(Cite
as: 543 A.2d 925)
Supreme Court of New Jersey.
In
the Matter of the ADOPTION OF A CHILD OF INDIAN HERITAGE.
Argued
Jan. 4, 1988.
Decided
July 7, 1988.
*160
**927
Brian J. Sexton, Trenton, for appellants Kenneth Wright, Jr., Amy Whiting,
Janet Moran, Frances McKnight, Larry S. Wright, Kenneth Wright, Sr., Joyce
Wright and Clayton Wright (Sterns, Herbert, Weinroth & Petrino, attorneys
and Robert Santaloci, attorney; Brian J. Sexton and Robert Santaloci,
on the briefs).
Margaret
Goodzeit, Iselin, for respondents “Adoptive Parents” (Greenbaum, Rowe,
Smith, Ravin, Davis & Bergstein, attorneys).
Jack
F. Trope, New York City, submitted a letter in lieu of brief on behalf
of amicus curiae Ass'n on American Indian Affairs, Inc.Brian
J. Sexton argued
the cause for appellants Kenneth Wright, Jr., Amy Whiting, Janet Moran,
Frances McKnight, Larry S. Wright, Kenneth Wright, Sr., Joyce Wright and
Clayton Wright (Sterns,
Herbert, Weinroth & Petrino,
attorneys and Robert
Santaloci,
attorney; Brian
J. Sexton and
Robert Santaloci,
on the briefs).Margaret
Goodzeit argued
the cause for respondents “Adoptive Parents” (Greenbaum,
Rowe, Smith, Ravin, Davis & Bergstein,
attorneys).Jack
F. Trope submitted
a letter in lieu of brief on behalf of amicus
curiae Association
on American Indian Affairs, Inc.
The opinion of the Court
was delivered by
HANDLER, J.
In
this appeal, we are asked to vacate a three-year old private placement
adoption of an infant, alleged to be an American Indian, on the grounds
that the adoption proceedings failed to conform to the requirements of
state law and the federal Indian Child Welfare Act, 25 U.S.C.
§§ 1901 -63 (1982) (“ICWA” or “Act”), which governs the adoption
of Indian children. In *161
addressing this request for relief, we must treat a number of threshold
jurisdictional issues relating to the applicability of the Indian Child
Welfare Act to the child as well as to the petitioners, who claim respectively
parental and familial rights. We also must consider the legal sufficiency
of the adoption proceedings under both the federal Act and state law.
Under the circumstances surrounding this case, we conclude that the adoption
should not be disturbed. We do so because the trial court's **928
decision in refusing to vacate the judgment of adoption did not offend
the requirements of either the state adoption laws or the Indian Child
Welfare Act, and did not constitute an abuse of discretion.
I.
The child who is the subject
of these proceedings has been referred to as Baby Larry. Petitioners,
Kenneth Wright Jr., who claims to be the father of the child, and members
of his extended family, moved to vacate the adoption on the grounds that
they were not provided notice of the adoption proceedings and that the
adoption of this child was not in accord with the requirements of the
ICWA. Their claims necessitate a detailed and comprehensive recapitulation
of the procedural history and facts in the case.
Wright and the child's
mother FN1
are both registered members of the Rosebud Sioux Indian Tribe. Neither
has lived, at any time relevant to this case, on the tribal reservation,
residing instead in towns that border the reservation. Wright had earlier
fathered the mother's first child (not Baby Larry), and for much of the
time period relevant to this appeal resided with her and their first child.
FN1.
Both Baby Larry's mother and his adoptive parents have requested anonymity.
In December of 1983, Baby
Larry's mother discovered she was pregnant; in that same month Wright,
who was then away, *162
returned to live with her in Winner, South Dakota. Wright's attitude towards
the pregnancy is an issue in dispute. In her affidavit to the trial court,
the mother claimed that Wright denied that he was the father of the child
and offered her $300 to use to get an abortion. Wright, in contrast, states
that he claimed to be the father of the child and objected to the mother's
plan to give up the child. When she went into labor, however, Wright went
to visit relatives in
nearby Mission, South Dakota, and did not return until after the mother
had placed the child with his adoptive parents. Thus, neither Wright nor
any of the members of his extended family have ever seen Baby Larry, who
is now approaching his fourth birthday.
Baby Larry was born on
August 17, 1984. Prior to the baby's birth, his mother communicated with
lawyers in New York about placing the child for adoption. On August 24,
1984, she traveled to New York and executed a consent to adoption and
termination of parental rights. The next day, the mother met the adoptive
parents, who are New Jersey residents, and turned Baby Larry over to them
before returning to South Dakota. On September 3, 1984, the adoptive parents'
attorney filed a complaint for adoption in the Chancery Division, Family
Part, in Middlesex County. A week later, on September 11, 1984, the trial
court granted the adoptive parents temporary custody of Baby Larry, and
appointed Better Living Services, a private adoption agency, to prepare
a report on the proposed adoption pursuant to N.J.S.A.
9:3-48. A preliminary hearing was scheduled for November 16, 1984.
After relinquishing the
child, the mother returned to Winner, and a short time later Wright moved
back in with her. There is a dispute over the sequence of events that
followed Wright's resumption of his cohabitation with the mother and their
first child. Respondents claim that on September 19, 1984, their attorney
mailed notice of hearing and consent-to-adoption forms to both the mother
and Wright at the mother's Winner address, as well as an additional set
of forms sent to Wright at the *163
address of his relatives in Mission, South Dakota. All three sets of forms
were mailed certified mail return receipt requested, accompanied by a
cover letter identifying the enclosed forms and providing instructions
on how to complete them, including the attorney's telephone number should
Wright or the mother require his assistance. Although the return receipts
have not been produced due to lack of cooperation on the part of the attorney,
proof of mailing has been produced, and the forms sent to the mother were
completed and returned by her prior to October 1, 1984. According to respondents,
Wright telephoned theattorney **929
and consented to the adoption, but never returned the consent form.
