its courts in exercising State jurisdiction over what is a traditionally
State matter. It seems to us that the Federal interest in
the off-reservation context is so attenuated that the 10th Amendment and
general principles of federalism preclude the wholesale invasion of State
power contemplated by section 102. See Hart, "The Relations
Between State and Federal Law," 54 Colum.L.Rev. 489, 508 (1954).
No. 95-1386, 95th Cong., 2d Sess. 39-40 (1978), reprinted
in 1978 U.S.Code Cong.
& Admin.News 7530, 7562-63. We deem it of no small significance,
as is seen in the later discussion of this opinion, that the child was
never domiciled on the reservation and that J.Q. was domiciled in Hot
Springs, South Dakota at the time of the child's birth.
because we decide in this case that the ICWA does not apply and that aside
from that conclusion J.Q.'s arguments are without merit, we shall not
concern ourselves further with questions of the ICWA's constitutionality.
The ICWA is facially implicated
because the parties have stipulated that J.Q. is an Indian, that the child
is an Indian child, and that the Tribe is the Indian child's tribe, all
as defined in § 1903 of the ICWA. Section 1911 of the ICWA provides:
Indian tribe shall have jurisdiction exclusive as to any State over any
child custody proceeding involving an Indian child who resides or is domiciled
within the reservation of such tribe, except where such jurisdiction is
otherwise vested in the State by existing Federal law. Where
an Indian child is a ward of a tribal court, the Indian tribe shall retain
exclusive jurisdiction, notwithstanding the residence or domicile of the
Transfer of proceedings; declination by tribal court
any State court proceeding for the foster care placement of, or termination
of parental rights to, an Indian child not domiciled or residing within
the reservation of the Indian child's tribe, the court, in the absence
of good cause to the contrary, shall transfer such proceeding to the jurisdiction
of the tribe, absent objection by either parent, upon the petition of
either parent or the Indian custodian or the Indian child's tribe: Provided,
That such transfer shall be subject to declination by the tribal court
of such tribe.
State court proceedings; intervention
any State court proceeding for the foster care placement of, or termination
of parental rights to, an Indian child, the Indian custodian of the child
and the Indian child's tribe shall have a right to intervene at any point
in the proceeding.
Full faith and credit to public acts, records, and judicial proceedings
of Indian tribes
United States, every State, every territory or possession of the United
States, and every Indian tribe shall give full faith and credit to the
public acts, records, and judicial proceedings of any Indian tribe applicable
to Indian child custody proceedings to the same extent that such entities
give full faith and credit to the public acts, records, and judicial proceedings
of any other entity.
The Indian tribal court is thus granted exclusive
jurisdiction under § 1911(a)
in the event of either: 1) residence or domicile of the child within
the reservation; or, 2) tribal court wardship of the child. Where
an Indian child is not domiciled or residing within the reservation, § 1911(b)
provides for tribal jurisdiction unless the state court finds good cause
to the contrary.
We first address the determination
of residency and domicile of the child within the framework of the detailed
findings of fact made by the trial court in the adoption order.
[FN2] This order also incorporated by reference certain findings
which it had previously made in the habeas corpus proceeding. These
combined findings included, inter
alia, the following:
We note that the ICWA does not expressly determine how domicile is to
be established. However, the guidelines propounded by the
Bureau of Indian Affairs of the Department of the Interior for implementing
the ICWA state that "definitions [of domicile] were not included
[in the ICWA or the guidelines] because these terms are well defined under
existing state law. There is no indication that these state law definitions
tend to undermine in any way the purposes of the Act." 44 Fed.Reg.
67,583, 67,585 (1979).
At the time of the "consent"
[J.Q.] was not residing on the Pine Ridge Reservation nor was she living
on the reservation at the time of [the child's] birth.
She was living off the reservation. She says [that]
had there been housing available, she would have lived on the reservation.
The Court does not find her to be credible in this regard
notwithstanding her statement that she always wanted to return to the
reservation. She had lived off the reservation for over two
years and in the states of Nebraska and Colorado. Domicile is a place
where a person has his true, fixed permanent home and to which place he
has, whenever absent, the intention of returning. This Court
finds that [J.Q.] did not have her true, fixed permanent home on the Pine
Ridge Reservation and had in the foreseeable future no intention of returning
to the reservation. Further, it is noted that in the consent
that [J.Q.] signed on June 21, 1981, she acknowledged that she was not
residing on the reservation. She was domiciled and a resident of Hot Springs,
* * *
the natural Indian parent of [the child] placed her in the complete and
total care, custody and control of [the adoptive parents] intending by
such action to voluntarily give up her rights in [the child] permanently
notwithstanding the invalidity of the adoption consent. Such
action on the part of the mother causes this Court to conclude such parental
abandonment constitutes an emancipation of the child under South Dakota
statutes. Such abandonment is further underscored by the lengthy
delay in the filing of [J.Q.'s] Petition for Writ of Habeas Corpus, which
was not filed until April 16,
1982, some ten months after the birth of the child. [J.Q.'s] reasons
that Court proceedings were not instituted sooner are not substantiated
by the evidence. * * *
The findings of fact of the trial court are conclusive on questions
of credibility of witnesses. It is not our function here to
re-weigh the evidence. In
re Adoption of Jackson
(1972), 257 Ind. 588, 277 N.E.2d 162.
