(Cite
as: 356 Pa.Super. 555)
Superior Court of Pennsylvania.
In
re ADOPTION OF K.L.R.F.
Appeal
of Victoria Red Fox WOODS, Natural Mother.
Argued
Jan. 30, 1986.
Filed
Sept. 8, 1986.
**34
*556
James P. O'Connell, Aliquippa, for appellant.
Before CIRILLO, President
Judge, and DEL SOLE and BECK, JJ.
*557
CIRILLO, President Judge:
This
is an appeal from an order terminating the parental rights of appellant.
Appellant is an American Indian. The child involved is also an American
Indian. Appellant was the adoptive parent of the child until the hearing
court terminated her parental rights. This case is governed by the Federal
Indian Child Welfare Act of 1978 (hereinafter “the Act”) and is one of
first impression in this state. After careful review of the record in
this case and an analysis of the governing federal statute, we agree with
appellant that reversal is required.
The Act was designed to
promote a two-fold national policy: the protection of the best interests
of Indian children, and the promotion of stable and secure Indian tribal
entities. 25 U.S.C.A. § 1902. The Act establishes minimum federal
standards applicable to child custody proceedings in order to prevent
the separation of Indian children from family and tribal heritage. As
noted by one of the few courts faced with the task of interpreting the
provisions of the Act:
Hearings
conducted in 1974 before the Senate Committee on Indian Affairs revealed
a pattern of discrimination against American Indians in child welfare
and child custody. Testimony indicated that for decades officials had
removed a disproportionately large number of Indian children from their
homes and reservations, and had placed them in non-Indian homes and that
many of the removals were unwarranted because officials showed too little
deference to Indian cultural norms and denied due process in child custody
proceedings. These practices deprived many children of their tribal and
cultural heritage.
To
reverse this erosion of Indian family life, Congress enacted the Act.
See
H.R.Rep. No. 1386, 95th Cong., 2d Sess. 8, reprinted in [1978] U.S.Code
Cong. & Ad.News 7530.
Matter
of Appeal in Pima County Juvenile Action No. S-903,
130 Ariz. 202, 635 P.2d 187 (App.1981).
*558
The Act is based on the fundamental assumption that it is in the Indian
child's best interest that its relationship to the tribe be protected.
Pima, supra;
see also Indian Child Welfare Act of 1978: Provisions and Policy,
25 S.O.L.Rev. 98 et
seq. (1980).
The Act defines certain
procedures to be followed in state court proceedings involving Indian
children and, as discussed below, provides a mechanism whereby an Indian
parent may withdraw his or her consent to a foster care placement and
effect a return of the Indian child. FN1
Appellant contends **35
that this statutory mechanism was ignored or misapplied in the instant
case and challenges the hearing court's construction of that portion of
the Act. FN2
As a corollary, appellant urges that the spirit and intent of the Act
were ignored. Appellant also contends that the trial *559
court erred in denying petitions to transfer the case to the tribal court
pursuant to 25 U.S.C.A. § 1911(b) FN3.
FN1.
25 U.S.C.A. § 1913(b) reads:
(b)
Foster care placement; withdrawal of consent
Any
parent or Indian custodian may withdraw consent to a foster care placement
under State law at any time and, upon such withdrawal, the child shall
be returned to the parent or Indian custodian.
FN2. Appellant also raises
several other issues, which, in light of our disposition of this issue,
are moot and need not be addressed specifically. The issues which we do
not address are: (1) whether the hearing court ignored the mandate of
25 U.S.C.A. § 1911(b) by refusing to transfer the proceedings to
the tribal court; (2) whether the hearing court ignored 25 U.S.C.A. §
1912(d) by not requiring a showing that appellees took steps to prevent
the breakup of the Indian family; (3) whether the hearing court ignored
25 U.S.C.A. § 1912(f) by not requiring the appellees to produce qualified
expert witnesses who proved, beyond a reasonable doubt, that serious emotional
or physical harm would be done to the child if it was forced to live apart
from its tribe; (4) whether appellant's conduct evidenced a settled purpose
of relinquishing her parental claim pursuant to 23 Pa.C.S.A. § 2511(a)(1)
; and (5) whether 25 U.S.C.A. § 1913(c) affords a basis for appellant's
withdrawal of consent. Although these issues are rendered moot by our
holding herein, we note the following for purposes of allocatur. Had our
disposition of appellant's 25 U.S.C.A. § 1913 issue been in favor
of appellee instead of appellant, we would have upheld the hearing court's
disposition of all other issues raised and affirmed the order in question
on the basis of the hearing court's scholarly opinion. We part company
with the trial court solely on the basis of its disposition of the issue
specifically addressed herein.