Wright, on the other hand,
denies that the attorney ever communicated with him and that he ever called
the attorney, contending that the only documents he received were a letter
and a consent-to-adoption form from Better Living Services. Wright's version
of these events is suspect. Better Living Services, which had been appointed
by the court to prepare the pre-adoptive report on the fitness of the
child for adoption, never sent such a letter to Wright. It did, however,
send a letter to the mother at the Winner, South Dakota address where
she and Wright were living, requesting her help in the preparation of
the pre-adoptive report. FN2
The trial court, noting that a consent form could not have been sent to
Wright from Better Living Services, discredited Wright's version of the
facts and found that Wright in fact had been provided notice. In light
of this, Wright argues on appeal that he received only a consent-to-adoption
form, and that whoever sent the consent form intentionally failed to include
a notice of hearing or any other form of documentation.
FN2.
This letter, dated September 25, 1984, disclosed the place and time of
the preliminary hearing on the adoption petition, as well as the telephone
number of Better Living Services.
On October 15, 1984, respondents
filed an amended complaint, which repeated the mother's allegation that
the father of *164
the child was unknown but disclosed Wright's claim of paternity. Although
the complaint mentioned that Wright had orally consented to the adoption,
it conceded that no written consent had been returned, and asked that
Wright's parental rights be terminated on the grounds that he had forsaken
his parental obligations. At the November 16, 1984 preliminary hearing,
the trial court found that Baby Larry was fit for adoption and that the
adoptive parents were fit. It appointed Better Living Services as next
friend, granted the adoptive parents custody pending the final adoption
hearing scheduled for May 24, 1985, and terminated the parental rights
of the mother and Wright. There being no change in the parties' status,
the court entered a final judgment of adoption on May 24, 1985, which
explicitly terminated the parental rights of the mother and Wright. At
no time during either proceeding was there any indication that Baby Larry
might be an Indian child. In fact, the report from Better Living Services
listed the race of both the mother and Baby Larry as Caucasian.
With the exception of
one inquiry to the Rosebud Sioux Tribe in the fall of 1984, of which there
is no record, it appears that Wright did nothing to locate or regain custody
of Baby Larry from the fall of 1984 until January of 1986, despite the
fact that during much of this time he was living with the mother and their
first child. Early in January of 1986, however, Wright contacted South
Dakota Legal Services, which in turn contacted the Association of American
Indian Affairs, an Indian rights organization, which in turn initiated
inquiries with the Middlesex County Surrogate's Office on January 8, 1986.
Subsequently, Wright obtained representation from Middlesex County Legal
Service Corporation, which filed a notice of motion to vacate the adoption
of Baby Larry on May 23, 1986, one day before the one-year period to overturn
a judgment on the basis of fraud, see
R. 4:50-1,
4:50-2, would have expired. In addition to alleging fraud, Wright included
an affidavit that he is an enrolled member of the Rosebud Sioux Tribe
and that the adoption of Baby Larry, who he claims to be his son, was
in *165
violation of the ICWA. On these grounds, he requested that the adoption
be vacated, his parental rights re-established, and that the matter be
transferred to the Rosebud Sioux Tribal Court.
The trial court conducted
a hearing on Wright's motions on June 6, 1986. In an order dated June
27, 1986, it denied Wright's motions to vacate the adoption, reinstate
his parental rights, and transfer the matter to the Rosebud Sioux Tribal
Court without prejudice, thus giving Wright a second opportunity to show
that the ICWA applied and required such action. The court, however, did
grant Wright access to certain parts of the case file, limited **930
to protect the identity of the adoptive parents.
Following the initial
hearing, Wright's attorney contacted the Rosebud Sioux Tribe to determine
whether Baby Larry qualified for tribal membership and whether the tribe
would be interested in intervening in the New Jersey proceedings. The
tribe replied that since the mother, although an enrolled Rosebud Sioux,
has only 9/32 Rosebud Sioux blood, Baby Larry, relying solely on the basis
of his mother's enrollment, would not meet the one-quarter blood quotient
requirement. The tribe also declined to intervene on the grounds of insufficient
funds. On October 17, 1986, however, a group of Wright's relatives led
by Amy Whiting, Wright's sister, moved to intervene on the grounds that
the ICWA gave them standing as potential custodians of Baby Larry.
On November 7, 1986, the
trial court heard argument on Wright's renewed petition to vacate the
adoption, as well as his relatives' petition to intervene. It concluded
that Baby Larry was not an Indian child under the ICWA and that Wright
had not acknowledged paternity at the time of the adoption proceedings,
had had notice of the proceedings, and had waited too long to assert any
rights he might have had under the federal Indian laws. Wright and his
relatives appealed to the Appellate Division, which issued an opinion
concluding that the trial court had *166
not abused its discretion in refusing to vacate the final judgment of
adoption. In
re Adoption of a Child of Indian Heritage,
219 N.J.Super.
28, 529 A.2d
1009 (App.Div.1987). This Court granted appellants' petition for certification,
109 N.J.
57, 532 A.2d
1120 (1987).
II.
In determining this appeal,
we are constrained to consider the applicability of the Indian Child Welfare
Act to this adoption proceeding. The Act, if applicable, dictates the
issues that will be critical to the claims of the respective parties.
It is therefore necessary to understand the nature and purpose of the
ICWA.
The ICWA is primarily
concerned with preserving the continued existence and integrity of Indian
tribes by preventing the unwarranted removal of Indian children from their
families by nontribal public and private agencies, see
25 U.S.C.
§ 1901(3), (4) ; H.R.Rep.
