as: 136 Ariz. 528, 667 P.2d 228)
of Appeals of Arizona, Division 1, Department D.
the Matter of the APPEAL IN MARICOPA COUNTY JUVENILE ACTION
1 CA-JUV 189.
June 21, 1983.
Indian Community appealed from
an order of the Superior Court, Maricopa County, Cause No. A-25525, Rebecca
A. Albrecht, Commissioner, granting adoption. The Court of
Appeals, Meyerson, J., held that: (1) in the case of child born
out of wedlock to a non-Indian mother, until such time as the putative
Indian father acknowledges or establishes paternity, the provisions of
the Indian Child Welfare Act are not applicable; (2) in absence
of evidence to support a finding that child was an Indian child, Indian
Child Welfare Act was inapplicable to proceeding leading up to the final
adoption of the child, and therefore, trial court was not required to
send notice of termination and foster care proceedings to Indian community,
nor was it required to follow statutory preferences governing placement
prior to date Indian father acknowledged paternity; and (3) evidence
sustained finding that child had resided with adoptive mother for three
years, that a close mother-child relationship with adoptive mother had
been established, and that the child's
removal would cause psychological damage, and therefore, trial court did
not abuse its discretion in ordering adoption of the child and declining
to follow the preferences of adoptive placement contained in the Indian
Child Welfare Act.
any section of the Indian Child Welfare Act applies, it must be established
on record that child meets one or both of definitional criteria for Indian
child; only then does a parent or tribe qualify for protection under
the Act. Indian Child Welfare Act of 1978, § 4(1, 4, 9),
25 U.S.C.A. § 1903(1, 4, 9).
the case of child born out of wedlock to a non-Indian mother, until such
time as the putative Indian father acknowledges or establishes paternity,
the provisions of the Indian Child Welfare Act are not applicable. Indian
Child Welfare Act of 1978, §§ 2-113, 25 U.S.C.A. §§ 1901-1923.
absence of evidence to support a finding that child was
an Indian child, Indian Child Welfare Act was inapplicable to
proceeding leading up to the final adoption of the child,
and therefore, trial court was not required to send notice
of termination and foster care proceedings to Indian community, nor
was it required to follow statutory preferences governing placement prior
to date Indian father acknowledged paternity. Indian Child Welfare Act
of 1978, §§ 2-
113, 25 U.S.C.A. §§ 1901-1923.
Child Welfare Act did not preclude trial court from exercising
its discretion in allowing intervention by Indian tribe in adoption
proceeding involving Indian child. Indian Child Welfare Act of 1978,
25 U.S.C.A. §§ 1901-1923.
court will not substitute its own opinion for that of
trial court, and findings of trial court will be upheld
unless they are unsupported by the evidence.
is the child's best interests which are of primary concern
in adoption proceedings. A.R.S. § 8-116.
need to maintain an Indian child's ties to his or
her tribe is not to be ignored where the Indian
Child Welfare Act is applicable. Indian Child Welfare Act of
1978, §§ 2-113,
25 U.S.C.A. §§ 1901-1923.
adoption proceeding, evidence sustained finding that child had resided with
adoptive mother for three years, that a close mother-child relationship
with adoptive mother had been established, and that the child's
removal would cause psychological
damage, and therefore, trial court did not abuse its discretion
in ordering adoption of the child and declining to follow
the preferences of adoptive placement contained in the Indian Child
Welfare Act. Indian Child Welfare Act of 1978, §§ 2-113,
25 U.S.C.A. §§ 1901-1923.
Rodney B. Lewis and Patrick Irvine, Sacaton, for appellant Gila
River Indian Community.
Jennings, Strouss & Salmon by Rita A. Meiser and Jefferson
L. Lankford, Phoenix, for appellee Catholic Social Service of Phoenix.
The Gila River Indian Community (Community) appeals from a final
order granting adoption. The facts which give rise to this
appeal are as follows.
R.M., an anglo, met with a counselor from Catholic Social
Service of Phoenix (Agency) on April 27, 1979, to discuss
placing her soon-to-be-born child for adoption. She told the counselor
that the father of the child was unknown because she
had intimate relations with several men; she suspected that Edmund
Jackson, a Pima Indian, and a member of the Community,
might be the father. About three weeks later, R.M. gave
birth to a baby girl. The baby had certain Indian
features but no father was designated on the birth certificate.
The child was placed in a foster home and the
Agency pursued the possibility that Edmund Jackson was the father.
A social worker for the Community was contacted regarding the
identity and whereabouts of Edmund Jackson. The social worker indicated
that there were several Pima Indians with that name but
he narrowed the possibilities down to one.
