No. 86-61
IN THE SUPREME COURT OF THE STATE OF MONTANA
1986
IN RE THE MATTER OF M.E.M., JR.
APPEAL FROM: District Court of the Eighth Judicial District,
In and for the County of Cascade,
The Honorable Joel G. Roth, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Vivian Marie, Montana Legal Services, Great Fall-s,
Montana
Steven L,. Bunch, Montana Legal Services, Helena,
Montana
For Respondent:
John F. Iwen, Great Falls, Montana
Leslie C. Taylor, Dept. SRS, Helena, Montana
Amicus Curiae :
Andrew M. Small for Gros Ventre & Assiniboine,
Billings, Montana
Submitted on Briefs: June 20, 1986
Decided: September 16, 1986
Filed : SFP 16 1985
* +*
Clerk
Mr. Justice William E. Hunt, Sr. , delivered the Opinion of
the Court.
Nellie Silk, the aunt of M.E.M., Jr., appeals the
decision of the Cascade County District Court denying her
motion to intervene in adoption proceedings concerning
M.E.M., Jr. and dismissing her petition for adoption.
In her appeal, Silk raises two issues:
1. Does Silk have the right to intervene in the
adoption proceedings?
2. May Silk petition for adoption?
We reverse the judgment of the District Court and remand
the cause for hearing pursuant to this opinion.
M.E.M., Jr. (hereinafter M.E.M.) is an enrolled member
of the Gros Ventre and Assiniboine Tribes of the Fort Belknap
Indian Community. He was born in Havre, Montana in March,
1981. His parents were acute alcoholics. Prior to M.E.M.'s
birth, Nellie Silk, M.E.M.'s paternal aunt, expressed her
interest in caring for the child because she was aware of her
brother and sister-in-law's parenting problems. M.E.M.'s
father verbally agreed to that arrangement.
However, following M.E.M.'s birth, Hill County
Department of Social and Rehabilitative Services (SRS) placed
him in foster care immediately upon his release from the
hospital. Temporary custody of M.E.M. was awarded to SRS on
April 22, 1981.
Upon learning that SRS had taken the child into foster
care, Silk wrote to SRS requesting that M.E.M. be placed in
her custody. She also contacted Montana Legal Services, who
wrote in her behalf to SRS.
SRS responded that because of SRS's efforts to
reintegrate the family, placement of M.E.M. with Silk would
be inappropriate. Silk is a member of the Standing Rock
Sioux Tribe and resides on the Fort Peck Reservation.
Visitation between Havre and Fort Peck was considered too
difficult. SRS indicated M.E.M. was not being placed for
adoption at that time but stated, "We [SRS] are aware of the
implications of the Child Welfare Act and she [Silk] of
course, as a member of the family would be considered if any
adoption does take place."
In May of 1983, M.E.M. 's parents' parental rights were
terminated. That termination was subsequently upheld on
appeal. In the Matter of M.E.M., Jr. (Mont. 1984), 679 P.2d
1241, 41 St.Rep. 636.
SRS notified the Fort Belknap Tribes of the termination.
Silk, however, was not informed by either SRS or the Tribes
about the termination proceedings nor was she notified of
M.E.M.'s availability for adoption or his preadoptive
placement with a non-Indian family. In June of 1984 Silk
learned through informal contacts that M.E.M. had been placed
for adoption. She went to the Fort Belknap Tribal Judge to
inquire. He informed her the child had been placed, but he
did not know where. Silk, then through Legal Services,
contacted SRS to inquire about M.E.M. SRS did not respond.
Because the termination of parental rights had taken
place in Hill County, Silk petitioned the Hill County
District Court for adoption and moved to intervene in any
previously instituted adoption proceeding. The District
Court refused Silk's filings hecause there was no action
concerning M.E.M. pending in that court. SRS continued to
withhold information concerning M.E.M. from Silk.
Later, by chance, Silk learned that adoption proceedings
had been initiated by the foster family in Cascade County.
She then filed a petition for adoption and a motion to
intervene in the Cascade County District Court on October 12,
1984. Subsequently, Silk negotiated for an open adoption
arrangement. Those negotiation efforts failed and SRS
opposed her motions. The District Court denied her motion
and petition. It also denied her later motion to amend or
alter that judgment.