No. 1386 95th
Cong. 2d Sess. 9, reprinted
in 1978 Code
Cong. & Ad.News,
7530, 7531. The Act is intended to combat the removal of Indian children
by state administrative and judicial bodies through a failure to recognize
and appreciate the essential tribal relations of Indian people and the
cultural and social standards prevailing in Indian communities and families.
See
25 U.S.C.
§ 1901(5). In particular, Congress was concerned with outright bias
against Indians by state social workers as well as the more subtle problem
of social workers untutored in the ways of Indian family life mistaking
methods of raising and disciplining children within an extended Indian
family for excessive permissiveness, neglect, or abandonment. H.R.Rep.
No. 1386 ,
supra,
at 10, reprinted
in 1978 Code
Cong. & Ad.News
at 7532. Additionally, it found that the dependency of many Indian parents
on state welfare agencies frequently resulted in coerced “voluntary” placements
of Indian children, id.,
an anomaly of the social welfare system that is not limited to Indian
families, see,
e.g., Sorentino
v. Family & Children's Soc. of Elizabeth,
72 N.J.
127, 129, 367 A.2d
1168 (1976) (Sorentino
I ), appeal
*167
after remand, 74 N.J.
313, 378 A.2d
18 (1977) (Sorentino
II ), aff'd
after remand, 77 N.J.
483, 391 A.2d
497 (1978).
Furthermore, Congress
found that the erosive effects of these practices on Indian society were
multiplied by the fact that the same cultural biases that led to excessive
removal of Indian children from their families militated against the selection
of Indians as foster or adoptive parents. As a result, it would frequently
come to pass that an Indian child, once removed from his or her parents,
would become separated from all aspects of Indian culture.
H.R.Rep.
No. 1386 ,
supra,
at 11, reprinted
in 1978 Code
Cong. & Ad.News
at 7533. This not only posed a threat to the stability and security of
Indian tribes, but also carried **931
with it the potential for psychological harm to the Indian child; studies
of Indian children placed in non-Indian homes have revealed instances
of ethnic confusion and a sense of abandonment. See
Barsh, “The Indian Child Welfare Act of 1978, A Critical Analysis,” 31
Hastings L.J.
1287, 1291 (1980).
To address these concerns,
Congress in 1978 passed the Indian Child Welfare Act. Its declaration
of policy states that:
The
Congress hereby declares that it is the policy of this Nation to protect
the best interests 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, and by providing for assistance
to Indian tribes in the operation of child and family service programs.
[25 U.S.C.
§ 1902]
The
Act attempts to protect the welfare of Indian families by conferring on
tribal courts exclusive jurisdiction over any child custody proceedings
involving an Indian child who resides or is domiciled on the tribe's reservation,
25 U.S.C.
§ 1911(a) , and provides for the permissive transfer of state court
custody proceedings to a tribal court, 25 U.S.C.
§ 1911(b). The Act also grants the child's tribe the right to intervene
in any such proceeding that is not removed to a tribal court. 25 U.S.C.
§ 1911(c).
In addition, in state
court proceedings involving involuntary placement of Indian children,
the Act calls for notice to be given *168
to the child's parents or custodian, and the child's tribe if the court
has reason to believe an Indian child is involved, 25 U.S.C.
§ 1912(a). It also provides for family counselling and court-appointed
counsel to ensure that the relevant parties are fully aware of their legal
rights. 25 U.S.C.
§ 1912(b)-(d). Finally, the Act establishes substantive standards
for involuntary termination of an Indian parent's parental rights exceeding
those provided for non-Indian parents under state law. Under 25 U.S.C.
§ 1912(f), termination of parental rights cannot be ordered unless
there is “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.” The Act also contains
provisions for ensuring that voluntary placements are uncoerced and fully
informed, 25 U.S.C.
§ 1913 , as well as providing mechanisms for challenging placements
that did not conform to the Act's requirements, 25 U.S.C.
§ 1914 , facilitating the return of Indian children to their parents,
25 U.S.C.
§ 1916 , and calling for Indian children, whenever possible, to be
placed in an Indian environment, 25 U.S.C.
§ 1915.
Respondents stress that
this is a case where an unwed mother voluntarily relinquished her child
to a couple for adoption without that child ever having lived in an Indian
environment or with an Indian family. Respondents argue that it is unnecessary
to consider the ICWA, because Congress never intended for the Act to apply
in situations similar to this case.
Initially, there appears
to be some support for this position; there is nothing in the Act itself
or the House Report that specifically refers to such a proceeding. Furthermore,
it can be argued that the primary vice intended to be remedied by the
Act, the unjustified and involuntary removal of Indian children from an
Indian environment followed by placement in non-Indian homes by state
welfare agenices, see
Barsh, supra,
31 Hastings
L.J. at 1305,
is not an issue if the mother's relinquishment*169
is truly voluntary. Finally, a recurring fact pattern in such cases is
that the mother of an Indian child consented to the adoption in order
to avoid having the child raised in an Indian environment, see,
e.g., In
re Adoption of Halloway,
732 P.2d
962,
968 (Utah 1986), a sentiment expressed by Baby Larry's mother in her affidavit
to the **932
trial court in this case. FN3
Application of the ICWA in such cases, particularly where it is the tribe
or the parents' relatives rather than the father himself who seeks to
set aside the adoptive placement, see,
e.g., Kiowa
Tribe of Oklahoma v. Lewis,
777 F.2d
587 (10th Cir.1985), cert.
denied, 479 U.S. 872, 107 S.Ct.
247, 93 L.Ed.2d
171 (1986), is in some ways an intrusion on the mother's ability to determine
what is in the best interests of her child.
FN3.
In fact, the mother has requested that the tribe not assist petitioners'
attempt to vacate the adoption.