means the place where a person has his true, fixed, permanent home, and
principal establishment, and to which place he has, whenever he is absent,
the intention of returning. State
Election Bd. v. Bayh
(1988), Ind., 521 N.E.2d 1313; Croop
v. Walton (1927), 199
Ind. 262, 157 N.E. 275. Domicile is of three kinds: domicile
of origin or birth, domicile by choice (which has for its true basis or
foundation the intention of the person), and domicile by operation of
general rule in Indiana is that the residence of a family follows that
of the father. However, when by agreement or for justifiable
reasons the parents of a child are living apart and have separate domiciles,
the residence or domicile of the child would follow the residence of the
parent with whom the child is living. In
re Marriage of Rinderknecht
(1977), 174 Ind.App. 382, 367 N.E.2d 1128.
record supports the trial court's findings that J.Q., and consequently
the child, were domiciled in Hot Springs, South Dakota, and that the
child was never domiciled on the reservation. Any contact
the Tribe could assert was with the mother and not the child. See
In re J.R.H. (1984),
Iowa, 358 N.W.2d 311. Therefore, the tribal court could not
have exercised exclusive jurisdiction based on domicile pursuant to § 1911(a).
We must next determine whether
the Tribe had exclusive jurisdiction under § 1911(a), notwithstanding
the lack of tribal residence and domicile, by reason of an order of wardship
by the tribal court. Acting on a petition filed by J.Q. in
August of 1981, the tribal court entered an order of temporary custody
of the child in September 1982. This order came over a year
after the child was born and over 5 months after the Tribe and J.Q. filed
the habeas corpus petitions.
The wardship order was entered
ostensibly pursuant to § 1911(a). We find that § 1911(a)
can pertain only to such wardship orders of the tribal court which are
entered while the child is residing or domiciled on the reservation. This
allows the tribal court to exercise subsequent exclusive jurisdiction
notwithstanding a state court proceeding when the domicile or residence
of the child has changed after the initial tribal court order of wardship.
The tribal court could not be empowered to effectuate the
status of a child as a "ward of the court" relying upon § 1911(a)
where the child was never domiciled on the reservation, and was not residing
on the reservation at the time the tribal court exercised jurisdiction
and entered the wardship order.
Section 1911(d) requires that
the state court give full faith and credit to the public acts, records
and judicial proceedings of the Indian tribe to the same extent that the
state court gives full faith and credit to those of any other entity.
The statute does not require the state court to give absolute
deference to a tribal court order regardless of the circumstances. Under
Indiana law all foreign judgments are open to collateral attack for lack
of jurisdiction. United States Constitution Article 4, Section 1;
Trial Rule 12(B)(1); Ulrey
v. Ulrey (1952), 231
Ind. 63, 106 N.E.2d 793.
Moreover, we find the Tribe has
waived its right to claim exclusive jurisdiction under § 1911(a).
When the trial court entered its order under the habeas corpus
action, it was unaware that the tribal court had purported to enter an
order of wardship regarding the child. We agree with the analysis
of the Court of Appeals in Lee
v. DeShaney (1983),
Ind.App., 457 N.E.2d 604, 607 n. 7:
issue of finality is determined by the law of the state which rendered
the order, but, if the law of such state is not brought to the attention
of the court[,] the court will not institute inquiries on its own.
The Tribe first asserted its
order of wardship as its jurisdictional basis in the adoption proceeding
contending that the wardship order entered one day before
the filing of adoption petition prevented jurisdiction from vesting in
the state court. The tribal court did not pursue its right
to assert exclusive jurisdiction under §§ 1911(a) and (d)
during the habeas corpus proceeding, an appropriate civil proceeding to
question the custody of a child. The doctrine of res
judicata applies to
habeas corpus proceedings as to issues of law and *307
fact necessarily involved in that result. Although the tribal court thus
waived any right which may have existed to claim exclusive jurisdiction
under § 1911(a) by reason of the purported wardship order, it
was not precluded from asserting § 1911(b) to further its interests
in the adoption proceeding.
We thus find that the tribal
court not only lacked jurisdiction to enter the wardship order, but also
that it is bound by the adverse adjudication of its petition for habeas
corpus. We therefore determine that § 1911(a) does
not provide a basis for the vesting of exclusive jurisdiction in the tribal
the extent that the ICWA may apply, this case falls under § 1911(b)
jurisdictional grounds, and we next consider the proper standard for determining
"good cause" for denying transfer of jurisdiction to the tribal
court. The state is required by § 1911(b) to transfer
such proceedings to the jurisdiction of the Tribe "absent good cause
to the contrary." If the state court does not find an
absence of good cause to the contrary, transfer is not required. The
statute does not define "good cause" for purposes of § 1911(b).
