No. 92-567
IN THE SUPREME COURT OF THE STATE OF MONTANA
1993
IN THE MATTER OF INQUIRY INTO
BABY GIRL JANE DOE,
Youth in Need
APPEAL FROM: District Court of the Twelfth Judicial District,
In and for the County of Hill,
The Honorable John Warner, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Stephen A. Doherty, Monteau, Guenther & Decker,
Great Falls, Montana (Chippewa Cree Tribe)
For Respondent:
David G. Rice, Hill County Attorney, Patricia
Jensen, Deputy County Attorney, Havre, Montana;
Lawrence A. LaFountain, Attorney at Law, Havre,
Montana (Guardian Ad Litem); Thomas J. Sheehy,
Attorney at Law, Big Sandy, Montana (mother)
Submitted on Briefs: November 1, 1993
Decided: December 7, 1993
Filed:
Justice Terry N. Trieweiler delivered the opinion of the Court.
The Hill County Department of Family Services filed a petition
in the District Court for the Twelfth Judicial District in Hill
County for an order terminating the parental rights of the natural
parents of Baby Girl Jane Doe, granting permanent legal custody of
the child to the Montana Department of Family Services (DFS), and
giving the DFS the right to consent to her adoption. The Chippewa
Cree Tribe of the Rocky Boy's Indian Reservation intervened and
moved for disclosure of the natural mother's identity in order to
assure that any child placement conformed to the preferences
provided for in the Indian Child Welfare Act found at 25 U.S.C.
§§ 1901 to 1963 (1978). The District Court denied the Tribe's
motion based on the natural mother's stated preference for
anonymity and certified its order as final pursuant to Rule 54(b),
M.R.Civ.P. The Tribe appeals the District Court's order. We
reverse the District Court.
The issue on appeal is whether a parent's interest in
anonymity, which is to be considered pursuant to 25 U.S.C.
§ 1915(c) of the Federal Indian Child Welfare Act (ICWA), prevails
when in conflict with the Tribe's right to enforce the preferences
for placement of Indian children provided for in 5 1915(a) and (b)
of the Act.
FACTUAL BACKGROUND
Baby Girl Jane Doe was born at the Northern Montana Hospital
in Havre, Montana, on May 5, 1992. She is of Indian descent and
eligible for membership in the Chippewa Cree Tribe on the Rocky
Boy's rndian Reservation.
After the child's birth, Baby Girl Jane Doe's mother left the
hospital, refused to sign the birth certificate, and expressed the
intention to relinquish her to the Hill County Department of Family
Services.
On May 8, 1992, the Hill County Attorney filed a petition for
temporary investigative authority and protective services with the
District Court in Hill County on behalf of the Hill County
Department of Family Services. He alleged that Baby Girl Jane Doe
was dependent, or in danger of becoming dependent within the
meaning of § 41-3-102, MCA, by reason of her mother's conduct and
intentions and alleged that the child's father was unknown. The
petition asked that the Hill County Department of Family Services
be granted authority to take the child from the hospital for
placement in a foster home until the mother could sign a
relinquishment of parental rights, and that the public defender be
appointed as the child's guardian ad litem. On that same date, the
District Court issued its order finding Baby Girl Jane Doe
dependent within the meaning of 5 41-3-102, MCA, granting the Hill
County Department of Family Services authority to take her from the
hospital for placement in a foster home, and appointing a guardian
ad litem.
On May 10, 1992, court records indicate that the DFS entered
into an agreement with a married couple residing in Helena,
Montana, who agreed to accept the child on a foster care basis
3
until she was available for final adoption. The agreement
expressed an understanding that the DFS did not yet have legal
authority to consent to adoption because, among other reasons,
tribal consent had not yet been obtained, and the foster parents
expressed an understanding that the child may yet have to be
removed from their home and placed elsewhere.
On May 20, 1992, the child's natural mother filed with the
District Court an affidavit waiving all parental rights,
relinquishing custody of her child to the DFS, and consenting to
her adoption without further notice or consent. She indicated in
her affidavit that she had been advised of the Indian Child Welfare
Act, but for reasons of privacy, wished to remain anonymous and
requested that the court not contact her family or Tribe concerning
placement. A minute entry also indicates that she appeared in
court that day, along with the county attorney, and her child's
guardian ad litem. She was advised of her rights and the
consequences of her relinquishment. The court then concluded that
her relinquishment, waiver, and consent were given knowingly and of
her own free will.