Citing such concerns,
a number of state courts, following the lead of the Kansas Supreme Court
in In re Adoption
of Baby Boy L,
231 Kan.
199, 643 P.2d
168 (1982), have determined that the ICWA does not apply where an unwed
mother voluntarily relinquishes her child for adoption shortly after birth.
Since no coercive state activities are involved, assuming a private adoptive
placement is truly voluntary, and the removal is not breaking up an existing
Indian family, these courts have concluded that the concerns addressed
by the Act were not implicated and that Congress did not intend that the
Act apply. See
In re S.A.M.,
703 S.W.2d
603 (Mo.App.1986) ; In
re Adoption of Baby Boy D,
742 P.2d
1059 (Okl.1985), cert.
denied sub nom. Harjo
v. Duello,
484 U.S.
1072, 108 S.Ct.
1042, 98 L.Ed.2d
1005 (1988) ; Claymore
v. Serr, 405
N.W.2d
650 (S.D.1987) (following reasoning of In
re Adoption of Baby Boy L
).
We disagree with this
interpretation of the Act because it posits as a determinative jurisdictional
test the voluntariness of the conduct of the mother. The Act itself does
not suggest this factor as a jurisdictional test of the Act's coverage,
although it *170
is unquestionably relevant in the Act's application. Under the ICWA, “child
custody proceeding” is defined as including “any action resulting in the
termination of the parent-child relationship,” 25 U.S.C.
§ 1903(1)(i)-(ii), and the Act itself specifies procedures for voluntary
terminations of parental rights. 25 U.S.C.
§ 1913. In addition, the application of the ICWA to voluntary private
placement adoptions is not inconsistent with the purposes of the Act,
particularly in cases in which an unwed father has not consented to the
adoption. The congressional findings accompanying the Act recite that
Congress has assumed responsibility for the protection and preservation
of Indian tribes, and that “there is no resource that is more vital to
the continued existence and integrity of Indian tribes than their children
and that the United States has a direct interest, as trustee, in protecting
Indian children....” 25 U.S.C.
§ 1901(2)-(3). The effect on both the tribe and the Indian child
of the placement of the child in a non-Indian setting is the same whether
or not the placement was voluntary.
Furthermore, the economic
factors that led Congress to provide safeguards against induced voluntary
relinquishments to state agencies are equally implicated in private placement
adoptions, see
Barsh, supra,
31 Hastings
L.J. at 1299,
concerns that have long colored our own perceptions of private placement
adoptions, see,
e.g., In
re Baby M,
109 N.J.
396, 423-29, 537 A.2d
1227 (1988) ; Sees
v. Baber, 74
N.J.
201, 217, 377 A.2d
628 (1977). Finally, while an unwed mother might have a legitimate and
genuine interest in placing her child for adoption outside of an Indian
environment, if she believes such a placement is in the child's best interests,
consideration must also be given to the rights of the child's father and
Congress' belief that, whenever possible, it is in an Indian child's best
interests to maintain a relationship with his or her tribe. See
In re Adoption
of K.L.R.F.,
356 Pa.Super.
555, 558, 515 A.2d
33 (1986), appeal dismissed, 516 Pa.
520, 533 A.2d
708 (1987).
For these reasons, we
decline to follow the interpretation of the ICWA urged by respondents,
which would preclude its *171
application to voluntary private placement adoptions, and we decline to
do so even where the child has never lived with an Indian family or in
an Indian environment. See,
e.g., In
re Appeal in Maricopa County,
136 Ariz.
528, 533, 667 P.2d
228, 233 **933
(App.1983) ; In
re Custody of S.B.R.,
43 Wash.App.
622, 625-26, 719 P.2d
154, 156 (1986) (also rejecting the reasoning of In
re Adoption of Baby Boy L
).
The ICWA's application,
however, still remains contingent on whether an Indian child is the subject
of a child custody proceeding. 25 U.S.C.
§§ 1903(1) , 1903(4). This, in turn, impels us to determine
when, under the Act, the child involved is deemed to be an Indian. “Indian
child” is defined in 25 U.S.C.
§ 1903(4) as “any unmarried person who is under age eighteen and
is either (a) a member of an Indian tribe or (b) is eligible for membership
in an Indian tribe and is the biological child of a member of an Indian
tribe.” Because Baby Larry's mother is only 9/32 Rosebud Sioux, based
on his mother's lineage alone he is only slightly more than one-eighth
Rosebud Sioux, and therefore is not eligible for tribal membership unless
his father is of sufficient Indian ancestry such that the child would
be of one-quarter or more Rosebud Sioux blood. Wright, the putative father,
is 17/32 Rosebud Sioux and is an enrolled member of the tribe. If paternity
were attributed to Wright, it appears that Baby Larry would be eligible
for membership. The Rosebud Sioux, however, determined that Baby Larry
is not currently eligible for membership, not because his ancestry is
not in fact more than one-quarter Rosebud Sioux, but because his ancestry
is uncertain, since no affidavit of paternity has ever been filed with
the tribe. Contending that Wright is in fact the father, petitioners assert
that Baby Larry is an Indian child. Respondents argue that since the Tribe
has refused to enroll Baby Larry, he is not eligible for tribal membership
and is *172
therefore not an Indian child within the meaning of the ICWA. FN4
Although the question is not free from doubt and other courts have ruled
that children such as Baby Larry are not Indian children within the meaning
of the ICWA, see,
e.g. In
re Appeal in Maricopa County,
136 Ariz.
at 533, 667 P.2d
at 233, we feel that, given the procedural posture of this case, the tribe's
current refusal to enroll Baby Larry is not determinative of his status
as an Indian child under the ICWA.
FN4.
The Appellate Division, approaching this issue from a slightly different
tangent, concluded that the trial court was not in error in not applying
the Act since at the time of the final judgment of adoption it had no
reason to believe that Baby Larry was an Indian child. In
re Adoption of A Child of Indian Heritage,
219 N.J.Super.
at 40, 529 A.2d
1009.
