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as: 173 Misc.2d 851, 662 N.Y.S.2d 366)
Family
Court, New York County, New York.
In
the Matter of the ADOPTION OF CHRISTOPHER.
[FN1]
FN1.
Names have been changed to protect the confidentiality of the parties.
July 16, 1997.
**366 *852
Rosin & Reiniger, New York City (Douglas Reiniger, of counsel), for
adoptive parents.
Robert Rothman, New York
City, for putative father.
GLORIA SOSA-LINTNER,
Justice.
On the very eve of the
date scheduled for the finalization of this adoption, and more **367
than a month after a full evidentiary hearing regarding the best interests
of the child, the Court received notice from Court-appointed counsel for
the putative father that the putative father was a member of the Native
American Indian Traditional Abenaki of Mazipskwik and that the child was
therefore also eligible for membership. This information was provided
to the putative father's attorney by the putative father's mother, who
claims
to be the chairperson of the "tribe." Counsel sought a delay
of the finalization to determine the applicability of the Indian Child
Welfare Act of 1978 (hereinafter "ICWA") to the facts at hand.
25 U.S.C. § 1901, et
seq.
The Court granted a minimal
delay, much to the distress of the prospective adoptive parents and presumably,
the child, to investigate the validity of the grandmother's claim.
After such investigation,
the Court found that the Indian Child Welfare Act of 1978, 25 U.S.C. §
1901, et seq.,
did not apply and proceeded to finalization. This written decision elaborating
on the Court's ruling now follows.
PROCEDURAL
HISTORY
The application for the
adoption of the subject child Christopher, d.o.b. 4-6- 91, was filed on
July 17, 1996. The Petitioners are the child's maternal grandfather and
stepgrandmother. On December 10, 1996 the Court granted the Petitioners'
Ex-Parte
application for a ruling that the putative *853
biological father, who was incarcerated, was entitled to notice of the
proceedings only and that his consent was not required. Domestic Relations
Law § 111 and § 111-a. After notice pursuant to D.R.L. §
111-a was effectuated, the Court was contacted by both the putative father
and the putative paternal grandmother, who each requested that counsel
be assigned for the putative father. Robert Rothman, Esq., an experienced
adoption attorney, was
thereafter assigned to represent the putative father.
In the interim, the Court
held an abandonment hearing regarding the biological mother and entered
a finding of abandonment against her on February 26, 1997. Although personally
served, the biological mother neither appeared at any stage of the hearing
nor contacted the Court for the assignment of counsel.
[FN2]
FN2.
On June 6, 1997, more than three months after her trial date, the biological
mother appeared in the waiting area outside the courtroom seeking to vacate
the orders. The Court declined to entertain her oral request since she
could not articulate any good cause for her failure to appear when properly
served and did not offer a meritorious defense. C.P.L.R. § 5015.
She was provided with a list of pro-bono legal organizations to assist
her in making a formal application if she so chose, but additional motions
have not been made to date.
On March 24, 1997 counsel
for the putative father filed a motion to vacate the Court's December
10, 1996 ruling that the putative father's consent to the adoption was
not required. That motion was denied on June 5, 1997 in a written decision
provided to the parties and counsel.
The Court then arranged
a telephone conference on June 6, 1997 to afford the putative father,
who is incarcerated in a federal correctional institution out-of-state,
the opportunity to offer information relevant to the best interests of
the child. D.R.L. § 111-a(3). At that hearing, the putative father
was unable to offer any evidence that the adoption of the child by the
Petitioners was not in the child's best interest. He failed to take responsibility
for the illegal activities resulting in his current incarceration and
did not appreciate the dangers the child was exposed to as an infant in
his care
[FN3] . As an alternative to the adoption, he suggested that the Petitioners
continue to care for the child until his anticipated release date from
prison of March 16, 2002.
FN3.
The child was three months old when the biological mother and the putative
father were arrested on drug charges stemming from the ongoing use and
sale of illegal substances from their apartment.
*854
At the conclusion of the telephone hearing, the Court made a determination
that adoption by the Petitioners was in the child's best interests. The
finalization of the adoption was scheduled for 9:15 a.m. on July 8, 1997.
At approximately 3:00 p.m. on July 7, 1997 the Court was informed by the
putative paternal grandmother that the child was American Indian.
**368
THE INDIAN CHILD
WELFARE ACT OF 1978
The Indian Child Welfare Act of 1978 established national regulation of
Native American adoptions in an effort to prevent large numbers of Indian
children from being adopted by non-Indians and to further the cultural
integrity of the Native American tribes. 25 U.S.C. § 1901, 1902.
The Act, inter
alia, confers
exclusive jurisdiction to an Indian tribal court over any proceeding involving
a child domiciled within the reservation, requires the transfer of any
matter pending in State Court to a tribal court if the tribal court so
requests, requires notification to the tribe
as well as the parent prior to the commencement of any proceeding and
requires the exploration of Native American adoptive parents. See,
25 U.S.C. § 1911, 1912 et
seq. The Act
also mandates proof beyond a reasonable doubt for any termination of parental
rights. 25 U.S.C. § 1912(f).