However, the Bureau of Indian Affairs of the Department of
the Interior, in interpreting the Act, explains good cause in 44 Fed.Reg.
67,583, 67,591 (1979) as follows:
Good cause not to transfer the proceeding exists if the Indian child's
tribe does not have a tribal court as defined by the Act to which the
case can be transferred.
Good cause not to transfer the proceeding may exist if any of the following
The proceeding was at an advanced stage when the petition to transfer
was received and the petitioner did not file the petition promptly after
receiving notice of the hearing.
The Indian child is over twelve years of age and objects to the transfer.
The evidence necessary to decide the case could not be adequately presented
in the tribal court without undue hardship to the parties or the witnesses.
The parents of a child over five years of age are not available and the
child has had little or no contact with the child's tribe or members of
the child's tribe.
Socio-economic conditions and the perceived adequacy of tribal or Bureau
of Indian Affairs social services or judicial systems may not be considered
determination that good cause exists.
The burden of establishing good cause to the contrary shall be on the
party opposing the transfer.
These departmental guidelines are helpful but neither controlling
nor binding upon state proceedings.
[FN3] Cf. Batterton
v. Francis (1977),
432 U.S. 416, 424, 97 S.Ct. 2399, 2405, 53 L.Ed2d 448, 456 ("Ordinarily,
administrative interpretations of statutory terms are given important
but not controlling significance."). These guidelines
have been applied by state courts in deciding not to transfer jurisdiction
to the tribal courts under § 1911(b). See,
e.g., In re J.R.H.,
358 N.W.2d at 317 ("In determining good cause, we may consider the
circumstances when the 'evidence necessary to decide the case could not
be adequately presented in the tribal court without undue hardship of
the parties or the witnesses.' ").
This fact is conceded by the Bureau of Indian Affairs of the Department
of the Interior in the introduction to the guidelines for interpretation
of the ICWA:
the rulemaking procedures of the Administrative Procedure Act have been
followed in developing these guidelines, they are not published as regulations
because they are not intended to have binding legislative effect. ...
Primary responsibility for interpreting ... language used in the
[ICWA, other than that delegated expressly to the Secretary of the Interior,]
... rests with the courts that decide Indian child custody cases."
Fed.Reg. 67,583, 67,584 (1979).
Section 1902 of the ICWA provides
in part "that it is the policy of this Nation to protect the best
interests of Indian children...." The Montana Supreme Court,
while considering the above-mentioned guidelines in determining the issue
of good cause, has also considered the "best interests *308
of the child," and has concluded that transfer may be defeated by
a "clear and convincing showing" by the State. In
re M.E.M. (1981), 195
Mont. 329, 336, 635 P.2d 1313, 1317. We agree that the best
interests of the child are a valid consideration in determining the issue
of good cause under § 1911(b).
The adoption trial court made
the following finding of fact:
There was good cause not to transfer this proceedings [sic] to the
tribal court inasmuch as the evidence necessary to decide this case could
not have been adequately presented in tribal court without undue hardship
to the parties and the witnesses."
The trial court also found that J.Q. had abandoned the child causing
the parental authority to cease, and that it was in the "best interests
of the child" to grant the adoption. We apply an abuse
of discretion standard to the trial
court's findings, and will not reweigh the evidence. In
re Adoption of Jackson, supra.
The facts favorable to the judgment
of the adoption trial court are plentiful. J.Q. had a long
history of drug and alcohol abuse. Her parenting record was
not good. She had also been divorced from the same man twice
for reasons relating to his alcohol use and physical abuse to her, and
she intended to remarry him. She had been placed in jail on
approximately fifteen occasions and had attempted to commit suicide at
least four times, the most recent being in 1981. Motivated
by a desire to remarry a former husband, J.Q. sought to remedy what she
perceived as a stumbling block to the reconciliation, her pregnancy by
another. She thus contacted the adoptive parents requesting
they keep a prior promise to adopt her yet unborn child. Being
fully aware of the non-Indian culture consequences of adoption, and having
previously given up another child to adoption, J.Q. acknowledged in several
conversations with the adoptive parents prior to the adoption that she
fully understood the adoption would preclude her from ever exercising
any parental rights to the child. She then voluntarily and
willingly relinquished her rights in the child. Testimony by a psychologist
and child protective child service worker for the county indicated that
beyond a reasonable doubt, the custody of the child by J.Q. would likely
result in serious emotional and physical harm to the child.
The child has resided in Indiana
since the first week of her life. To now
sever and dislodge the child from the family and culture she has known
during all of her seven years of life cannot be anything except devastating
to the best interests of the child. The purpose of the ICWA,
to protect the interests of the Indian family, is patently clear. However,
a paramount interest is the protection of the best interests of the child.
25 U.S.C. § 1902. See
also In re Maricopa County Juvenile Action No. A-25525
(1983), Ariz.Ct.App., 136 Ariz. 528, 667 P.2d 228.
The adoption trial court not
only found "good cause to the contrary" for denying transfer
to the Tribe, but also found that "in the best interests of the child"
transfer should be denied. The trial court properly considered
the ICWA, and in this case, the spirit of the ICWA has been fulfilled.