In July, Edmund Jackson telephoned the Agency in response to
a letter which it sent him regarding the child. He
later went to see the baby but he did not
acknowledge or attempt to establish his paternity. In December, the
Agency filed a petition for termination of parental rights. The
petition named the natural father as "allegedly" Edmund Jackson and
identified the child as of "Indian-American descent."
A petition to adopt the baby girl was filed in
February, 1980. Based upon the Agency's "Report to the Court
on Placement of Child," the trial judge sent a memorandum
to the Agency stating that the Indian Child Welfare Act
of 1978, 25 U.S.C.A. §§ 1901-23
(hereinafter ICWA or Act) clearly applied and requesting information regarding
the requirements under the Act. In response, the Agency filed
an addendum indicating that both the termination and adoptive placement
proceedings were affected by the Act but because the alleged
father had not acknowledged paternity the child was not eligible
for membership in an Indian tribe. The addendum then listed
several sections of the Act with which the
Agency attempted to comply. The report pointed out that the
Agency did not adhere to the statutory section regarding placement
preferences (see Section II, infra
) because it had "no proof that [the baby] had
any tribal affiliation.... [and] the alleged father has not established
A termination order was filed several months later severing the
rights of Edmund Jackson to the baby girl. The court
found that the natural mother had consented to the adoption
of the child and that the "natural father, Edmund Jackson"
knew of the baby but failed to establish a parent-child
relationship, that he had been served proper notice of the
proceeding and that he had, in fact, abandoned the child.
The court made no finding that the child was an
"Indian child" within the terms of the ICWA.
More than a year later, in November, 1981, the Community
moved to intervene in the adoption proceeding; the motion was
granted. The trial court advised the Community that it should
file a motion to intervene in the termination proceeding and
in the adoption matter "file some pleading ... relative to
the acknowledgement or establishing paternity of Edmund Jackson as the
father of the child ...." Shortly thereafter, the Community intervened
in the termination proceeding but no further action was taken
by the Community in the termination matter.
Concurrently, domestic problems arose between the husband and wife who
sought to adopt the baby girl. Following their divorce, in
January, 1982, the wife alone
petitioned the court to adopt the baby. Six months later,
the Community submitted a trial memorandum in which it contended
that the Agency had not complied with the ICWA placement
preferences. The memorandum asserted that the child was an "Indian
child" but offered no proof of that fact. A month
later, on August 17, 1982, an *531
affidavit acknowledging paternity was signed by Edmund Jackson and filed
with the court six days later.
A final order of adoption was granted on September 15,
1982. In the court's minute entry of September 9, it
found that to avoid "further insecurity and upset" to the
child, the adoptive preferences under the Act would not be
followed. The court concluded that the "best interests" of the
child required her continued placement with the adoptive parent.
The Community contends on appeal that the Agency did not
follow the ICWA regarding the original adoptive placement [FN1]
of the baby, and that this failure was not excused
by "good cause" because no such finding was ever made
with regard to the original placement. The Community further contends
that the remedy for the failure to adhere to the
preference and notice provisions of the Act is to vacate
the adoption order. On the other hand, the Agency contends
that the issue is whether the trial court in the
final adoption proceeding clearly abused its discretion in finding that
the best interests of the child required that the preferences
not be followed and whether the child now should remain
permanently with the adoptive mother.
Although the Community objects to the "original adoptive placement" in
1979, the placement to which the Community refers was a
foster care placement within the meaning of 25 U.S.C.A. § 1903(1)(i).
The Community does not argue that the trial court failed
to consider the ICWA's preferences in the final adoption order.
II. INDIAN CHILD WELFARE ACT
The ICWA was enacted in 1978 to "protect the best
interests of Indian children and to promote the stability and
security of Indian tribes and families ...." 25 U.S.C.A. § 1902.
Congress acknowledged in the Act that "an alarmingly high percentage
of Indian families are broken up by the removal ...
of their children" and placement in non-Indian homes. Id.
The Act provides "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 ...." Id.
There are two prerequisites to invoking the requirements of the
ICWA. First, it must be determined that the proceeding is
a "child custody proceeding" as defined by the Act. Id.
[FN2] Once it has been determined that the proceeding is
a child custody proceeding, it must then be determined whether
the child is an Indian child. Id.
Child custody proceedings include:
"foster care placement" which shall mean any 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;
"termination of parental rights" which shall mean any action resulting
in the termination of the parent-child relationship;
"preadoptive placement" which shall mean the temporary placement of an
Indian child in a foster home or institution after the
termination of parental rights, but prior to or in lieu
of adoptive placement; and
"adoptive placement" which shall mean the permanent placement of an
Indian child for adoption, including any action resulting in a
final decree of adoption.
U.S.C.A. § 1903(1).
Assuming that an Indian child is involved, the ICWA provides
certain procedures to be followed for "voluntary" and "involuntary" proceedings.