FN3. The concurrence would
hold that the hearing court erred in refusing to transfer the case to
the tribal court. We recognize that the hearing court apparently failed
to consider the most recently promulgated guidelines published at 44 Fed.Reg.
67584, 67591 (1979). However, as noted by the dissent, the guidelines
are not binding upon the trial court in its determination of whether “good
cause” not to transfer exists. Therefore, under the circumstances present
at the time of the petitions, we feel that the court did not abuse its
discretion in refusing to transfer the case.
The facts of this case
are extremely complex. They may be summarized as follows. Appellee is
a Caucasian residing in Beaver County, Pennsylvania, along with the Indian
child who is the subject of this action, another Indian child whom she
has adopted, and a Caucasian adopted child. Appellant was, until the hearing
court terminated her parental rights, the adoptive Indian parent of the
child. Appellant and the child are both enrolled as members in the Cheyenne
River Sioux Tribe whose reservation is located in South Dakota. The child
was born on the reservation in 1979.
Appellee's first contact
with appellant was in 1980 when an Indian child was placed with appellee
for purposes of adoption. This adoption was finalized in 1981. Prior to
that time appellant contacted appellee to ask her to adopt a second child,
who is the subject of the present action. Appellee obtained custody of
the child on November 17, 1981, at which time appellant provided her with
a written notice that appellant was to have “temporary and complete custody”
of the child.
In March, 1982, appellee
filed an adoption petition in the Cheyenne River Sioux Tribal Court in
South Dakota for the adoption of the child. This petition was withdrawn
at the request of appellant. In May, 1982, and again in August, 1982,
appellant informed appellee that she wanted appellee to adopt the child.
In the fall of 1982, appellee's attorney mailed consent forms to appellant
and the adoptive Indian father of the child. The adoptive Indian father
is not a party to this appeal. The father indicated that he would not
consent to the adoption. Appellant and the adoptive Indian father were
either divorced or separated at this time.
*560
In November, 1982, appellant wrote to appellee stating that she might
have to ask that the child be returned, but did not request a return at
that time. During November, 1982, appellant indicated to appellee in writing
and in a telephone conversation that the reason for her abruptly altered
desire with regard to the adoption was that she feared that the adoptive
Indian father might obtain custody of the child.
**36
Between November, 1982 and March, 1983, appellant informed appellee on
three different occasions that she was planning to come to Pennsylvania
to retrieve the child. Each time, she changed her mind and did not make
the trip. In February, 1983, appellant indicated in a letter that she
still had not decided whether to take the child back. In March, 1983,
appellant again stated that she planned to come to Pennsylvania but when
asked by appellee's husband whether she intended to take the child, she
responded that she wished to talk with him.
The court found “no direct
proof” that appellant traveled to Pittsburgh to claim the child in March,
1983. As stated by the court in a footnote to its opinion:
Although
counsel for Respondent states in his brief at p. 2 that V.R.F.W. did travel
to Pennsylvania in March, 1983, to get her daughter, we do not believe
the evidence is so clear. The only testimony in this regard is that of
D.A.E. also stated that it was her opinion that if V.R.F.W. did come to
Pittsburgh, she did not leave the airport or call the E.'s attorney; she
did leave a message at the E.'s home stating that she was in Pittsburgh.
Thus, there is not any direct proof that V.R.F.W. was in Pennsylvania
and one can only surmise as to her reason for coming if she did come.
On March 17, appellee
and her husband filed an involuntary termination petition in Pennsylvania.
On April 12, 1983, appellant executed a revocation of the temporary guardianship.
This information was conveyed to appellee's counsel by letter dated April
18, 1983. On April 19, 1983, appellant filed a petition to transfer the
proceedings to the *561
Tribal court. This petition was denied by the Pennsylvania court. Hearings
were held on the involuntary termination petition and appellant's parental
rights were terminated by the order of September 11, 1984. Appellant took
no part in the termination proceedings although she was represented by
counsel.
We begin our analysis
by noting that appellant does have standing to rely upon and demand compliance
with the provisions of the Act. “Parent” is defined in § 1903(9)
as:
[A]ny
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.
By
the statute's definition of “parent”, appellant, although not the natural
parent of the Indian child, is the adoptive parent of the child, and as
such qualifies as a parent entitled to seek the protections afforded by
the Act.
We turn next to appellant's
contention that the hearing court ignored or misconstrued certain provisions
of the Act which require the return of an Indian child to its parents
upon the parents' withdrawal of consent to a foster care placement. Section
1913(b) provides that:
Any
parent or Indian custodian may withdraw consent to a foster care placement
under State law at any time and, upon such withdrawal, the child shall
be returned to the parent or Indian custodian.
