(Cite
as: 158 Misc.2d 644, 601 N.Y.S.2d 682)
Surrogate's
Court, Rensselaer County, New York.
In
the Matter of the ADOPTION OF REBECCA, Adoptive Child.
Aug. 19, 1993.
*644 Christopher
T. Maier, Troy, for petitioner.
GEORGE B. CERESIA, Jr.,
Surrogate.
The adoptive child in
the above proceeding has petitioned *645
the Court for release of certain information identifying her biological
mother and maternal grandparents to be used to verify that she is a member
of **683
the Oneida
Indian Nation. Petitioner avers that with such information she would be
able to be recognized by the Nation and "enjoy the rights of tribal
membership to which I am entitled".
Petitioner, who was born
in 1969 and adopted in 1970 in proceedings in this Court, supports her
petition with a letter from the Department of Social Services, the agency
which placed her for adoption. The letter states that her biological grandfather
had advised the Department that he was a "full blooded, native born
Indian", and her biological mother told the caseworker that her father
was "... a full blooded Oneida Indian".
OPINION
In determining whether Petitioner has made the "good cause"
showing required in New York to open adoption records (Domestic Relations
Law section 114), the Court must consider the effect of the Federal Indian
Child Welfare Act (ICWA) ( 25 U.S.C. § 1902 et seq.). The Court does
not find any reported New York cases on the subject.
Congress' declared policy
in enacting the ICWA was to set minimum standards for removal of Indian
children and their placement in foster or adoptive homes "... to
protect the best interests of Indian children and to promote the stability
and security of Indian tribes and families ..." (25 U.S.C. section
1902).
Other portions of the
ICWA (25 U.S.C.) which apply to this case state:
sec.
1917. Tribal affiliation information and other information for protection
of rights from tribal relationship; application of subject of adoptive
placement; disclosure by court
Upon
application by an Indian individual who has reached the age of eighteen
and who was the subject of an adoptive placement, the court which entered
the final decree shall inform such individual of the tribal affiliation,
if any, of the individual's biological parents and provide such other
information as may be necessary to protect any rights flowing from the
individual's tribal relationship.
sec.
1923. Effective date
None
of the provisions of this title [25 USC section 1911 et seq.], ..., shall
affect a proceeding under State law for foster care *646
placement, termination of parental rights, preadoptive placement, or adoptive
placement which was initiated or completed prior to one hundred and eighty
days after the enactment of this Act [enacted Nov. 8, 1978], but shall
apply to any subsequent proceeding in the same matter or subsequent proceedings
affecting the custody or placement of the same child.
The adoption in this
case took place in 1970, well before the effective date of Section 1923.
However, this proceeding qualifies as a "subsequent proceeding"
and therefore the ICWA provisions including Section 1917 apply (Matter
of Hanson,
188 Mich.App. 392, 396-397, 470 N.W.2d 669, 671-672;
E.A. v. Alaska,
623 P.2d 1210, 1215). Under Section 1917's provisions, Petitioner has
as a matter of law shown good cause.
The Court's file only contains the name of the biological mother and her
age on the date of Petitioner's birth. As a result, and pursuant to the
federal policy of the ICWA (25 USC sections 1902 and 1951) and in line
with New York State's policy that the Court have identifying information
about adoptive children and their ancestors (DRL 112(2-a), 114, 115(1)(a)),
the Court directed the Department of Social Services to provide its complete
file for in camera review by the Court. The Department's file contained
the additional requested information.
In this proceeding, the
biological parents have not been noticed, and their whereabouts are apparently
unknown. In a letter submitted to the Court from Oneida Indian Nation
Administrator Wanda Wood, the Court is advised that information released
to the Oneida Nation would be used only to verify if Petitioner is an
eligible Oneida member and would otherwise be kept confidential.
Accordingly, in order
to protect the biological parents' privacy rights and at the same time
assure the Petitioner's rights **684
under the ICWA, the Petition is granted but the requested information
shall be released only to the Oneida Nation Administrator with a request
that the Nation keep the information confidential (Matter
of Hanson,
supra, 188 Mich.App. at 398, 470 N.W.2d 669).
158 Misc.2d 644, 601
N.Y.S.2d 682
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