On that date, the court also indicated that the temporary
order for protective services would remain in effect until the
child was placed permanently for adoption, but that the Chippewa
Cree Tribe should be notified that a child eligible for enrollment
as a member was being adopted.
On June 11, 1992, the Tribe was formally notified that
voluntary child custody proceedings were now pending in the
District Court for Hill County and was advised of its right to
intervene in the proceeding pursuant to 25 U.S.C. § 1911. The
Tribe was advised that the potential outcome of the proceedings,
unless there was intervention, would be an order awarding permanent
legal custody to the DFS, which would then place the child in a
permanent adoptive home.
On June 11, 1992, the District Court issued its order in which
it held that Baby Girl Jane Doe was a youth subject to termination
of the parent-child relationship within the meaning of 5 41-3-609,
MCA, and that her best interest would be served by declaring her in
need of care and awarding her custody to the DFS, along with lawful
authority for that agency to consent to her adoption. Based on
that conclusion, the District Court set a hearing on the DFS's
petition for permanent custody of Baby Girl Jane Doe. Notice of
that hearing was also sent to the Tribe.
On June 23, 1992, the Chippewa Cree Tribe of the Rocky Boy's
Reservation moved to intervene in this matter for the purpose of
assuring compliance with the ICWA. That motion was later granted
by the District Court.
On August 18, 1992, at the hearing held to consider the DFS
petition for permanent custody, the Tribe requested information
about the identity of Baby Girl Jane Doe's natural mother and her
family so that it could determine whether the child could be placed
with her extended family pursuant to the preferences provided for
in 25 U.S.C. 1915(a) and (b). Since the Tribe ' s request
conflicted with the mother's request for anonymity, the District
Court ordered further briefing. After consideration of the
parties' arguments, the District Court concluded that the mother's
right to anonymity, provided for in 25 U.S.C. 5 1915(c) outweighed
the Tribeis interest in enforcing the statutory preferences for
placement, and denied the Tribe's motion to reveal the mother's
identity.
The District Court concluded that, while bound by the
preferences provided in 25 U.S.C. 5 1915(a), it also had to give
consideration to the parent's request for anonymity under 25 U.S.C.
g 1915(c). It further concluded that based on the notice provided
to the Tribe, and the information it had already received about the
pre-adoptive family, it had the ability to satisfy itself that the
applicable preferences were being considered by the court and to
propose a more appropriate placement if it desired to do so. The
court concluded that the purposes of the ICWA could be satisfied
without revealing the identity of Baby Girl Jane Doe's natural
mother. The court also concluded that identity of the child's
father was unknown.
Final judgment was entered denying the Tribe's motion, and
that judgment was certified as final pursuant to Rule 54 (b),
M.R.Civ.P. The Tribe then appealed from the District Court's
order.
DISCUSSION
Does a parent's interest in anonymity, which is to be
considered pursuant to 25 U.S.C. § 1915(c) of the Federal Indian
Child Welfare Act (ICWA), prevail when in conflict with the Tribe's
6
right to enforce the preferences for placement of Indian children
provided for in g 1915(a) and (b) of the Act?
The Indian Child Welfare Act was enacted by Congress in 1978
for the principal purpose of protecting the integrity of Indian
tribes by preventing, where possible, the removal of Indian
children and placement in non-Indian homes. After extended
hearings over a number of years, Congress made the following
findings set forth at 25 U.S.C. g 1901, which formed the basis for
enactment of the ICWA:
(2) that Congress ... has assumed the responsibility
for the protection and preservation of Indian tribes and
their resources;
(3) that there is no resource that is more vital to the
continued existence and integrity of Indian tribes than
their children . . .
(4) 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; and
(5) that the States, exercising their recognized
jurisdiction over Indian child custody proceedings
through administrative and judicial bodies, have often
failed to recognize the essential tribal relations of
Indian people and the cultural and social standards
prevailing in Indian communities and families.
In 25 U.S.C. 5 1902 Congress also set forth a specific
declaration of congressional policy which was as follows:
The Congress hereby declares that it is the policy of
this Nation to protect the best interests of Indian
children and to oromote the stabilitv 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. [Emphasis added].
