Matter of Adoption of Riffle

                                      NO.     96-076
            IN THE SUPREME COURT OF THE STATE OF MONTANA
                                            1996



IN THE MATTER OF THE ADOPTION
OF JESSICA LYNN RIFFLE,
           a Youth in Need of Care



APPEAL   FROM:     District   Court of the Tenth Judicial    District,
                   In and for the County of Fergus,
                   The Honorable   John R. Christensen,   Judge presiding.


COUNSEL OF RECORD:
            For   Appellants:
                   Jerrold      L.   Nye;    Nye & Meyer,      Billings,      Montana

            For   Respondent:
                   Monte J.      Boettger,         Attorney at Law,
                   Lewistown,      Montana         (for John Garlick)

                   Ann Gilkey,    Department   of Family   Services,
                   Helena,   Montana   (for Department   of Family                Services)

                   Ronald Arneson,   Attorney   at Law, Billings,        Montana
                   (for Turtle  Mountain    Band of Chippewa      Indians)


                                            Submitted     on Briefs:       June     27,       1996
                                                            Decided:       July    30,        1996
Filed:
Justice            W. William                  Leaphart           delivered                   the      Opinion             of         the        Court.




          Appellants,                     Kenneth              and        Clara          Siroky             (the         Sirokys),                 appeal

from      the           Findings           of     Fact         and Conclusions                         of     Law and Order                        of        the

Tenth          Judicial              District                  Court,            Fergus              County,              concluding                        that
Jessica            Lynn Riffle                  (Jessica)             is an Indian                    child          and that,                   pursuant

to      the        Indian          Child         Welfare             Act,         25 U.S.C.                  §§ 1901                 to      1963           (the

ICWA),         Jessica's              uncle,              John       Garlick              (Garlick)                gets         the         benefit            of

an adoptive                    placement            preference.                     We affirm.

          The Sirokys                    present           four           issues          on appeal:

          1.             Is    Jessica          an "Indian                 child"             as defined                  by the             ICWA?

          2.       Does              application                     of      the          ICWA             deny          Jessica                 her
          constitutional                   rights?

          3.         Have         Jessica's               best        interests                been         addressed?

          4.    Is the Montana Department      of Public     Health and Human
          Services'    (Department)    consent   required    for the adoption
          of Jessica    pursuant    to § 40-8-111,      MCA?

          The            background              to       this        case          is         set         forth          in         this         Court's

opinion            in         In re Adoption               of Riffle                (1995),                273 Mont.                 237,        902 P.2d

542.          In Adoption                 of     Riffle,             Garlick,                 who is         an enrolled                     member            of

the      Turtle               Mountain          Band of           Chippewa                Indians,                 the     Department,                       and

the      Turtle               Mountain          Band of           Chippewa                Indians              (the        Tribe)                appealed

the     District                Court's          grant         of the         Sirokys'                petition                 for        adoption             of

Jessica.                  We reversed                 and remanded                  for        a determination                              of    whether

Jessica             is        an "Indian              child"         pursuant                 to     25 U.S.C.                  5 1903(4).

          In Adoption                    of     Riffle,          we held             that,            in     determining                     whether               a

child         is        an "Indian              child"           pursuant                to     the        ICWA,          the         Tribe            is    the

                                                                             2
ultimate               authority                 on eligibility                        for       tribal              membership.                          Adoption
of     Riffle,               902 P.2d             at        545.          The ICWA defines                             an "Indian                        child"           as
"any       unmarried                    person          who is             under            age eighteen                         and is             either               (a)

a member               of     an Indian                tribe         or     (b)        is       eligible               for         membership                     in      an

Indian           tribe             and is          the       biological                     child         of         a member                 of         an Indian

tribe."            25          U.S.C.             5 1903(4).                          Consequently,                          we         held             that          the

district               court            erred          in        relying           on the               Bureau              of      Indian                Affairs'

(BIA)            determination                           that             Jessica                  is      ineligible                             for           tribal

membership                    based         on her               blood           quantum.                  Adoption                     of     Riffle,                 902

P.Zd       at      545.             Furthermore,                     we held                that         the         Tribe          must            be allowed

to     intervene                   in     the       proceeding.                       Adoption                  of        Riffle,                 902 P.2d                at

545.