The concurrent state jurisdiction was properly exercised.
J.Q. and the tribal court assert
three other grounds for the vesting of exclusive jurisdiction in the tribal
court which we find unpersuasive for the following reasons.
first argues that the adoptive parents improperly removed the child from
the reservation and improperly retained custody of the child in violation
of § 1920 of the ICWA:
any petitioner in an Indian child custody proceeding before a State court
has improperly removed the child from custody of the parent or Indian
custodian or has improperly retained custody after a visit or other temporary
of custody, the court shall decline jurisdiction over such petition and
shall forthwith return the child to his parent or Indian custodian unless
returning the child to his parent or custodian would subject the child
to a substantial and *309
immediate danger or threat of such danger.
When the adoptive mother returned
with the child to Indiana, she not only had J.Q.'s consent but J.Q. had
relinquished and abandoned all care, custody and control of the child
to the adoptive parents. Two weeks after the child resided
in Indiana with the adoptive parents, J.Q. purported to revoke her consent
and requested the child be returned, but J.Q. did not make further contact
with the adoptive parents until she filed her habeas corpus petition in
the state courts of Indiana some nine months later. She had
not asserted any legal right to the child nor pursued other efforts to
get the child back. The trial court exercised jurisdiction
during the habeas corpus proceeding and ordered temporary custody of the
child to the adoptive parents. Up to the time the adoption
was granted, the adoptive parents had rightful custody of the child and
were not retaining the child improperly. The adoptive parents
neither improperly removed the child to Indiana nor did they improperly
retain custody of the child as defined in § 1920 of the Act.
and the Tribe next assert lack of subject matter jurisdiction in the state
court based on the tribal court's continuing jurisdiction in the dissolution
of J.Q.'s marriage. They contend that such continuing
jurisdiction allows them to enter an order of wardship or modify the divorce
decree at any time which in turn gives rise to exclusive jurisdiction
under § 1911(a). We also find this argument to be
The divorce was granted by the
tribal court November 14, 1980. Birth of the child occurred
seven months later. However, the divorce decree made no mention
of the unborn child. Furthermore, there has never been a judicial
finding that the former husband is the biological father and J.Q. has
stated that the contrary is true. The tribal court judge testified
that the normal tribal procedure would be for the parents to seek a modification
of the divorce decree regarding the custody, support, and visitation rights
of the child. This was not done. Rather, J.Q. chose to file
a distinctly different petition seeking an assumption of wardship by the
tribal court. The divorce decree does not provide a basis
for arguing continuing jurisdiction over the child.
J.Q. also contends that the ICWA requires proof of remedial and rehabilitative
efforts to prevent the break-up of an Indian family by the party seeking
to terminate parental rights, 25 U.S.C. § 1912(d), and that
such proof is necessary before the adoption could be granted.
The trial court made the following
conclusion: "Any rehabilitative efforts or social services
to remedy (J.Q.) have been unsuccessful." In reviewing
this matter we look to the record to determine whether the trial court
abused its discretion in arriving at its finding. We will
not reweigh the evidence, nor replace
our views for those of the trial court. The following facts
support the trial court's finding.
In March, 1981, four months after
her divorce, J.Q. approached Diane Harmon, a registered nurse who was
the supervisor of the obstetrics ward at the Public Health Service, an
Indian hospital on the Pine Ridge Reservation. Mrs. Harmon
is also the wife of the pastor of the Weslyn Emergency Group Mission,
which is a licensed emergency crisis center located on the reservation.
J.Q. had become acquainted with Mrs. Harmon in the prior eight
years and had used the mission facilities on different occasions. J.Q.
informed Mrs. Harmon that she was five months pregnant and that she had
considered aborting the child because she was attempting a reconciliation
between herself, her former husband, and their three children, and that
the unborn child would prevent that reconciliation because the former
husband was not the biological father. Mrs. Harmon counselled
repeatedly against the abortion and then suggested adoption as an alternative.
J.Q. was thus considering adoption
in lieu of abortion of her unborn child in an effort to prevent the breakup
of her existing family when she contacted the adoptive parents. She
told the adoptive mother that the child was not her former husband's child,
with whom she was trying to reconcile, and that she did not want this
child to *310
grow up like one of her other four children who had a different father
and as a result would be insecure as a member of the family.
The actions of the adoptive parents to adopt and raise the
child can thus be seen as an active effort to reunite the pre-existing
Indian family unit consisting of J.Q., her former husband, and their three
children. The spirit and requirements of § 1912(d)
J.Q. further seeks reversal of the adoption decree by contending that
there was an absence of sufficient evidence to support the trial court's
findings that J.Q. has had drug and alcohol problems and that efforts
to remedy and rehabilitate have been unsuccessful.