Unlike Wright's status
as a parent under ICWA, discussed infra,
which involves a legal determination, we are satisfied that Congress intended
that a child's eligibility for tribal membership be a question of fact
dependent on his or her actual ancestry. Since Baby Larry's ancestry is
in dispute, a definitive resolution of his status as an Indian child would
thus require an evidentiary hearing. We find it unnecessary to resolve
this factual question, however, because even if Baby Larry is an Indian
child, petitioners' challenge under the Act fails on other grounds.
III.
Before Wright can take
advantage of the procedures provided by the Act, he must first satisfy
its definition of “parent.” Under the ICWA, “parent” is defined as
any
biological parent or parents of an Indian child or any Indian person who
has lawfully adopted an Indian child, including adoptions under tribal
law or custom. It
does not include the unwed father where paternity has not been acknowledged
or established.
[25 U.S.C.
§ 1903(9) (emphasis added).]
The
significance of this statutory definition is that unless Wright's paternity
had been acknowledged or established prior to the final entry of judgment
of adoption and termination of parental rights, he was not a parent entitled
to notice pursuant to the provisions of § 1912(a). Furthermore, because
the right *173
to challenge state custody proceedings is extended to a “parent,” pursuant
to § 1914, Wright does not even have standing under the Act unless
his paternity has been acknowledged or established. Although petitioners
contend that Wright's alleged claims of paternity to members of his family
prior to the birth of the child constitute an acknowledgement ofpaternity
**934
under the ICWA, we disagree. We conclude that Wright's claims of paternity
under the circumstances do not constitute the acknowledgement required
under the Act.
The Act itself provides
no express standards with respect to how an unwed father can acknowledge
or establish paternity. Furthermore, the interpretative guidelines promulgated
by the Bureau of Indian Affairs do not even discuss the problem of determining
paternity. See
44 Fed.Reg.
67,583 (1979). The only indication of the legislative intent behind the
Act's definition of “parent” is contained in the House Report on the Act,
which states that the qualification of an unwed father's right “is not
meant to conflict with the decision of the Supreme Court in Stanley
v. Illinois,
405 U.S.
645, [92 S.Ct.
1208, 31 L.Ed.2d
551 (1972) ].” H.R.Rep.
No. 1386 ,
supra,
at 21, reprinted
in 1978 U.S.Code
Cong. & Ad. News
at 7543. Hence, the legal principles surrounding this decision are instructive.
At common law, an unwed
father had no parental rights. In Stanley,
however, the Supreme Court found that a blanket denial of parental rights
to all unwed fathers regardless of their fitness as parents violates the
due process clause of the fourteenth amendment. See
Stanley,
405 U.S.
at 657-58, 92 S.Ct.
at 1215-16, 31 L.Ed.2d
at 562. In a series of cases over the next decade, the Court sought to
define under what circumstances a state could deny an unwed father parental
status. See
Lehr v.
Robertson,
463 U.S.
248, 103 S.Ct.
2985, 77 L.Ed.2d
614 (1983) (upholding denial of parental rights to an unwed father who
had failed to establish a substantial relationship with his child); Caban
v. Mohammed,
441 U.S.
380, 99 S.Ct.
1760, 60 L.Ed.2d
297 (1979) (according constitutional protection to unwed father who had
sustained a relationship with his *174
children); Quilloin
v. Walcott,
434 U.S.
246, 98 S.Ct.
549, 54 L.Ed.2d
511, reh'g denied, 435 U.S.
918, 98 S.Ct.
1477, 55 L.Ed.2d
511 (1978) (denying constitutional protection to unwed father who had
manifested only limited interest in his children); see
also Comment,
“Delineation of the Boundaries of Putative Father's Rights: A Psychological
Parenthood Perspective,” 15 Seton
Hall L.Rev.
290 (1985) (analyzing this line of authority).
The synthesis of these
opinions is clear: “[p]arental rights do not spring full-blown from the
biological connection between parent and child. They require relationships
more enduring.” Lehr,
463 U.S.
at 260, 103 S.Ct.
at 2992, 77 L.Ed.2d
at 626, quoting Caban,
441 U.S.
at 397, 99 S.Ct.
at 1770, 60
L.Ed.2d at
310 (Stewart, J., dissenting) (emphasis added in Lehr
deleted). Therefore, states may constitutionally deny an unwed father
parental status unless and until he manifests an interest in developing
a relationship with that child, provided that the qualifications for establishing
such rights are not beyond the control of an interested putative father
to satisfy.
Lehr, 463 U.S.
at 264, 103 S.Ct.
at 2995, 77 L.Ed.2d
at 628. Following the Court's decision in Stanley,
many states adopted statutes defining the circumstances under which a
man would be presumed to be a child's father and thus be entitled to due
process in any proceeding involving the child.
The New Jersey Parentage
Act, N.J.S.A.
9:17-38 to 59 , patterned after the 1973 Uniform Parentage Act (which
has since been adopted by approximately fifteen states, see N.J.S.A.
9:17-38) is representative, presuming a man to be a child's father if,
for example, he has married the mother, or supported the child or taken
the child into his home while openly holding out the child as his natural
child. N.J.S.A.
9:17-43. In cases where circumstances beyond the father's control have
made it impossible to establish an actual relationship with the child,
the Act makes provisions for the unwed father to protect his legal status
by filing a written acknowledgement of paternity, N.J.S.A.
9:17-43a(6), or initiating a legal proceeding to claim paternity,*175
N.J.S.A.
9:17-43(d). The provisions in states that have not adopted the Uniform
Parentage Act are substantially similar. See,
e.g. NY
Dom.Rel.Law
§ 111 ; S.D.