           On      remand,                 the         District                  Court             concluded                     that         the             Tribe's

determination                       that         Jessica             is     an Indian                    child              and is                a member               of

the     Tribe           was conclusive.                            Thus,          the        court         determined                        that         the       ICWA

applied            to         Jessica's                adoption.                   Consequently,                            although                    the       court

found           that          both         the      Sirokys                and Garlick                     could             provide                    a loving,

caring           and secure                 environment                    for        Jessica,             the         court             concluded                 that

there            was          no         good          cause              not         to         follow               the              ICWA             placement

preferences                    and        that         the         ICWA preference                              favored                 placement                  with

Jessica's                   uncle,           Garlick.                      Thus,                the       court              granted                    Garlick's

petition                for        adoption                 of      Jessica                 and         concluded                   that            it        was         in

Jessica's                   best        interest             to      maintain                   contact              with         the         Sirokys.

           We review                     district                 court           conclusions                        of          law         to          determine

whether           the         court's             interpretation                           of      law     is        correct.                     Adoption                of




                                                                                  3
Riffle,              902         P.2d           at        544         (citing               Steer,           Inc.             v.        Department                of
Revenue             (1990),              245 Mont.                 470,         474,          803 P.2d              601,           603).

            1.        Is      Jessica                an "Indian                 child"           as defined                    by the              ICWA?

           We        find            this             issue            to       be          dispositive.                            There            are         two
prerequisites                       to        the     application                      of     the      ICWA:            (1)        a child            custody

proceeding;                    and            (2)         an     Indian              child.                  25     U.S.C.                §        1903;       see

qenerallv                Debra           DuMontier-Pierre,                              The Indian                  Child            Welfare           Act        of

1978:        A Montana                    Analysis,                   56 MONT. L.                    REV. 505,                510         (1995).              The
instant             case        meets           both           prerequisites.

            In       Adoption                   of          Riffle,             we           quoted           §         B.l.(b)            (i)        of         the

Department                     of           Interior                   Guidelines                      for          State                courts              when

interpreting                     the          ICWA:

           The determination         by                               the tribe      that  a child     is not a
           member of that     tribe,                                  or is not eligible         for membership
           in that tribe,    or that                                  the biological      parent    is or is not
           a member of that       tribe                                 is conclusive.

Adoption             of       Riffle,               902 P.2d            at      545.           We held             that            the    Tribe         is       the

ultimate             authority                  on eligibility                         for      tribal            membership.                       Adoution

of    Riffle,              902 P.2d                  at     545.

            In the            instant                case,       the         Tribe           filed        papers              with        the       District

Court            officially                    recognizing                    Jessica                as      an         Indian            child            and     a

"member             of     the       tribe"               under         the        provisions                 of        the        ICWA.            Contrary

to    the        Sirokys'                contention,                   enrollment                    of the        child            in    the        Tribe        is

not       required             so long               as the           Tribe            recognizes                 the     child           as a member.

In    re          Junious                M.         (Cal.        Ct.         App.            1983),           193         Cal.Rptr.                  40,         44.

Enrollment                  and membership                         are        not           synonymous.                  In        re    Baby         Boy Doe

(Idaho            19931,            849         P.2d           925,         931.        Enrollment                  is        a common                but        not

exclusive                 evidentiary                     means         of      determining                   membership                      in    a tribe.

                                                                                   4
Baby       Boy Doe,               849 P.2d           at      931              (citing             44 Fed.Reg.                    67,584,           67,586
(1979)).             Given          the     Tribe's           determination                            that       Jessica            is    an Indian

child,           we hold          that      the      District                 Court          correctly               concluded              that      the

Tribe's           determination                   was conclusive.

           Since           Jessica          is      an Indian                      child,          the        ICWA applies                    to     this

adoption             proceeding.                     Accordingly,                           the        District                  Court     properly

applied             the         adoptive          placement                   preferences                     found          at      25 U.S.'?.             5

1915.            25 U.S.C.               5 1915(a)            provides:

           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.