Section 1903(1)(i) defines
“foster care placement” as:
[A]ny
action removing an Indian child from its parent or Indian custodian for
temporary placement
in a foster home or institution or the home of a guardian or conservator
where the parent or Indian custodian cannot
have the child returned upon demand, but where parental rights have not
been terminated.
(Emphasis
added). Appellant executed a revocation of the custodial arrangement on
April 12, 1983. This information was conveyed to counsel for appellant
on April 18, 1983. In *562
holding that § 1913(b) was inapplicable to the facts of the instant
case the hearing court stated:
We
cannot help but notice that these two provisions are contradictory; one
provides**37
that consent can be withdrawn at any time with regard to a foster care
placement; and the other just as explicitly states that in a foster care
placement, the parent or Indian custodian cannot have the child returned
upon demand. We need not resolve this inconsistency in the case before
us. However, we note that if § 1903 is in fact what the legislature
intended the definition of “foster care placement” to be, then §
1913(b) can be given no effect because a foster care placement by definition
precludes the possibility of a parent being entitled to the return of
the child upon demand. If § 1903 is construed to be erroneous with
regard to the parent's ability to demand return of the child and §
1913(b) is construed to be a valid provision, § 1913 still would
not apply to the instant case because the placement which was made was
intended to be permanent; adoption was the ultimate objective. Section
1913(b) applies only to temporary placements.
We construe § 1913(b)
as applying to situations such as the instant case, wherein a consensual
foster care placement was made in the first place and there is no inherent
bar to a withdrawal of the consent. In so doing, we are guided by the
presumption that the drafters of the statute did not intend a result that
is absurd or impossible of execution, McKinney
v. Board of Commissioners of Allegheny County,
488 Pa. 86, 410 A.2d 1238 (1980); and the presumption that the drafters
did intend the entire statute to be effective and certain. In
re Borough of Lemoyne,
176 Pa.Super. 38, 107 A.2d 149 (1954). Further, statutes enacted to benefit
American Indians must be liberally construed with all doubts resolved
in favor of the Indian seeking its benefits or protections. Preston
v. Heckler,
734 F.2d 1359 (9th Cir.1984) ; Bryan
v. Itasca Co., Minnesota,
426 U.S. 373, 96 S.Ct. 2102, 48 L.Ed.2d 710 (1976). With these principles
in mind, we cannot conclude that the drafters*563
of the Act intended § 1903(1)(i) and § 1913(b) to interact in
such a way as to nullify the withdrawal of consent provision in §
1913(b). Therefore, we hold that the definitional language in § 1903(1)(i)
has no effect upon an Indian parent's ability to demand a return of the
child pursuant to § 1913(b).
We agree with the hearing
court that the right to withdraw consent pursuant to § 1913(b) exists
only in temporary placement situations. However, we do not agree with
that court's conclusion that the placement in the instant case was permanent
simply because adoption may have been, at one time, the “ultimate objective”
of the parties. If parental rights have not been terminated, settled Pennsylvania
case law establishes that consent to adoption may be withdrawn at any
time before the entry of the final decree of adoption. In
re Adoption of R.W.B.,
485 Pa. 168, 401 A.2d 347 (1979).
See also Commonwealth
ex rel. Grimes v. Yack,
289 Pa.Super. 495, 433 A.2d 1363 (1981). Therefore, a purely consensual
placement is, by necessary implication, merely temporary for the purposes
of § 1913(b) until such time as a final decree fixing parental rights
and awarding permanent custody is entered.
The facts of this case
support our holding that the placement was merely temporary. The hearing
court specifically found that appellant, on or about November 17, 1981
“... provided [appellee] with a written notice that [appellees] would
have temporary
and complete custody of K.L.R.F.” (Emphasis added). The hearing court
also found as a fact, that it was appellees' understanding, based upon
conversations with appellant, that the custodial arrangement was to be
“temporary” only from the standpoint that upon completion of the adoption
proceeding, appellees' custody would be permanent. This, however, does
not change the temporary status of the placement for the purpose of applying
§ 1913(b) because of the ever present risk that appellant might change
her mind at any time and withdraw her consent to the custodial placement,
the adoption, or both. **38
Indeed, even if the initial arrangement could *564
be considered “permanent”, and thereby not subject to the mandate of §
1913(b), any such permanence ended during the period between November,
1982 and March, 1983. The hearing court found that during this period
appellant informed appellees by letter of her “... abruptly altered desire
with regards to the adoption” and also that appellant stated, on three
occasions, that she was planning to travel to Pennsylvania to retrieve
the child. Obviously, the custodial situation changed rapidly from one
of relative stability to one which, at best, was tenuous and temporary
during the five months preceding appellees' involuntary termination action.