Codified Laws Ann.
§§ 25-6-1 , 25-6-1.1. The constitutionality of such statutory
schemes was upheld in Lehr,
which held that an unwed father who failed to satisfy any of the **935
status provisions of the New York law and who had also failed to take
advantage of the statewide “putative father registry” established by New
York was not entitled to notice of his child's adoption. Lehr,
463 U.S.
at 265, 103 S.Ct.
at 2995, 77 L.Ed.2d
at 629.
These developments in
the law were occurring contemporaneously with the hearings, reports, and
eventual adoption of the ICWA in 1978, and appear to be reflected in the
Act itself. Rather than establish a uniform rule recognizing all biological
parents as parents, Congress instead included in the ICWA a definition
of “parent” that excludes unwed fathers who have not taken affirmative
steps to ensure that their relationship with their child would be recognized.
This approach to the status of unwed fathers is consistent with the development
of state law with regard to unwed fathers that was occurring as a result
of the Stanley
decision. In light of this, and the failure of either the Act or its interpretive
regulations to prescribe or define a particular method of acknowledging
or establishing paternity,
we infer a legislative intent to have the acknowledgment or establishment
of paternity determined by state law. FN5
FN5.
Such an interpretation is not unprecedented. In determining the meaning
of “children” in the inheritance provisions of the Copyright Act of 1947,
17 U.S.C.
§ 24, for example, the Supreme Court observed:
The
scope of a federal right is, of course, a federal question, but that does
not mean that its content is not to be determined by state, rather than
federal law. [citations omitted]. This is especially true where a statute
deals with a familial relationship; there is no federal law of domestic
relations, which is primarily a matter of state concern.
...
We think it proper, therefore, to draw on the ready-made body of state
law to define the meaning of the word “children” in § 24. This does
not mean that a State would be entitled to use the word “children” in
a way entirely strange to those familiar with its ordinary usage, but
at least to the extent that there are permissible variations in the ordinary
concept of “children” we deem state law controlling. [DeSylvia
v. Ballentine,
351 U.S.
570, 580-81, 76 S.Ct.
974, 980, 100 L.Ed.
1415, 1427-28 (1956), reh'g denied, 362 U.S.
907, 80 S.Ct.
608, 4 L.Ed.2d
558 (1960).]
*176
Courts of other states have also looked to state law to determine whether
an alleged father of an Indian child has acknowledged or established paternity.
See, e.g., In
re Appeal in Maricopa County, supra,
136 Ariz.
at 533, 667 P.2d
at 233; In re
S.A.M., supra,
703 S.W.2d
at 607 n. 4; In
re Adoption of Baby Boy D, supra,
742 P.2d
at 1064; Furthermore, the ICWA's definition of parent looks to state or
tribal law to determine the status of adoptive parents, 25 U.S.C.
§ 1903(9) ; In
re Adoption of K.L.R.F., supra,
356 Pa.Super.
at 560-61, 515 A.2d
at 36 (adoptive mother recognized as “parent” within meaning of the ICWA),
and also makes the determination of whether a person has legal custody
of a child a question of state or tribal law. See
25 U.S.C.
§ 1903(6) ; State
ex rel. Juvenile Dep't v. England,
292 Or.
545, 553-55, 640 P.2d
608, 613 (1982). We conclude, therefore, that Congress intended to defer
to state or tribal law standards for establishing paternity, so long as
these approaches are permissible variations on the methods of acknowledging
and establishing paternity within the general contemplation of Congress
when it passed the ICWA,accord
DeSylvia,
351 U.S.
570, 581, 76 S.Ct.
974, 980, 100 L.Ed.
1415, 1428 (1956), reh'g denied, 362 U.S.
907, 80 S.Ct.
608, 4 L.Ed.2d
558 (1960), and provide a realistic opportunity for an unwed father to
establish an actual or legal relationship with his child, see
Lehr,
463 U.S.
at 264, 103 S.Ct.
at 2995, 77 L.Ed.2d
at 628. FN6
FN6.
The ICWA adopts a similar approach with respect to determination of a
child's domicile. The Act contains no independent definition of domicile,
an omission explained in the Bureau of Indian Affairs interpretative guidelines
on the grounds that “definitions [of domicile] were not included 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 purpose
of the Act.” 44 Fed.Reg.
at 67,585. In In
re Adoption of Halloway, supra,
732 P.2d
962, the Supreme Court of Utah, while acknowledging that Congress intended
that state law control the determination of domicile in ICWA cases, refused
to do so where the interplay of Utah law on domicile and parental abandonment,
when applied to the particular facts of that case (an admittedly collusive
attempt to circumvent exclusive tribal jurisdiction), resulted in a frustration
of the purposes of the Act which would not have been in the contemplation
of Congress when it enacted the ICWA. See
id.
at 968. The United States Supreme Court has granted review to determine,
among other issues, whether domicile under the ICWA is defined by state
or federal law. In
re B.B., 511So.2d
918 (Miss.1987), juris. postponed Mississippi
Band of Choctaw Indians v. Holyfield,
486 U.S.
1021, 108 S.Ct.
1993, 100 L.Ed.2d
225 (1988).
*177
**936
The procedures provided in the New Jersey Parentage Act provide more than
an adequate means of determining when an unwed father's paternity has
been acknowledged or established. The Parentage Act is patterned after
the 1973 Uniform Parentage Act and is substantially similar to the New
York putative father provisions upheld in Lehr.
Furthermore, it should be noted that, as applied, the New Jersey statute
provides greater protection for unwed fathers than the laws of many other
states. For example, under New Jersey law, by petitioning a court for
a declaration of paternity prior to the termination of his parental rights,
the father in Lehr
would have been entitled to notice of the pending proceeding to terminate
his parental rights. FN7
R.