The       child's           extended              family           is         defined             at      25 U.S.C.                 5 1903(2)           as

follows:

           "extended      family      member" shall       be as defined        by the law
           or custom      of the Indian       child's      tribe    or, in the absence
           of such law or custom,            shall    be a person who has reached
           the     age of      eighteen      and who is          the    Indian     child's
           grandparent,        aunt or uncle,         brother    or sister,       brother-
           in-law     or sister-in-law,        niece or nephew, first            or second
           cousin,      or stepparentL.1           [Emphasis      added. 1

           As        Jessica's                  uncle,             Garlick                   clearly                falls            within           the

definition                 of     "extended                family             member."                   The        District              Court       was

thus        correct               in       giving            Garlick                  the         benefit              of          the      adoptive

placement             preference                 under        25 U.S.C.                     5 1915(a).

           2.       Does               application                  of         the          ICWA          deny         Jessica              her
           constitutional                    rights?
           The       Sirokys              ask       this        Court               to       adopt            the      rationale               of     the

California                 appellate             court        in        its        recent          decision                 in     In re Bridget
R.       (Cal.       Ct.        App.       1996)       49 Cal.Rptr.2d                             507.         In      In        re Bridget           R.,


                                                                               5
the           California                    court              held             that                  the           ICWA               could              not          be
constitutionally                           applied                in          the         absence                  of         evidence               that            the

biological                     parents             have            a          significant                          social,                cultural,                    or

political                relationship                 with             the          Tribe.              In         re Bridqet                  R.,        49 Cal.

Rptr.Zd             at     526.
            In 1978,             Congress            passed              the            ICWA in             response               to a significant

threat            to the         integrity                of     Indian              cultures                caused             by the          alarmingly

high        incidence               of often              unwarranted                     removal              of        Indian           children               from

their            families.                 25 U.S.C.               § lYOl(4).                          Congress                 declared              that           "it

is      the        policy            of     this          Nation               to         protect                  the        best         interests                   of

Indian            children            and to promote                          the        stability                 and security                      of     Indian

tribes              and        families              by          the           establishment                             of       minimum                 Federal

standards                for        the     removal              of      Indian                children                  from          their         families.
            /I      25 U.S.C.              § 1902.                As this                Court          has previously                           stated,               we

share            Congress'                concern          and          support                 its         policy.                In      re        Baby        Girl

Jane        Doe          (1993),           262 Mont.                   380,             385,          865 P.2d                 1090,           1092;            In     re

M.E.M.             (1981),           195 Mont.                 329,           333,         635 P.2d                 1313,              1315-16.                 In     &

re      M.E.M.,                we     stated              that           it         was          our          constitutional                              duty         to

preserve               the unique             cultural                 heritage                 and integrity                          of the         American

Indians.                  Mont.           Const.          art.          X,      § l(2);                 In     re         M.E.M.,              635 P.2d                at

1316.                  Moreover,              in          Mississippi                        Band             of         Choctaw                Indians                v.

Holyfield                 (1989),           490 U.S.              30,          109 S.Ct.                    1597,          104 L.Ed.Zd                     29,       the

United            States         Supreme            Court             affirmed                 the      intent                and purposes                  of the

ICWA.             In     In     re Baby Girl                     Doe,         we discussed                         Mississippi                   Choctaw               at

length            and concluded                    that          "the         principal                 purposes                  of     the     Act        are        to

promote             the        stability             and security                          of         Indian             tribes           by preventing

                                                                                    6
further             loss          of     their            children;              and to         protect              the        best        interests

of    Indian          children                  by retaining                   their         connection               to        their        tribes."

In    re Baby              Girl          Doe,        865 P.2d           at        1095.           Accordingly,                     we hold             that

the       application                           of         the         ICWA              does       not          deny             Jessica               her
constitutional                           rights             and        we      decline            to         adopt          the         California

Court's             approach               in        In    re Bridset               R.