Section 1911(c) of the Act provided that:
In any State court proceeding for the foster care
placement of, or termination of parental rights to, an
Indian child, the Indian custodian of the child and the
Indian child's tribe shall have a right to intervene at
any point in the proceeding.
In order to make intervention more meaningful, 5 1912(c)
provides that:
Each party to a foster care placement or termination of
parental rights proceeding under State law involving an
Indian child shall have the right to examine all reports
or other documents filed with the court upon which any
decision with respect to such action may be based.
It is apparent from the plain language of the aforementioned
statutes that a principal purpose of the ICWA is to protect the
stability of Indian tribes by preventing adoption of Indian
children by non-Indians where placement in Indian families is
possible. It is also apparent that by granting tribes the right to
intervene as parties in any proceeding involving the placement of
Indian children, Congress intended to recognize the strong interest
of tribes, as distinct from their individual members, in the
placement of Indian children. Congress's intent is further
clarified by 25 U.S.C. 5 1915 which gives rise to the dispute in
this case. Subsections (a) and (b) of 5 1915, which are relied on
by the Tribe, provide in relevant part as follows:
(a) .. .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.
(b] . . . In any foster care or pre-adoptive
placement, a preference shall be given, in the absence of
good cause to the contrary, to a placement with--
(i) a member of the Indian child's extended familv:
(ii) a foster home licensed, approved, or
specified by the Indian child's tribe;
(iii) an Indian foster home licensed or approved
by an authorized non-Indian licensing authority; or
(iv) an institution for children approved by an
Indian tribe or operated by an Indian organization
which has a program suitable to meet the Indian
child's needs. [Emphasis added].
Subsection (c) of § 1915, which was invoked by Baby Girl Jane
Doe's natural mother and relied on by the District Court, provides
in relevant part that:
Where appropriate, the preference of the Indian child or
parent shall be considered: Provided, That where a
consenting parent evidences a desire for anonymity, the
court or agency shall give weight to such desire in
applying the preferences.
On appeal, the Tribe contends that its right to intervene and
advocate enforcement of the statutory preferences for placement is
meaningless when the first preference is for placement with the
child's extended family and the court will not reveal the identity
of the child's natural parent.
The DFS, on the other hand, asserts, and the District Court
agreed, that the natural parent's interest in anonymity has greater
significance and it is binding on the court when it is invoked.
In order to reconcile two provisions of the ICWA, which are
potentially in conflict, we must determine how to best effectuate
the principal purpose for which the Act was created. Since we are
construing a federal act, we look for guidance to the United States
Supreme Court's leading and most recent interpretation found in
1597, 104 L. Ed. 2d 29. In that case, twin babies were born to
Indian parents who were residents of their reservation. The birth
took place at a point 200 miles distant from the reservation. The
parents consented to adoption by non-Indian parents, and an
adoption decree was entered in the state court.
The tribe to which the parents belonged moved the court to
vacate the adoption decree on the ground that under the ICWA
exclusive jurisdiction was vested in the tribal court. That motion
was denied on the basis that the children's parents had gone to
great lengths to see that they were born off the reservation and
had expressed a preference for the adoption that was decreed. The
Mississippi Supreme Court affirmed the decision of its chancery
court, and the U.S. Supreme Court granted plenary review.
In its decision to reverse the Mississippi court, the U.S.
Supreme Court discussed at length the legislative history of the
ICWA. Based on that history, it concluded that:
The most important substantive requirement imposed on
state courts is that of 5 19151a). which. absent "sood
causegt the contrary. mandates that adoptive olacements
to
be made oreferentiallv with (1) members of the child's
extended family, (2) other members of the same tribe, or
(3) other Indian families.
The ICWA thus, in the words of the House Report
accompanying it, "seeks to protect the rights of the
Indian child as an Indian and the rights of the Indian
community and tribe in retaining its children in its
society." House Report, at 23, U.S. Code Cong. & Admin.
News 1978, at 7546. It does so by establishing "a
Federal policy that, where possible, an Indian child
should remain in the Indian community, ibid., and by
making sure that Indian child welfare determinations are
not based on "a white, middle-class standard which, in
many cases, forecloses placement with [an] Indian
family.'* [Emphasis added].
Mississippi Choctaw, 490 U.S. at 36-37, 109 S. Ct. at 1602, 104
L. Ed, 2d at 39.
In arriving at its decision, the U.S. Supreme Court found it
necessary, as we must, to reconcile the rights and preferences of
.