The evidence most favorable to
the trial court's finding establishes that J.Q. had a history of drug
and alcohol abuse, that she admitted being a teenage alcoholic, that she
admitted she abused "acid" and marijuana starting in November
1979, for about a five month period, that she also abused alcohol during
the same five month period of time, that she voluntarily admitted herself
to a drug and alcohol rehabilitation program in Denver for several months
in 1980, and that she had gotten drunk or "tuned-up" on at least
one occasion after the habeas corpus hearing. A court on appeal
may not set aside the findings or judgment of the trial court unless clearly
erroneous, and due regard shall be given to the opportunity of the trial
court to judge the credibility of the witnesses. T.R. 52(A)
The record supports the trial court's finding.
In her next contention, J.Q.
argues that the trial court failed to properly apply
the standards of the ICWA in determining the best interests of the child.
Section 1912(f) of the ICWA provides:
termination of parental rights may be ordered in such proceeding in the
absence of a determination, supported by evidence beyond a reasonable
doubt, 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.
J.Q. claims that the trial court
did not require proof beyond a reasonable doubt that the return of the
child would result in serious emotional or physical harm to the child,
but rather that the trial court applied a much lesser standard by finding
that the adoptive parents would provide a stable and consistent environment
and that removal from them at this time would be traumatic and cause serious
emotional harm to the child. The trial court determined:
... that since the placement of [the child] with [the adoptive parents],
[J.Q.] has had in no way any contact with the child, meaningful communication,
or in any way supported the child, that [J.Q.] has admitted to having
various personal problems including being twice divorced from [the putative
father] who is currently in jail, that she has had drug and alcohol problems,
suicidal tendencies and that her four older children have been with her
off and on during such personal problems and at times she has lived in
a car and motels, and
that it was in the best interests of [the child] to remain with [the adoptive
* * *
The adoption of [the child] by [the adoptive parents] is in the best interests
of [the child] in that the [adoptive parents] will provide a stable and
consistent environment and that removal from them at this time would be
traumatic and cause serious emotional harm to [the child].
evidence, including testimony from qualified expert witnesses, supports
beyond a reasonable doubt the trial court's determination that removal
of the child from her current home environment and placement with J.Q.
would likely result in serious emotional harm to the child.
The trial court found that Dr.
John Harris, Larry Salloway, and Irene Yankauskas qualified as expert
witnesses. The three qualified experts testified that J.Q.'s
past record of behavioral conduct would likely continue and under such
continuing circumstances, J.Q.'s child-rearing capabilities *311
would be affected and would likely result in serious emotional or physical
harm to the child. The phrase "qualified expert witness"
is not defined in the ICWA, but legislative history reveals that it is
"meant to apply to expertise beyond the normal social worker qualifications."
H.R. No. 95- 1386, 95th Cong., 2d Sess. 22 (1978), reprinted
in 1978 U.S.Code Cong.
& Admin.News 7530, 7545. The Bureau of Indian Affairs
of the Department of the
Interior has also defined the phrase in 44 Fed.Reg. 67,583, 67,593 (1979)
Persons with the following characteristics are most likely to meet the
requirements for a qualified expert witness for purposes of Indian child
A member of the Indian child's tribe who is recognized by the tribal community
as knowledgeable in tribal customs as they pertain to family organization
and childrearing practices.
A lay expert witness having substantial experience in the delivery of
child and family services to Indians, and extensive knowledge of prevailing
social and cultural standards and childrearing practices within the Indian
A professional person having substantial education and experience in the
area of his or her specialty.
Dr. John Harris has a Ph.D. in
clinical and experimental psychology; has been a clinical psychologist
for 17 years; and a university professor for 13 years. Larry
Salloway is an enrolled member of the Rosebud Sioux Tribe, which borders
the Pine Ridge Reservation; he lived on the Pine Ridge Reservation
for a number of years and travels to Pine Ridge at least once a month;
he is employed as a Juvenile Judge of the Rosebud Sioux Tribe; and
he has served as a tribal attorney and a juvenile court counselor. Irene
Yankauskas is a social
worker with her Bachelor's degree; 58-60 hours of graduate work
of which 24-28 hours is in psychology and sociology; she has accumulated
all but six hours toward her masters degree in special education; and
she has been emplayed for the past 4 and 1/2 years by the Porter County
Welfare Department as a child protective service worker during which time
she has been involved in over a thousand cases involving the investigation
of child abuse and neglect. The record sufficiently supports the finding
that all three of these witnesses meet at least one of the three guidelines
as set out above for determining "qualified expert witnesses."
J.Q. claims that the trial court
improperly applied the standard "best interests of the child"
as required by the ICWA. The legislative history recognizes
that the "legal principle is vague, at best" and that "judges
too may find it difficult, in utilizing vague standards like 'best interests
of the child,' to avoid decisions resting on subjective values."
H.R. No. 95-1386, 95th Cong., 2d Sess. 19 (1978), reprinted
in 1978 U.S.Code Cong.
& Admin.News 7530, 7542. It is J.Q.'s contention that
the trial court failed to apply the presumption that the best interest
of the child is served by preventing removal from the Indian family and
culture and that the court improperly considered such items as poverty,
alcoholism, and parenting customs, all in violation of specific provisions
of the ICWA. 25 U.S.C. § 1915(d).