4:5-1. In addition, unlike the result under the laws of other states,
which allow adoptions to occur any time after birth, see
In re Adoption
of Baby Boy D, supra,
742 P.2d
at 1073 (Kauger, J., concurring in part and dissenting in part), or require
acknowledgements of paternity to *178
be made within a short period of time after birth, see
S.D. Codified
Laws Ann. §
25-6-1.1 (sixty days), a non-stepparent private placement adoption in
New Jersey cannot be reduced to a final judgment until at least eight
months after the child's birth. N.J.S.A.
9:3-48. We therefore find that New Jersey law provides an adequate, if
not generous, means of acknowledging or establishing paternity.
FN7.
Although N.J.S.A.
9:17-43 does not specify that filing a paternity action gives rise to
a presumption of paternity, in our view such an action, upon notice to
the other parties involved, is the substantial equivalent of filing a
written notice of paternity for purposes of acknowledging paternity. See
N.J.S.A.
9:17-43(d); cf.
Lehr,
463 U.S.
at 274, 103 S.Ct.
at 3000, 77 L.Ed.2d
at 634-35 (White, J., dissenting) (arguing that the father in that case
had substantially complied with the New York statute by bringing suit
even if he had not filed his claim of paternity). In practice, however,
it would be rare for an unwed father to file a paternity suit without
filing a written notice of paternity, since filing the notice entitles
him to a presumption of paternity which must be rebutted by clear and
convincing evidence to the contrary. N.J.S.A.
9:17-43b.
Wright, however, failed
to establish any of the presumptions of natural parenthood provided in
N.J.S.A.
9:17-43. In addition, there is no indication that Wright ever filed a
written acknowledgement of paternity, N.J.S.A.
9:17-43a(6), or initiated a lawsuit claiming paternity or any other parental
rights prior to the final judgment of adoption. See
N.J.S.A.
9:17-43d. Furthermore, despite the fact that he had again moved in with
Baby Larry's mother within a month of her relinquishing custody of the
child to the adoptive parents, Wright never attempted to enforce his paternal
rights in South Dakota by either petitioning to enter his name on the
child's birth certificate, S.D.
Codified Laws Ann.
§ 25-6-1.1(2) ; S.D.
Codified Laws Ann.
§ 34-25-13.2, or commencing any other proceeding claiming a parental
right, such as visitation. S.D.
Codified Laws Ann.
§ 25-6-1.1(3). Finally, Wright never filed an affidavit of paternity
with the tribe or in any way attempted to exercise any right he might
have had to establish his parental rights before the Rosebud Sioux Tribal
Court.
Wright did not need notice
of the Baby Larry adoption proceeding to take any of these steps; any
unwed father concerned about protecting his parental rights would have
taken one or more of these steps on discovering, as Wright did in September
of 1984, that the mother no longer had custody of their child and that
the child had been placed for adoption. Therefore, despite having the
opportunity to do so for over nine months after the birth of the child,
Wright failed to acknowledge or establish his paternity prior to the entry
of the final *179
judgment of adoption, which terminated whatever parental rights to Baby
Larry he may have had.
As the record in this
case indicates, Wright failed to acknowledge or establish his paternity
of Baby Larry prior to entry **937
of the final judgment of adoption on May 24, 1985. In fact, he took no
such action with respect to the child until May 23, 1986, twenty-one months
after the child had been placed with his adoptive parents. Such action
is not a timely acknowledgement of paternity within the contemplation
of the ICWA.
Because the final judgment
of adoption had been entered prior to the initiation of Wright's suit
for custody, any right he has under federal law to invalidate Baby Larry's
adoption for failure to comply with the ICWA must come from 25 U.S.C.
§ 1914. This section provides that:
Any
Indian child who is the subject of any action for foster care placement
or termination of parental rights under State law, any parent or Indian
custodian from whose custody such child was removed, and the Indian child's
tribe may petition any court of competent jurisdiction to invalidate such
action upon a showing that such action violated any provision of section
101, 102, and 103 of this Act [25 U.S.C. §§ 1911 , 1912 , 1913].
Standing
under § 1914 is conferred on “any parent.” As “parent” is defined
by the ICWA, however, an unwed father is not a parent unless his paternity
has been acknowledged or established under state or tribal law. Because
Wright had not done so prior to the initiation of his custody suit on
May 23, 1986, he was not a “parent” within the meaning of the ICWA and
thus had no right to challenge the adoption under § 1914.
This interpretation of
the Act is reinforced by the language of § 1914 itself, which further
limits standing to challenge state-law terminations of parental right
to parents “from whose custody such child was removed.” Baby Larry's adoptive
parents argue that since Wright never had physical
custody of Baby Larry, he has no rights under § 1914, and several
courts applying the ICWA have reached similar conclusions. See,
e.g., In
re Adoption of Baby Boy L, supra,
231 Kan.
at 205-06, 643 P.2d
at 175, In re
S.A.M., supra,
703 S.W.2d
at 608. *180
See also In
re Adoption of a Child of Indian Heritage, supra,
219 N.J.Super.
at 42, 529 A.2d
1009 (indicating that the Appellate Division below would have interpreted
“custody” to mean physical custody). While we conclude that Wright does
not have standing under § 1914 , the issue is not as simply stated
as these cases and the language of the Act would indicate, since it appears
that § 1914 is referring to legal, rather than actual physical, custody.
“Custody” is not a defined
term under the ICWA. Furthermore, while one of the fundamental tenets
of statutory interpretation is that a word or phrase should have the same
meaning throughout the statute in the absence of a clear indication to
the contrary, see,
e.g., Perez
v. Pantasote, Inc.,
95 N.J.
105, 116, 469 A.2d
22 (1984), it would be improper to apply this maxim to the meaning of
“custody” in the ICWA. As used in the ICWA, the phrase “custody” has something
of a chameleon-like quality, with its meaning changing to adapt to a particular
textual context. Compare
25 U.S.C.
§ 1912(f) (apparently using “custody” to refer to a parent's legal
relationship with his or her child, see
H.R.Rep.