          3.         Have          Jessica's                 best       interests               been         addressed?

          The Sirokys                      contend              that        the     District              Court        should               have       made

a     "best          interest"                    analysis             under             § 40-E-109,                  MCA,          outside             the

restrictions,                      preferences                    or        limitations                 of      the        ICWA.             However,
since         we affirm                   the        District           Court's              determination                       that        the       ICWA

applies             to this             adoption,               a determination                    of        "best         interests"                 under

Montana              law          would              be     inappropriate.                          The         ICWA            expresses               the

presumption                   that         in        an adoptive                 placement              of     an Indian                child,          the

child's              best              interests                are     best             served          by      placement                   with         an

extended             family              member.                 25 U.S.C.                1915(a)        (1).          To overcome                     this

preference,                  a party              must        establish                the      existence             of        "good        cause        to

the     contrary."                      25 U.S.C.               1915(a)           (1).       BIA guidelines                      provide              "good

cause          to     the              contrary"              must          be     based          upon          one        or      more          of     the

following              considerations:

                       (i)   The request   of the biological                                                  parents                  or    the
          child         when the child   is of sufficient                                                 age.

                       (ii)        The extraordinary                                physical    or emotional    needs
          of the             child    as established                               by testimony     of a qualified
          expert             witness.
                   (iii)              The unavailability      of suitable                                             families               for
          placement                 after  a diligent    search has been                                             completed               for
          families                 meeting  the preference      criteria.
Guidelines                for    State         Courts;          Indian        Child        Custody         Proceedings,             44

Fed.Reg.            67,584,           67,594       (1979).

         At        least        two      courts         which      have        interpreted               the      "good      cause"

exception             of        25    U.S.C.           § 1915          have      determined               that      courts      may

consider            the     best      interests           of the         child        in   determining             whether       the

exception            app1ies.l                Matter      of Adoption               of     F.H.         (Alaska     1993),       851

P.2d     1361,         and Adoption               of     M.      (Wash.       Ct.      App.       1992),         832 P.2d      518.

The      Minnesota                    Supreme            Court,           however,                has       rejected           this
interpretation                     and        we agree.            The        Minnesota            Supreme          Court      held

that:
                  We believe,        however,       that     a finding        of good cause
         cannot be based simply              on a determination              that placement
         outside       the preferences            would      be in the child's                 best
         interests.         The plain      language       of the Act read as a whole
         and its      legislative        history       clearly      indicate        that     state
         courts     are a part of the problem                the ICWA was intended                to
         remedy.         See Mississippi            Band of Choctaw             Indians,        490
         U.S.     at 44-45,        109 S.Ct.         at 1606-07.                       The best
         interests        of the child           standard,        by its       very      nature,
         requires        a subjective           evaluation         of     a multitude             of
         factors,       many, if not all             of which are imbued with                   the
         values     of majority         culture.          It therefore            seems "most
         improbable"        that Congress          intended      to allow        state     courts
         to find        good cause         whenever         they     determined           that      a
         placement        outside     the preferences            of § 1915 was in the
         Indian     child's       best interests.             Cf. Mississippi            Band of
         Choctaw Indians,           490 U.S. at 45, 109 S.Ct.                   at 1606-07.

Matter        of     Custody             of    S.E.G.         (Minn.      1994),           521 N.W.Zd             357,    362-63.




         1 We note that in In re M.E.M.,            we stated     that,    in determining
whether      to transfer      jurisdiction        to the tribal         court,    "the best
interest       of the child     could prevent        transfer    of jurisdiction          upon
 'clear     and convincing'        showing     by the State."         In re M.E.M.,          635
P.2d at 1317.        In the instant        case, however,      we are not considering
the transfer        of jurisdiction          to a tribal      court;      rather,      we are
considering        adoption      placement       preferences       under       25 U.S.C.        5
1915(a) (1).       Thus, In re M.E.M.          is not controlling         on this     issue.

                                                                    8
          Although                  the District                   Court            cited           Adoption              of M. and concluded

that          "there                was         no      good          cause                  not          to      follow              the      placement
preference                    and Garlick's                     adoption                 is        in      the best                interests           of      the

child"             (emphasis                 added),              that         conclusion,                        to     the         extent          that          it

determines                    "best          interests,"                  is        an unnecessary                             and     inappropriate

analysis            under             the       ICWA.           The determination                                that         there       was no "good

cause"            not        to     follow           the        ICWA placement                           preference                 was sufficient.