The ICWA, under § 1915(a),
requires the trial judge to give preference
of placement, absent good cause to the contrary, to members of the child's
extended family, other members of the Indian child's tribe, or other Indian
families. J.Q. claims that the trial court gave insufficient
weight to the mandate that Indian children should be raised in Indian
homes, pursuant to § 1915 (placement preference) and § 1902
(declaration of policy). The term "good cause" is
not defined for purposes of § 1915. Legislative
history states explicitly that the use of the term "good cause"
was designed to provide state courts with flexibility in determining the
disposition of a placement proceeding involving an Indian child. Primary
responsibility for interpreting the language of the statute rests with
the courts deciding the custody proceedings of Indian children. See
supra note 3. Hence,
we review this only for an abuse of discretion.
We observe that the record is silent as to any custodian other than J.Q.
who meet the criteria of § 1915, and who is willing to care
for the child. We find that the record amply supports the
trial court's finding that the "best interests of the child"
were best served by granting the adoption petition based not only on the
bonding which had occurred between the child and the adoptive parents,
but also on the serious emotional or physical harm which would likely
result if the child was returned to J.Q. The trial court did
not abuse its discretion. We find that the evidence demonstrates
beyond a reasonable doubt that transfer of custody to J.Q. would be likely
to result in serious
emotional or physical damage to the child.
Appellant J.Q. claims reversible
error resulted when the trial court permitted a witness, Dr. John Harris,
psychologist, to answer the following hypothetical question over J.Q.'s
Now Doctor, I want to ask you a question that is rather lengthy,
so I would like for you to listen rather carefully. Assume
that [J.Q.] is the natural mother of [the child], who [sic] you observed.
That [J.Q.] is approximately thirty-four years of age; that
she has had seven children; that she voluntarily gave up one of
her children for adoption in the early 1970's; that several other
of her children were in foster care while she was in drug treatment in
1980 for a period of at least several months; that she had been
abusing or was addicted to alcohol beginning at age fifteen or thereabouts,
and was addicted to drugs, acide [sic] and marijuana, in 1979; that
she was married to [her former husband] in 1971 and divorced from him
in 1972 and then remarried him in 1974 and divorced him again in 1980;
that [her former husband] was also addicted to alcohol; that
[her former husband] physically abused her throughout the course of their
two marriages, that sometimes in front of the children; that [her
former husband] has been in and out of jail and, in fact, is in prison
now serving a sentenced [sic] term for assaulting a police officer; that
[J.Q.] also was in jail at least
nineteen times, some while she had custody of her children, as recently
as 1980; that she tried to commit suicide on at least four occasions,
the last time being as late as 1981; that [J.Q.] has frequently
moved during the time that she has had her children in her care, at least
ten times in the past ten years, sometimes as often as every five or six
months; that she and three of her children lived in a car for at
least a week in late May and early June of 1981 when [J.Q.] was nearly
nine months pregnant with [the child]. Based on those facts, do
you have an opinion, Doctor, as to whether or not [J.Q.'s] custody of
[the child] on a continual basis in this type of environment would likely
cause [the child] to suffer serious emotional or physical damage?
Appellant argues that the hypothetical contained misstatements including,
for example, that while J.Q. said she used drugs, she never admitted being
addicted; J.Q. admitted to having been in jail fifteen times, not
nineteen; she admitted to only three suicide attempts, not four; that
the hypothetical is based upon past rather than current behavior; etc.
Resolution of this issue is guided
by the following language from Weinstock
v. Ott (1983), Ind.App.,
444 N.E.2d 1227, 1230-31:
trial judge did not err in allowing the hypothetical question to be answered.
Weinstock is correct that ordinarily an expert witness should
not be allowed to answer a hypothetical question which assumes facts unsupported
by the evidence or reasonable inferences therefrom. [citations omitted]
guards against the trier of fact adopting an expert's opinion which is
based on false or inapplicable facts. [citations omitted] However,
here this safeguard is not needed.
hypothetical question was asked during a voir
dire examination outside
of the jury's presence. This examination was conducted so
that the trial judge could determine whether Dr. Zarins was competent
to testify as an expert medical *313
witness. Because of the trial judge's legal experience and
expertise regarding the rules of evidence, we presume that he was able
to hear the hypothetical question and its answer, then subsequently determine
if enough evidence had been admitted to support the facts which the hypothetical
assumed. [citations omitted]
The same reasoning is applicable in the present case. No
jury was involved, and we presume that the trial judge was able to determine
whether the evidence presented sufficient facts to support the hypothetical
question and its answer. Thus, no reversible error is shown.