;ndividual tribal members with the clear statutery rights of the
tribe. In doing so, it made the following points, which are set
forth at length because of their particular significance to our
conclusion:
Nor can the result be any different simply because
the twins were "voluntarily surrendered" by their mother.
Tribal jurisdiction under g 1911(a) was not meant to be
defeated by the actions of individual members of the
tribe, for Conqress was concerned not solely about the
interests of Indian children and families, but also about
the impact on the tribes themselves of the l a m e numbers
of Indian children adopted bv non-Indians. See 25 U.S.C.
§ 1901(3) [25 U.S.C.S. 5 1901(3)] ("[Tlhere is no
resource that is more vital to the continued existence
and integrity of Indian tribes than their childrenm),
1902 ("promote the stability and security of Indian
tribesw). The numerous prerogatives accorded the tribes
through the ICWA's substantive provisions, e.g.,
g g 1911(a) (exclusive jurisdiction over reservation
domiciliaries), 1911(b) (presumptive jurisdiction over
non-domiciliaries), 1911(c) (right of intervention),
1912(a) (notice), 1914 (right to petition for
invalidation of state-court action) , 1915 (c) (right to
alter presumptive placement priorities applicable to
state-court actions), 1915(e) (right to obtain records),
1919 (authority to conclude agreements with States),
must, accordingly, be seen as a means of protecting not
only the interests of individual Indian children and
families, but also of the tribes themselves.
In addition, it is clear that Congressc concern over
the placement of Indian children in non-Indian homes was
based in part on evidence of the detrimental impact on
the children themselves of such placements outside their
culture. Consress determined to subject such placements
to the ICWAcs iurisdictional and other provisions, even
in cases where the parents consented to an adoption.
because of concerns qoins beyond the wishes of individual
parents. As the 1977 Final Report of the congressionally
established American Indian Policy Review Commission
states, in summarizing these two concerns, "lrlemoval of
Indian children from their cultural settinq seriously
imwacts a lonq-term tribal survival and has damaqinq
social and ~svcholouical impact on many individual Indian
children." Senate Report, at 52.
These congressional objectives make clear that a
rule of domicile that would permit individual Indian
parents to defeat the ICWA's jurisdictional scheme is
inconsistent with what Congress intended. See In re
Adoplir)nofCI~iEdofIndianHeritage, 111 N.J. 155, 168-171, 543
A.2d 925, 931-933 (1988). The appellees in this case
argue strenuously that the twinsc mother went to great
lengths to give birth off the reservation so that her
children could be adopted by the Holyfields. But that
was precisely part of Congress' concern. Permitting
individual members of the tribe to avoid tribal exclusive
iurisdiction bv the simple expedient of qivins birth off
the reservation would, to a larse extent, nullify the
purpose the ICWA was intended to accomplish. [Footnotes
omitted; Emphasis added].
Msispi Choctaw, 490 U.S, at 49-51, 109 S. Ct. at 1608-10, 104
issip
L Ed. 2d at 47-48.
.
It is clear from the legislative findings and expression of
policy, and the U.S. Supreme Court's application of the ICWA in
Msispi Choctaw, that the principal purposes of the Act are to
issip
promote the stability and security of Indian tribes by preventing
further loss of their children; and to protect the best interests
of Indian children by retaining their connection to their tribes.
The principal statutory method by which these purposes are
achieved is the order of preferences set forth in 25 U.S.C.
$
. 1915fa) and (b), and the Tribe's right to intervene in order to
enforce those preferences. While a parent's wish for anonymity can
be considered where not otherwise in conflict with the Act's
principal purposes, it cannot be allowed to defeat the purposes for
which this Act was created.
To give primary importance to the mother's request for
anonymity would defeat the Tribe's right to meaningful intervention
and possibly defeat application of the clear preference provided by
statute for placement of Baby Girl Jane Doe with a member of her
extended family.