In an involuntary proceeding, the parties seeking a foster care
placement or termination of parental rights, must notify the child's
parent and the tribe by registered
mail of the pending proceedings and of their right to
No involuntary proceeding may be held until at least ten
days after receipt of the notice by the parent or
the tribe. Id.
Additionally, the parent and the Indian child's tribe have the
right to petition the court to invalidate any action for
foster care placement or termination of parental rights upon a
showing that such action violated certain other provisions of the
Voluntary proceedings are covered under 25 U.S.C.A. § 1913.
The Act also establishes "preferences" for the placement of Indian
children. In a foster care or pre-adoptive placement, a preference
is to be given to a member of the Indian
child's extended family, a foster home approved by the Indian
child's tribe, an Indian foster home, or an institution for
children approved by the tribe. This preference is to be
followed by the agency or court involved in the placement
"in the absence of good cause to the contrary." Id.
The adoptive placement of an Indian child requires that a
preference be given to the extended family of the Indian
child, other members of the Indian child's tribe, or other
Indian families, unless there is good cause to the contrary.
III. DEFINING "INDIAN CHILD"
The ICWA requires an initial determination by the trial court
that the child is an Indian child. In
325 N.W.2d 840, 842 (S.D.1982). The ICWA
defines an Indian child as a child who is (1)
a member of an Indian tribe or (2) a biological
child of a member and eligible for membership in a
tribe. 25 U.S.C.A. § 1903(4).
Therefore, before we can decide whether the Agency failed to
comply with the Act, we must first determine whether the
record of the proceedings leading up to the final adoption order reflects
the newness of the ICWA. Indeed, the Act became effective
only a few months prior to the birth of R.M.'s baby girl. No
formal finding on the record was ever made that the child is an Indian
child. In the termination matter, however, the court concluded
that the Act applied to the mother and child because it noted that certain
ICWA procedures had been followed. The trial judge hearing
the adoption matter noted early in the proceeding--in a memorandum to
the Agency--that the ICWA clearly applied. The Community argues
that these facts and the Agency's several attempts to comply with the
Act justifies application of the ICWA and that proof on the record that
the statutory criteria were met is not necessary. We do not
agree. Before any section of the Act applies, it must be established
on the record that the child meets one or both of the definitional criteria;
only then does a parent or tribe qualify for "protection"
under the ICWA. Application
of Angus, 60 Or.App.
546, 655 P.2d 208, 210 (1982).
The proper course of action in the initial proceedings below
would have been for the trial court to explicitly enter
findings regarding the status of the child
as an Indian or non-Indian [FN3]
as early in the custody proceedings as possible. See
In re K.A.B.E.,
325 N.W.2d at 842. The trial court should not have
assumed throughout the proceedings below that the ICWA applied without
ascertaining with proof and on the record that (1) the
child is enrolled in a tribe [FN4]
or that (2) the child is a biological child of
an Indian who is a member of a tribe and
that the child is eligible for membership in the tribe
This finding is not required, of course, in every child
custody proceeding but only where the court has reason to
believe that an Indian child may be involved. See
25 U.S.C.A. § 1912(a).
The best source of information on tribal membership is the
tribe itself. The Bureau of Indian Affairs is the best
secondary source. Guidelines for State Courts; Indian Child Custody Proceedings.
44 Fed.Reg. 67584 (1979). The guidelines, published by the Bureau
of Indian Affairs of the Department of Interior are a
useful source of information for questions which might arise regarding
the implementation of the Act.
a formal finding of fact that the baby was an Indian child, we must examine
the evidence presented below. Edmund Jackson knew of the birth
the child in 1979. Frequent and repeated contact was made
with him regarding the baby including notice of the termination proceeding.
But he consistently declined to acknowledge a biological relationship
with the child until August, 1982, three years after the child was born
and thirty-one months after the adoption proceedings were initiated. We
hold that in the case of a child born out of wedlock to a non-Indian mother,
until such time as the putative Indian father acknowledges or establishes
the provisions of the ICWA are not applicable.
The Community argues that it was not necessary for the
court or Agency to find a formal acknowledgment or the
establishment of paternity to conclude that Edmund Jackson was the
biological parent of the child. The Community contends that there
was no serious doubt or dispute that Edmund Jackson was
the father of R.M.'s baby girl. According to the Act,
however, there must be more than mere speculation of paternity.
The ICWA defines "parent" as "any biological parent ... of
an Indian child.... It does not include the unwed father
where paternity has not been acknowledged or established ...." 25
U.S.C.A. § 1903(9).
We think Congress has, by this language, evidenced its intent
not to extend the ICWA to a child whose mother
is non-Indian and whose father has failed to come forward
and lay legal claim to the child.