With respect to appellant's contention
that the Porter Circuit Court violated 25 U.S.C. § 1914
by failing to invalidate the adoption decree because of alleged violations
of §§ 1911, 1912, and 1913 of the ICWA, we determine elsewhere
in this opinion both that the ICWA is not applicable, and that, even if
applicable, said sections were not violated by the trial court.
also asserts that the adoptive placement here granted violated
the placement provisions of § 1915 of the ICWA because § 1915(c)
provides that the tribal placement preference must be followed, the adoptive
parents are not Indian, and the Oglala Sioux tribal code prohibits the
adoption of a tribal member by a non-Indian family. To the
extent that § 1915(c) applies to adoptive placements of an Indian
child under state law, the statutory deference to be accorded the Tribe's
order of preference applies only "in the absence of good cause to
the contrary." 25 U.S.C. § 1915(a). Because of our
determination that the evidence clearly demonstrated good cause to the
contrary, we conclude that the adoptive placement preferences, including
established tribal preferences, are not binding under the facts of this
case. Thus, the trial court did not err in failing to follow the preferences
for adoptive placement under § 1915 in this case. Cf.
In re Maricopa County, supra
(no abuse of discretion in the decision of the trial court declining to
follow the preferences for adoptive placement).
claims that the evidence was insufficient to support the trial court's
findings of fact with respect to the child's paternity. We
disagree. The record contains testimony of numerous occasions
in which J.Q. stated to various others that the former husband was not
the father of the child. Furthermore, J.Q.'s petition for
divorce was filed ten months before the divorce was granted, and the divorce
decree was devoid of any mention of J.Q.'s pregnancy or the paternity
of the fetus. The trial court was not required
to accept J.Q.'s subsequent contrary assertions. The evidence
was sufficient to support his findings.
Appellant contends that the trial
court erred in failing to dismiss the adoption petition due to lack of
notice and service upon her former husband as the alleged father of the
child. J.Q. filed for divorce on January 24, 1980, the divorce
was granted November 14, 1980, and the child was born June 14, 1981. The
adoption petition was filed September 22, 1982. On May 26,
1983, the trial court received the following letter from the former husband:
would like to bring to your attention that I have not as yet received
a notice of the hearings concerning my baby, [TRM]. I have not consented
to this adoption and would like an attorney appointed on my behalf.
The trial court appointed counsel to represent the former husband's
interests on May 31, 1983.
At the hearing on the adoption
proceeding on September 29, 1983, the appointed attorney moved to withdraw
her appearance on behalf of the former husband. The court granted
the motion finding there had been no meaningful contact with the client.
In the Order of Adoption, the trial court made the following
[the former husband] ... was represented by counsel Joanne Tapocsi until
the hearing date of September 29, 1983, at which time this Court allowed
Mrs. Tapocsi to withdraw her appearance, after that September 29, 1983,
Tapocsi wrote to [the former *314
husband] at the last address given her. Said letter has not
been returned at the date of the completion hearing on October 19, 1983,
although Mrs. Tapocsi informed [the former husband] that she had withdrawn
and that the hearing was continued until October 19, 1983.
It is clear that the former husband
had actual notice of the proceedings, and was further represented by counsel
who was duly aware of and participating in the proceedings with access
to all the pleadings, documents, etc., in her representation of him. Moreover,
the former husband is not a party to this appeal and has not taken any
appeal from the trial court's order granting the adoption of the child,
notwithstanding the absence of his express consent. We thus
decline to find error, not only because the trial court correctly determined
from the evidence that the child's paternity had not been established
and that there was insufficient evidence of the claims that the former
husband was the biological father of the child, but also because the former
husband had actual knowledge of the proceedings, received appointed counsel,
and has failed to take an appeal. We reject appellant's argument
that the adoption is void due to lack of jurisdiction and denial of due
process resulting from alleged lack of notice and service upon the husband.
The evidence which J.Q. contends
clearly supports her claim that the former husband is the biological father
includes a rebuttable presumption of legitimacy according to South Dakota
law and tribal law, her own testimony, and the
former husband's acknowledgement by affidavit filed with the tribal court
over two years after the child was born and by two letters he sent to
the trial court. While such evidence does raise a presumption,
the trial court heard the testimony and observed the witness' demeanor
and found that such presumption was rebutted by the strong evidence to
the contrary. We will neither reweigh the evidence nor judge
the credibility of the witnesses on review. The record supports
the trial court's finding by clear and convincing evidence and we find
J.Q. contends that the trial court erred in finding abandonment of the
child by J.Q. Appellant argues that the trial court incorrectly
applied South Dakota rather than Indiana law to find abandonment. We find
that the trial court's conclusion of abandonment was proper under the
laws of both states. The record is sufficient to support the
trial court's finding that J.Q. not only intended to, but did in fact
abandon the child by relinquishing all parental responsibility and physical
control of the child to the adoptive mother. In addition to
the trial court's proper finding of abandonment under South Dakota law,
we further find that the evidence supports a finding of abandonment under
the standards of Ind.Code § 31-3-1-6(g), dispensing with the
requirement of parental consent for adoption in the case of abandonment.
contends that the trial court violated her due process rights
by failing to appoint counsel in the appeal of the habeas corpus action.
J.Q. had been represented by South Dakota counsel during the
habeas corpus proceedings. The trial court entered its order
in the habeas action on October 21, 1982. On November 1, 1982,
J.Q., by her private counsel, filed in the adoption cause a letter requesting
the trial court appoint indigent counsel for herself and the former husband
in the adoption proceeding under 25 U.S.C. § 1912(b).