The dissent concedes that the Tribe had a right to intervene
in this proceeding and that the order of preference applies to
either adoptive placement, pre-adoptive placement, or placement for
foster care. However, the dissent contends that since the DFS
already obtained a temporary custody award and placed the child in
foster care before the Tribe was notified and had an opportunity to
object, that the Tribe cannot now object to an improper placement,
even though they are now a party to this action. The dissent goes
on to argue that the court had not yet considered permanent
adoptive placement, and therefore, the Tribe's concerns about the
mother's identity are premature. However, the Tribe's rights would
be hollow indeed if they were lost by failure of the State to
timely notify it of foster placement. Furthermore, the proceeding
which gave rise to this appeal was not just a proceeding for
termination of parental rights--it was also a proceeding to show
cause why permanent custody of Baby Girl Jane Doe should not be
awarded to the DFS with authority to consent to her adoption
without further notice. The possible outcome from this proceeding
was pre-adoptive placement of the child with the DFS on a permanent
basis, as opposed to the temporary custody which had previously
been granted. This is exactly the kind of pre-adoptive placement
contemplated by 25 U.S.C. § 1915(b).
Therefore, we reverse the order of the District Court and hold
that 25 U.S.C. 3 1915(a) and (b) requires that in this proceeding
the Chippewa Cree Tribe of the Rocky Boy's Indian Reservation be
informed of the identity of Baby Girl Jane Doe's natural mother and
her extended family. To the extent possible, without interfering
with the aforementioned rights of the Tribe, the natural mother's
right to privacy should be respected throughout these proceedings.
This case is remanded to the District Court for further
proceedings consistent with this opinion.
We concur:
Chief Justice
Justices
Justice Karla M. Gray, concurring in part and dissenting in part.
I agree entirely with the Court's determination that the
Tribe's right to enforce the preferences for placement of Indian
children provided in the Indian Child Welfare Act outweighs a
parent's request for anonymity. To allow a parent's wish for
anonymity to outweigh the Tribe's right to ensure that the
statutory preferences are applied would defeat the purposes of the
Act.
I respectfully dissent, however, from the Court's holding that
the Act requires that the identity of Baby Girl Jane Doe's mother
be revealed "in this proceeding.'' As the Court correctly states,
5 1911(c) gives the Tribe the right to intervene in this proceeding
for termination of parental rights. It is my view, however, that
the proceeding at issue here is neither an adoptive placement under
5 1915(a), nor a foster care or pre-adoptive placement under
5 1915(c) . No placement--either foster care, pre-adoptive
placement, or adoptive placement--is occurring in this proceeding
for termination of parental rights. Pursuant to Montana
procedures, the foster care or pre-adoptive placement occurred
almost immediately after Baby Girl Jane Doe's birth. No court
proceedings were necessary for that placement under Montana law.
The adoption proceeding concerning this child is yet to come.
Indeed, given Montana statutes and the location of the residence of
the potential adoptive parents, the actual adoption proceeding will
take place in another judicial district. It is in that proceeding,
I submit, that the Tribe can and should assert its rights to the
identity of this child's mother in order to ensure proper
application of the Act's preferences. Requiring the Tribe to do so
at that point is entirely consistent with both the Act and the U.S.
Supreme Court's conclusion in Mi~sisSiWWiChoctaw, quoted by the
Court today, that "[tlhe most important substantive requirement on
state courts is that of 5 1915(a), which, absent 'good cause' to
the contrary, mandates that adoative Dlacements be made
preferentially with (1) members of the child's extended family, (2)
other members of the same tribe, or (3) other Indian families."
(Emphasis added.) For that reason, I believe that it is
inappropriate to consider the merits of the issue raised by the
parties, namely, whether the interests of the Tribe in knowing the
identity of the parent outweigh the parent's interest in anonymity.
Justice John Conway Harrison joins in the foregoing concurrence and
dissent of Justice Karla M. Gray.
Chief J u s t i c e J. A. Turnage j o i n s i n t h e o p i n i o n o f J u s t i c e Gray.
.A
December 7, 1993
CERTIFICATE OF SERVICE
1 hereby certify that the following order was sent by United States mail, prepaid, to the following
named:
Stephen A. Doherty
Monteau, Guenther & Decker
410 Central, Ste. 522
Great Falls, MT 59401
David G. Rice, County Attorney
Patricia Jensen, Deputy
P.O. Box 912
Havre, MT 59501
Lawrence LaFountain
Attorney at Law
305 Third Ave.
Havre, MT 59501
Thomas Sheehy
Attorney at Law
P.O. Box 511
Big Sandy, MT 59520
Brenda Top Sky
Chippewa Cree Tribe
Rocky Boy Route, Box 544
Box Elder, MT 59521
ED SMITH
CLERK OF THPSUPREME COURT