Adoption was no longer appellant's ultimate objective.
We hold that § 1913(b)
applies to the case herein and, accordingly, that appellant had the right
and ability to withdraw her consent to the placement and to effect an
immediate return of the child. In so doing, we are mindful of the fact
that K.L.R.F. will be uprooted from her home and familiar surroundings.
This makes our task all the more difficult. However, the mandate of §
1913(b) is clear, as are the principles and policies underlying the Act
itself. The overriding concern of Congress was the maintenance of the
family and tribal relationships existing in Indian homes. Matter
of Adoption of Baby Boy L.,
231 Kan. 199, 643 P.2d 168 (1982). The Act is based upon the fundamental
assumption that it is in the Indian child's best interest that its relationship
to the tribe be protected. Matter
of Appeal in Pima County Juvenile Action No. S-903,
130 Ariz. 202, 635 P.2d 187 (App.1981). The Act unquestionably provides
a higher standard of protection to the rights of Indian parents in termination
proceedings. Pima,
supra; E.A.
v. State, 623
P.2d 1210 (Alas.1981). To promote the purposes of the Act, Congress saw
fit to include § 1913(b), which clearly allows Indians to withdraw
their consent to a pre-adoptive or foster placement. This is exactly what
appellant did. As stated by the Court in Pima,
supra in construing
§ 1913(c) which grants a similar right of withdrawal:
*565
When an Indian child within the purview of the Act is involved, adoption
agencies and prospective adoptive parents must be held to assume the risk
that a parent such as appellant might change her mind before the adoption
is finalized.
Id.
130 Ariz. 202 at 208, 635 P.2d 187 at 192.
The order terminating
appellant's parental rights is set aside. The case is remanded to the
hearing court with instructions to enter an appropriate order directing
appellee to return appellant's child to appellant.
DEL SOLE, J., files a
concurring opinion.
BECK,
J., dissents.
DEL
SOLE, Judge, concurring:
I
agree with the majority that the custodial arrangement under the facts
of this case was temporary for the purposes of applying § 1913(b)
and therefore Appellant had the right to withdraw her consent to the placement.
The order terminating Appellant's parental rights must therefore be set
aside.
I believe, however, that
the refusal of the hearing court to transfer the proceedings to the tribal
court pursuant to 25 U.S.C.A. § 1911(b) merits discussion.
Appellant, and subsequently
the Cheyenne River Sioux Tribal Court sought transfer of these proceedings
to the Tribal Court based on the Indian Child Welfare Act (ICWA) 25 U.S.C.A.
§ 1901 et seq. The Act states in pertinent part:
Transfer
of proceedings; declination by tribal court.
In
any State court proceeding for ... 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 *566
**39
... upon the petition of either parent or the Indian child's tribe....
25
U.S.C.A. § 1911(b).
On January 9, 1984, the
trial court denied the Appellant's application for transfer of the proceedings
finding good cause to deny transfer and on September 11, 1984, the application
of the tribe for transfer was denied for the reasons set forth in the
January 9, 1984 order.
I agree with the trial
court that what constitutes “good cause to the contrary” has not been
definitively established and I have located no Pennsylvania case law interpreting
the ICWA. However, other jurisdictions and authority have considered the
term. The Arizona Court of Appeals in Matter
of Appeal in Pima County,
130 Ariz. 202, 635 P.2d 187 (App.1981) found the trial court should have
deferred to tribal jurisdiction as:
Evidence
concerning the mother's fitness as a parent would be more readily available
in Montana. Qualified expert witnesses as to whether custody in the mother
would likely result in serious emotional or physical damage to the child
would also be more accessible as expert witnesses lacking knowledge of
the tribal culture and values may not be “qualified” to give an opinion.
Id.
at 207, 635 P.2d at 192.
The court further indicated
that:
Accessibility
to proof would seem to be the principal factor on which state courts could
rely to retain jurisdiction. Indian Child Welfare: A Jurisdictional Approach,
21 Ariz.L.Rev. 1123, 1143 (1979). The author points out: (1) If the tribe
desires that the case be heard by the tribal court, distance from the
reservation in and of itself would not be sufficient “good cause” for
the state court to refuse to transfer the proceedings despite the expense,
and (2) in most instances an Indian parent will call witnesses residing
on the reservation to rebut evidence as to parental unfitness and the
state court must make a *567
determination as to which party is most able to bear the expense of producing
witnesses in distant courts. The only justification for retention of jurisdiction
in Arizona is the presence of the child and the prospective adoptive parents.