In support of her motion to intervene, Silk argues that
she meets the requirements of Rule 24(a), M.R.Civ.P. which
governs the right to intervene. She further argues that in
denying her motion the District Court denied her due process
of law guaranteed by our Montana Constitution and the federal
Constitution. Because we hold Silk does have a statutory
right to intervene we need not discuss the constitutional
question.
Rule 24 (a),M.R.Civ.P. provides:
Upon timely application anyone shall be permitted
to intervene in an action: ...
(2) when the
applicant claims an interest relating to the
property or transaction which is the subject of the
action and he is so situated that the disposition
of the action may as a practical matter impair or
impede his ability to protect that interest, unless
the applicant's interest is adequately represented
by existing parties. (Emphasis added.)
We find that Silk has just such an interest in the
adoption proceedings concerning M.E.M. Her interest stems
from the provision of the Indian Child Welfare Act of 1978,
25 U.S.C. S 1901 - seq.
et (ICWA). The ICWA expresses
Congress' intention that Indian children be placed for
adoption with Indian families where that is possible.
Section 1915 (a) of the Act states:
Adoptive placements: preferences. In any adoptive
placement of an Indian child under State law, a
preference shall be given, in the absence of good
cause to the contrary, to a placement with
(1) a member of the child's extended family;
(2) other members of the Indian child's
tribe; or
(3) other Indian families.
As we have previously noted:
The Act represents Congressional recognition of the
concomitant cultural interests of Indian tribes and
Indian children; interests fundamental to the
perpetuation and preservation of their mutual and
valuable heritage. Congress found 'that an
alarmingly high percentage of Indian families are
broken up by the removal, often unwarranted, of
their children from them by nontribal public and
private agencies and that an alarmingly high
percentage of such children are placed in
non-Indian foster and adoptive homes and
institutions ... 25 U.S.C.A. S 1904 (4). We
share that concern.
In the Matter of M.E.M. (1981), 195 Mont. 329, 333, 635 P.2d
1313, 1316 (a different case than the instant case).
We have also noted in the context of proceedings under
the ICWA that the State of Montana has a strong and
independent commitment to the principles embodied in the
ICWA. As we stated in the Matter - M.E.M.,
of supra.
... Our constitution recognizes 'the distinct
and unique cultural heritage of the American
Indians and is committed in its education goals to
the preservation of their cultural integrity'.
1972 Mont. Const., Art. X, S l(2). Preservation of
Indian culture is undoubtedly threatened and
thereby thwarted as the size of any tribal
community dwindles. In addition to its artifacts,
language and history, the members of a tribe are
its culture. Absent the next generation, any
culture is lost and necessarily relegated, at best,
to anthropological examination and categorization.
- applying our state - - - Indian Child
In law and the
Act we are cognizant - - responsibility
Welfare - - - of our
- promote and protect the unique Indian cultures
to
- - state - - f u t u r e generations -
of our for a l l of
Montanans. (Emphasis added.)
In light of these federal and Montana statutory and
constitutional provisions we turn to Silk's right to
intervene. Silk is an "extended family member" within the
meaning of the ICWA § 1915(a). She has an interest created
by the preferences listed in that same section. And clearly,
the present parties to the adoption do not adequately
represent her interest. Therefore Silk meets all of the
requirements laid out in Rule 24 (a), M.R.Civ.P. for
intervention. However, the District Court ruled that Silk's
motion was not timely. Given the ignorance in which Silk was
kept, we can not see how Silk could have been more diligent
or any earlier in her petition or motion.
Therefore, we hold Silk's motion to intervene must be
granted.
Further, the paramount consideration in an adoption
proceeding is the best interests of the child involved. The
absence of SRS consent to the adoption in these circumstances
may not be found to bar Silk's claim if, in the court's
discretion, this lack of agency consent would not promote the
child's best interests.
Because we remand the case to allow Silk to intervene,
she may again file her petition for adoption to be considered
along with the foster parents' petition in the action. We,
of course, do not decide the adoptive placement of the child.
However, these competing petitions are to be considered in
light of the ICWA preferences which must be followed absent a
showing by the foster parents that good cause exists for not
following them.
Reversed and remanded.
We Concur:
eehcd, .hw