The trial court found that indigency
had not properly been proven and denied the request. There
was nothing in the letter indicating that J.Q.'s private counsel intended
to withdraw from representing her in the habeas corpus case, or that she
would fail to comply with state law regarding the perfection of a timely
appeal. J.Q.'s right to file a timely appeal did not expire
until December 20, 1982. There was nothing filed in either
the habeas action or the adoption action to make the trial court aware
that J.Q.'s attorney would not fulfill her continuing duty to represent
her client's interests in the habeas action. Subsequent failure
to perfect an appeal regarding issues determined in the habeas corpus
proceeding was not the result of the trial court's denial of appointment
of counsel in the adoption proceedings. The trial court did
not violate J.Q.'s due process rights and we find no error.
J.Q. further contends that the trial court's order of adoption was contrary
to the consent requirements of Ind.Code § 31-3-1-3, which
provides in pertinent part:
in the case of a child sought to be adopted by a step parent, a child
sought to be adopted by a blood relative, or a child received by the proposed
adopting parent or parents from an agency without the state with the written
consent of the state department of public welfare, or where the court
in its discretion after a hearing held upon proper notice has waived the
requirement for prior written approval, no child shall be placed in a
proposed adoptive home without prior written approval of such placement
by a duly-licensed child placing agency or county department of public
welfare, which agency or county department shall be approved for such
purpose by the state department of public welfare. Such approval
shall be filed along with the petition for adoption.
Ind.Code § 31-3-1-8(d) refers to the necessity of a "proper
consent, if any be necessary, to the adoption" as prerequisite to
a decree of adoption. Appellant contends that these two statutes required
that the adoption petition be accompanied with a consent for placement
from the state or county department of public welfare or the trial court.
We disagree. The consent requirements of Ind.Code
§ 31-3-1-8(d) refer to the consents prescribed by Ind.Code § 31-3-1-6.
The provisions of Ind.Code § 31-3-1-3 would require
prior written agency or welfare department approval prior to placement
of a child in a proposed adoptive home. The statute applies
to pre-adoption placement, but it
does not constitute a jurisdictional prerequisite to the granting of the
final adoption. Stout
v. Tippecanoe County Dep't of Pub. Welfare
(1979), 182 Ind.App. 404, 414-16, 395 N.E.2d 444, 451-52.
addition, appellant contends that the trial court erred in considering
the county welfare department report as evidence. The report's
finding of fact 16 provided:
County Department of Public Welfare has made an investigation as to the
home of the [adoptive parents] pursuant to statute and have recommended
that this adoption take place.
We view this finding of fact as significant only to show satisfaction
of the procedural requirements of Ind.Code § 31-3-1-4, requiring
the filing of a written report by a specified social service agency. The
trial court's reference to the fact of approval by the agency cannot be
viewed as harmful error in light of the clear and overwhelming specific
evidence otherwise supporting the granting of the adoption.
J.Q. also asserts the alternative argument that the Uniform Child Custody
Jurisdiction Act (Uniform Act), Ind.Code § 31-1-11.6-1 et
seq, controls and the
trial court had no subject matter jurisdiction over this case. This
argument is unpersuasive for at least two reasons. First,
to the extent that the Uniform Act requires deference to proceedings in
other states, the word "state" is defined to mean "any
state, territory, or possession of the United
States, the commonwealth of Puerto Rico, and the District of Columbia."
Ind.Code § 31-1-11.6-2(10). Neither the Reservation
nor the Oglala Sioux Tribal Court is within the ambit of this definition
in the Uniform Act. Second, even if we were to consider the
tribal court proceedings as equivalent to those of another state, the
Porter Circuit Court was properly vested with jurisdiction because the
facts in the record demonstrate that Indiana was the "home state"
of the child under the provisions of the Uniform Act. This
is not a situation in which the adoptive parents wrongfully took the child
from another state or improperly retained possession after temporary relinquishment
of physical custody. We likewise reject appellant's argument
that the Oglala Tribal Court had continuing jurisdiction by reason of
its prior divorce proceedings involving J.Q. and *316
her former husband. Because the tribal divorce court failed
to recognize the minor child as a child of the marriage and made no provisions
with respect to the child's custody, support, or otherwise, the tribal
divorce proceeding clearly had not exercised any prior jurisdiction with
respect to the minor child.
In her final contention, J.Q.
contends, in the alternative, that even if her alleged errors are individually
found harmless by this Court, the cumulative effect thereof was to deny
her a fair trial. We disagree. Notwithstanding
the thorough discussion and forceful argument presented on behalf of appellant,
we decline her request that we vacate the adoption decree and to order
transferred to the Oglala Sioux Tribal Court.
The decision of the Court of Appeals is vacated and the trial court's
judgment is affirmed.
SHEPARD, C.J., and DeBRULER,
GIVAN and PIVARNIK, JJ., concur.
525 N.E.2d 298