However, the issue in these termination proceedings is not the fitness
of the adoptive parents but rather the unfitness of the parent whose relationship
is sought to be severed.
Id.
at 206-07, 635 P.2d at 191-192.
But
cf. In Interest
of J.R.H.,
358 N.W.2d 311 (Iowa 1984) (good cause to deny transfer may arise from
geographical obstacles).
In the case sub judice
the trial court indicated:
Additional
help in ascertaining the factors to be included in considering “good cause
to the contrary” can be found in 44 Fed.Reg. 24000, 42001 R.G. (i) (1979).
Therein, it was stated that good cause would include, but not be limited
to the following elements:
1.
Whether or not the child's biological parents were unavailable;
2.
Whether or not an Indian custodian has been appointed;
3.
How much contact the child has had with the tribe for a significant period
of time;
4.
Whether or not the child has resided on the reservation for a significant
period of time;
5.
If the child is over 12 years old, whether he or she has indicated an
opposition to the transfer.
(Trial
Court Opinion at 9).
Applying these guidelines:
in
addition to the fact that there is credible testimony that if the child
or the Respondent were to have to travel to South Dakota, the child's
physical and mental health would most likely be seriously impaired, and
also considering that the child has had very little conscious association*568
with the tribe and the Indian family during her life, we find there is
good cause to retain jurisdiction....
(Trial
Court Opinion at 10).
I believe the trial court
erred in applying the above listed factors. Those factors **40
constitute an early form of guidelines published by the Secretary of the
Interior.
All
five criteria that were listed in the earlier version of the guidelines
were highly controversial. Comments on the first two criteria were almost
unanimously negative.... These criteria were criticized as irrelevant
and arbitrary.... Although there was some support for the third and fourth
criteria, the preponderance of the comment concerning them was critical....
It
is recommended that in most cases state court judges not be called upon
to determined (sic) whether or not a child's contacts with a reservation
are so limited that a case should not be transferred.
Guidelines
for State Courts: Indian Child Custody Proceedings, C. 3. Commentary,
44 Fed.Reg. 67584, 67591 (1979).
The revised Guidelines
state:
Determination
of Good Cause to the Contrary
(a)
Good cause not to transfer the proceeding exists if the Indian child's
tribe does not have a tribal court....
(b)
Good cause not to transfer the proceeding may exist if any of the following
circumstances exists:
(i)
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.
(ii)
The Indian child is over twelve years of age and objects to the transfer.
(iii)
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.
(iv)
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.
*569
(c) Socio-economic conditions and the perceived adequacy of tribal or
Bureau of Indian Affairs social services or judicial systems may not be
considered in a determination that good cause exists.
(d)
The burden of establishing good cause to the contrary shall be on the
party opposing the transfer.
Guidelines
for State Courts; Indian Child Custody Proceedings, C. 3 Determination
of Good Cause to the Contrary, 44 Fed.Reg. 67584, 67591 (1979). FN1
FN1.
Although the Guidelines are not published as regulations and therefore
have no binding legislative effect on this court, I find the Department
of the Interior's interpretation of the term “good cause” to be beneficial
in considering this matter.
Applying the revised Guidelines
to the present case, it is uncontroverted that the tribe has a tribal
court; that the proceeding was not at an advanced stage when the petition
to transfer was received; the child was under five years of age. Although
the child may have had little contact with the tribe, the commentary to
the Guidelines, previously mentioned, recommends against state court judges
basing a transfer request on a child's limited tribal contact. The determinative
factor under the guidelines therefore would be whether 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 trial court
indicated that many persons who would be called as witnesses would be
from Pennsylvania. However, I agree with the Arizona Court of Appeals
that, “the issue in these termination proceedings is not the fitness of
the adoptive parents but rather the unfitness of the parents whose relationship
is sought to be
severed.” Matter
of Appeal in Pima County, supra,
130 Ariz. at 207, 635 P.2d at 192. Evidence concerning the parent's fitness
is the relevant inquiry. Transfer of this case to the Tribe pursuant to
25 U.S.C.A. § 1911(b) would have been in my judgment in keeping with
the declared policy of Congress “to protect the best interests of Indian
children and to promote stability and security of Indian tribes and families
...” 25 U.S.C.A.*570
§ 1902. Failure of the **41
hearing court to transfer the proceedings was an abuse of discretion.
Pa.Super.,1986.
In
re Adoption of K.L.R.F.
356
Pa.Super. 555, 515 A.2d 33
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