             In         the         present                case,              the            record               clearly              supports               the

conclusion                    that          there           was          no     "good                   cause"           for         overcoming                the

placement                preferences                       of      the         ICWA:               the         Department                had    approved

Garlick            as providing                       an approved                       adoptive                home;          Garlick         is     bonded

with      Jessica;                  he had significant                              contact                with         her        during      the         first

18 months                of        her      life;        he is           Jessica's                      uncle         and,         as such,          is     part

of     her        extended                family;           Jessica's                   natural                mother          supported             Garlick

as     the        adoptive                parent            for      Jessica,                  and;             the     Department              supports

Garlick            as the                adoptive           parent             for           Jessica.

          We affirm                       the        District              Court's                      decision              to      adhere          to      the

adoption                preferences                   established                    by the               ICWA.

          4.    Is the Montana Department       of Public Health   and Human
          Services'     consent  required    for the adoption    of Jessica
          pursuant    to § 40-8-111,      MCA?

          We        hold              that           the          District                    Court             correctly                 applied              the

provisions                    of     the        ICWA and              granted                  Garlick's                  Petition             for         Final

Adoption                of         Jessica            Lynn         Riffle.                    The          Department                  supported               and

consented                to        Garlick's               adoption                 of        Jessica.                  Since          the     court           did

not      grant               the      Sirokys'              petition                    to     adopt,             the          Sirokys'             argument



                                                                                    9
that   they    do not     need        the   Department's   consent   to   petition   for   the
adoption      of   Jessica       is    moot.

       Affirmed.




               Justices




                                                    10
Justice             Karla             M. Gray,                    specially               concurring.


          I concur                   in         the        result             reached           in      the       Court's           opinion            and with

much of             what             is        said          therein.                  On the            basis           of     the         record             before

us,      however,                   I disagree                    with          the     Court's            conclusion                    that      Jessica                 is

an "Indian                 child"                   as defined                  by the          ICWA and its                    related           conclusion

that      the           ICWA applies.                               I would              affirm            the         District              Court             on the

basis         of        that         court's                 determination                      that           Jessica's              adoption                 by her

uncle,         John             Garlick,                    is      in     her        best           interests.

          As the                Court                correctly                  observes,               the       ICWA defines                    an "Indian
child"             as     "any             unmarried                     person          who is            under           age eighteen                        and         is

either             (a)         a member                      of      an         Indian          tribe             or      (b)       is      eligible                      for

membership                     in         an        Indian              tribe          and       is       the          biological                 child           of            a

member         of an Indian                            tribe."                  See 25 U.S.C.                     § 1903(4).                    I also          agree

with      the            Court                 that         a Tribe's                  determination                       that           a child               is         "a

member             or     eligible                     for        membership"                    is      conclusive                   for        purposes                  of

the      ICWA.

          The Court                       states             that         the         Tribe          officially                recognized                  Jessica

as an Indian                        child             and         "a member              of      the          Tribe."             I agree             that                the

Tribe         stated                that             Jessica             is      "an      Indian               child;"           that           statement                  is

not      conclusive                            on     the         District               Court,            however,               because                 it         is         a

conclusion                 of        law            that         only         the      court          can make by applying                             the           ICWA

definitions                     to         the        record             before           it.

          I        disagree                         with          the         Court's                conclusion                 that            the        Tribe's

"recognition"                             of        Jessica              as         a member              of      the         Tribe          meets             either

definition                 of         an "Indian                        child"          under           the       ICWA.            I do not                find            of


                                                                                        11
record           any        statement                by the        Tribe        that        Jessica            either         &         a member

of,       or     is     eligible                for     membership                 in,      the     Tribe.              What        the        Tribe
does       say         is     that            Jessica         is      "recognized                  as     a member              during             her

childhood."                   It        is     my view         that         the          ICWA requires                more         than        this.

Thus,          while         I agree             with        the      Court          that         the     language            of        the      ICWA

does       not        require            that         the    child          actually              be enrolled                as a member,

the       ICWA does                require            that     the         child          be a member                 or     eligible              for

membership.                        No        clear      and        unequivocal                    determination                    to         either

effect           has been               made by the                Tribe.

           Notwithstanding                           my disagreement                      with      the        Court         over         whether

the       ICWA applies                       here,      however,            I also           would         affirm            the        District

court.            The District                   Court        determined                  that      it    is     in     Jessica's                best

interests              to     be adopted                by her         uncle,             John      Garlick,               and there             is      a

surfeit           of        evidence            on the         record           to        support         that        determination.




                                                                           12