[FN5] This construction of the ICWA is in accord with
the stated purpose of the Act--to protect Indian children from
of Indian family units by child welfare agencies and courts.
H.Rep. No. 95-1386, 95th Cong., 2d Sess. reprinted
in 1978 U.S.Code Cong. & Ad.News 7530.
Our holding should be distinguished from that in In
re Baby Boy L.,
231 Kan. 199, 643 P.2d 168 (1982) in which the
court found the Act did not apply even where the
Indian father acknowledged paternity.
Contrary to the Community's suggestion, the Act does not attempt
to preserve a child's right to its Indian heritage under
all circumstances. Congress has specifically limited the Act's coverage to
members of only those Indian tribes which qualify under the
ICWA definition of "Indian tribe." 25 U.S.C.A. § 1903(8).
Nor does the Act apply to a child of an
Indian if the child is not a member of a
tribe or not eligible for membership in a tribe. Id.
Thus, because there was no evidence
to support a finding that the child is an Indian child, the ICWA was therefore
inapplicable to the proceedings leading up to the final adoption. Consequently,
the trial court was not required to send notice of the termination and
foster care proceedings to the Community, nor was it required to follow
the statutory preferences governing placement
prior to August, 1982.
IV. THE ADOPTION PROCEEDING
Agency argues that the ICWA does not expressly authorize intervention
by an Indian tribe in an adoption proceeding and it was therefore error
for the trial court to admit the Community as an intervenor. Although
the Act explicitly provides a tribe with the right to intervene in foster
care and termination proceedings, 25 U.S.C.A. § 1911(c), it
does not preclude a trial court from exercising its discretion in allowing
intervention by a tribe in an adoption proceeding. Because
the Act envisions that Indian tribes are to play a central role in custody
proceedings involving Indian children, the trial judge acted within his
discretion in granting the motion to intervene.
Having found that the Community was properly made an intervenor
below, we turn to the Community's contentions regarding the final
adoption order. First, as explained in Section III, supra,
because Edmund Jackson did not acknowledge paternity until August, 1982,
the Act did not apply until that date. Therefore, the
Community is incorrect in arguing that the adoption order should
be set aside because the Act's foster care preferences were
not followed. The Community further contends that the trial court
gave insufficient weight to the ICWA mandate that Indian children
should be raised in Indian homes and further that it
improperly weighed the relationship between the baby and the adoptive
mother against the interests of the Community in preserving this
child's ties to
appellate court will not substitute its own opinion for that of the trial
court, In re Appeal
In Pima County, 118
Ariz. 111, 115, 575 P.2d 310, 314 (1978), cert.
denied, 439 U.S. 848,
99 S.Ct. 149, 58 L.Ed.2d 150 (1978), and findings of the trial court will
be upheld unless they are unsupported by the evidence. Id.
Also, it must *534
be remembered that it is the child's best interests which are of primary
concern in adoption proceedings. A.R.S. § 8-116. Similarly,
the congressional declaration of policy behind the ICWA emphasizes that
the first interest Congress seeks to protect is that of Indian children.
25 U.S.C.A. § 1902. It is patently clear that Congress
envisioned situations in which the child's best interest may override
a tribal or family interest--the preferences for placement are to be followed
absent "good cause to the contrary." Id.
§ 1915(a), (b). Of course, the need to maintain
an Indian child's ties to his or her tribe is not to be ignored where
the ICWA is applicable. In
re Appeal in Pima County,
130 Ariz. 202, 204, 635 P.2d 187, 189 (Ct.App.1981), cert.
denied, 455 U.S. 1007,
102 S.Ct. 1644, 71 L.Ed.2d 875 (1982).
Here, the trial court exercised
its discretion in weighing the failure to comply with the Act once the
paternity of the father was established and the tribal interest in the
child against the fact that the baby girl had resided with the adoptive
mother for three years; that a close mother-child relationship
with the adoptive mother had been established; and that the baby's
removal would cause psychological damage. These findings were
supported by evidence and therefore the trial court did not abuse its
discretion in ordering the adoption of the child. Under these
circumstances, we find no abuse of discretion in the decision of the trial
court declining to follow the preferences for adoptive placement.
The Community was a party to the termination proceedings but
never presented evidence of the paternity of Edmund Jackson nor
of the baby girl's membership in the Gila River Indian
Community. The burden was on the Community to show that
the trial court had improperly ordered termination. In
643 P.2d 306, 308 (Okl.1982). Furthermore, the Community had an
opportunity to prove the applicability of the ICWA in the
adoption proceeding but failed to do so until the very
late stages, nine months after the Community first became a
The judgment of the trial court granting the final order
of adoption is affirmed.
HAIRE, P.J., and EUBANK, J., concur.
136 Ariz. 528, 667 P.2d 228