No. 1386 ,
supra,
at 22, reprinted
in 1978 Code
Cong. & Ad. News
at 7545) with
25 U.S.C.
§ 1916 (referring to return of physical custody of an Indian child
following a vacation of adoption pursuant to § 1914, see
H.R.Rep.
No. 1386 ,
supra,
at 24, reprinted
in 1978 Code
Cong. & Ad. News
at 7547).
We disagree with the Appellate
Division below, 219 N.J.Super.
at 42, 529 A.2d
1009, and other courts that have limited the scope of that section to
cover only parents who at one time or another had actual physical custody
of an Indian child. Not only would such a strict interpretation be contrary
to the general approach to Indian legislation, which is liberally construed
in favor of Indians seeking the benefits of protections of federal law,
see, e.g., Byran
v. Itasca County,
426 U.S.
373, 392, 96 S.Ct.
2102, 2112, 48 L.Ed.2d
710, 723 (1976), it would preclude application of the Act to an entire
class of fathers who were unable, due to circumstances beyond their control,
such as imprisonment, military*181
service, or the mother leaving the jurisdiction, to assume actual physical
custody of their **938
children. Cf.
In re Adoption
of Baby Boy L, supra,
231 Kan.
at 200-01, 643 P.2d
at 173 (finding that the ICWA did not apply since the child's father never
obtained physical custody, despite the fact that the father was unable
to do so due to his incarceration in a state penal institution for the
entire period between the birth of the child and the final judgment of
adoption); Kiowa
Tribe of Oklahoma, supra,
777 F.2d
at 589 (upholding the judgment of adoption in In
re Adoption of Baby Boy L
from collateral federal attack). For this reason, we feel that the reference
to “custody” in § 1914 refers to a parent's legal, rather than physical,
relationship with a child.
This distinction, however,
provides no basis for a claim by Wright, since he failed to establish
his status as a parent under the Act prior to the entry of final judgment
in Baby Larry's adoption. As noted previously, § 1914 limits standing
under the Act to parents and custodians of Indian children “from whose
custody such child was removed.” Similarly, § 1912(f), the other
section of the Act in which “custody” is used to define a legal rather
than physical status, speaks in terms of “the continued
custody of the child....”
(emphasis added). It appears that Congress, in passing the ICWA, was concerned
not so much with creating parental rights as protecting parental rights
that had been recognized or established through legal provisions outside
of the Act. Given the potency of the Act's provisions for overturning
child placements involving Indian children, the decision to limit standing
under the Act to those who have established a legally cognizable interest
in the child is understandable, just as our own child custody laws set
very low thresholds for standing and entitlement to notice, see
N.J.S.A.
9:17-43d , N.J.S.A.
9:3-45, but require a greater affirmative showing on the part of an unwed
father before he is entitled to a substantive presumption of paternity.
See N.J.S.A.
9:17-43a.
*182
Because Wright did nothing to establish even a legal relationship with
Baby Larry prior to the final judgment of adoption, however, he is not
a parent “from whose custody such child was removed” and therefore has
no standing to challenge Baby Larry's adoption under § 1914.
See, e.g., In
re Appeal in Maricopa County, supra,
136 Ariz.
at 533, 667 P.2d
at 233, In re
Interest of S.A.M., supra,
703 S.W.2d
at 607, In re
Adoption of Baby Boy D, supra,
742 P.2d
at 1064 (denying an unwed father who had failed to establish paternity
standing under § 1914). While an unwed father whose failure to establish
paternity prior to a final judgment of adoption was due to an inadequacy
in state-law proceedings for asserting his parental rights, rather than
his own inaction, would not lose his rights under the Act, this is not
the case here. Therefore, the only avenue available to petitioners FN8
to challenge the adoption of Baby Larry is provided by state law.
FN8.
We agree with the Appellate Division, 219 N.J.Super.
at 44, 529 A.2d
1009, that denial of the extended family's motion to vacate the adoption
was proper. The ICWA does not provide for intervention by extended family
members after the entry of a final judgment of adoption. See
25 U.S.C.
§§ 1911(c) , 1914. Furthermore, while § 1914 does provide
an Indian child's tribe standing to attack collaterally a final judgment
in a child custody proceeding (provided of course that an Indian child
is involved and the child is eligible for membership in the tribe challenging
the adoption), the Rosebud Sioux Tribe has refused to do so in this proceeding,
and, considering the passage of time and the obvious prejudice that has
resulted to both the adoptive parents and the child, any such action brought
by the tribe in the future would be barred by laches.
See Moore
v. Hafeeza,
212 N.J.Super.
399, 406, 515 A.2d
271 (Ch.Div.1986) (dismissing an attempt to establish an unwed father's
paternity on the grounds of laches).
IV.
Although the ICWA provides
no independent means by which Wright could establish his parental rights,
he still has the same right to establish paternity and assert his parental
rights as any other similarly situated unwed father would have under state
law. Furthermore, we feel that while § 1914 does not provide any
rights to Wright until he has established paternity, once he *183
has done so under state law he would be entitled to the rights provided
by the Act. It is therefore necessary to determine **939
what Wright must do in order to establish his parental rights for the
first time after a final judgment of adoption.
The final judgment of
adoption marks a turning point in the status of the natural and adoptive
parents. In a voluntary private placement adoption such as is at issue
here, the rights of the prospective adoptive parents are limited. Prior
to a final adjudication terminating the natural parents' rights, there
can be no expectation on the part of the adopting parents that the legally
tentative decision to place the child for |