After due consideration,
however, the Court has determined that ICWA does not apply to the case
at bar. The Traditional Abenaki of Mazipskwik are not recognized by the
Bureau of Indian Affairs as a federal Indian Tribe. (See,
the list of federally recognized tribes published at 53 Fed.Reg. 52829,
et seq.).
[FN4] Since the Abenaki of Mazipskwik are not a federally recognized Tribe,
the subject child of this adoption does not qualify as an Indian Child
as defined by the Indian Child Welfare Act of 1978. 25 U.S.C. § 1903(3),
(4), (5) & (8). At best, the Abenaki of Mazipskwik constitute an "Indian
Group," but their status as an Indian Group does not have the same
legal
significance as that of an Indian Tribe. Abenaki
Nation of Mississquoi, Abenaki Tribal Council, et al. v. Hughes,
805 F.Supp. 234 (D.C.Vt.1992), aff'd
2nd Cir., 990 F.2d 729.
FN4.
A recent Public Notice from the Department of the Interior dated May 17,
1996 confirms that the Abenaki Nation of Mississquoi and the Abenaki Family
Alliance, two related bands, are not
Federally recognized Tribes. 61 Fed.Reg. 24950.
Moreover, ICWA does not
apply to children born out-of-wedlock to a non-Indian mother until and
unless the putative Indian father acknowledges and establishes paternity.
Matter of the
Adoption of a Child of Indian Heritage,
543 A.2d 925, 111 N.J. 155 (1988); Matter
of the Appeal in Maricopa County Juvenile *855
Action No. A-25525,
136 Ariz. 528, 667 P.2d 228 (Ariz.App.1983). In this case, the Court made
a specific finding that the putative father's consent to the proposed
adoption was not necessary because he was never declared the legal father
of the child and never made efforts to assert paternity or establish a
parental relationship with the child. See,
this Court's prior order dated June 5, 1997; Domestic Relations Law §
111(1)(d) and § 111-a. Consequently, this Court is not bound by ICWA
requirements and properly exercised jurisdiction over the matter according
to New
York law.
Nonetheless, the Court
also finds that the essence and spirit of the ICWA requirements were largely
fulfilled, albeit unwittingly. The putative father and the putative paternal
grandmother have had notice of these proceedings since at least December,
1996. Because the putative grandmother is chairperson of her "tribe,"
the actual notice to her substantially fulfills the requirement that the
"child's tribe" be notified in addition to the Indian parent.
25 U.S.C. § 1912(a). Despite the notification, however, the putative
grandmother never asked to intervene, to have the matter transferred to
a tribal court or to be considered a custodian or adoptive parent for
the child. She also never mentioned the child's alleged heritage until
the eve of finalization, over six months after notification and after
all other attempts to block the adoption failed. In the absence of a request
or petition from the "tribe", jurisdiction was properly exercised
by the State Court. 25 U.S.C. § 1911(b).
In addition, the notice
provisions contained in 25 U.S.C. § 1912(a) and the jurisdiction
constraints contained in 25 U.S.C. § 1911 only apply to cases where
the Court "knows or has reason to know" that an Indian child
is involved. 25 U.S.C. § 1912(a). In this case, the putative father
was assigned counsel, made motions and participated in a dispositional
hearing to establish the best interests of the child. At no point during
the **369
extensive proceedings did he ever mention that he was a member of a Native
American Indian Tribe, even though the petition for adoption specifically
alleged that the child was not
a Native American, nor did the Court have any independent reason to suspect
that ICWA might apply to the case.
Given the father's willful
failure to notify the Court of his Indian heritage, the interests of justice
will not permit this Court to disregard the voluminous evidence already
received in support of the proposed adoption based simply on an informal
notification by
the putative grandmother,
who is not even a party to the proceedings. The subject child of the proceeding
*856
has never lived on a reservation, has had no exposure to his alleged Native
American heritage, and until July 7, 1997 was not even aware that he might
be Native American at all. In addition, neither the putative grandmother
nor the "tribe" made any earlier efforts to provide for the
child even though the putative Indian father has been incarcerated since
the child was three months old. Given the circumstances, the Court finds
that good cause to deny the transfer would have existed even if ICWA had
applied. 25 U.S.C. § 1911(b); Matter
of T.S., 801
P.2d 77, 245 Mont. 242 (1990), cert.
denied King
Island Native Community v. Montana Dept. of Family Services,
500 U.S. 917, 111 S.Ct. 2013, 114 L.Ed.2d 100 (1991); People
in the Interest of J.J.,
454 N.W.2d 317 (S.D.1990); People
in the Interest of A.T.W.S.,
899 P.2d 223 (Colo.App.1994), rehearing
denied, cert. denied.
Based on the foregoing, the Court finds that ICWA does not apply to the
proposed adoption and the petition for the adoption is granted.
173 Misc.2d 851, 662
N.Y.S.2d 366, 1997 N.Y. Slip Op. 97465
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