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(Cite
as: 782 P.2d 858)
Colorado
Court of Appeals,
Div.
I.
The
PEOPLE of the State of Colorado, DEPARTMENT OF SOCIAL SERVICES,
Petitioner-
Appellee,
In
the Interest of A.E.V. and J.E.V., Jr., Children,
and
Concerning,
The
Northern Arapaho Tribe of the Wind River Reservation, Respondent-Appellant,
and
J.W.
and R.W., Appellees.
No.
88CA0485.
Sept.
14, 1989.
Rehearing
Denied Oct. 12, 1989.
Indian
tribe was not entitled either to notice of adoption proceedings,
or to intervene in proceedings, of children who were placed
for adoption prior to date on which they became eligible
for tribal membership; extensive custody hearings had been conducted prior
to date children became tribal members in which relatives, who
were also tribal members, had participated. Indian Child Welfare Act
of 1978, §§ 101(c),
105(c), 25 U.S.C.A. §§ 1911(c),
1915(c); Rules Civ.Proc., Rule 24(a)(1, 2).
*859
Stephen H. Kaplan, Denver City Atty., and Claire Fish Mootz,
Asst. City Atty., Denver, for petitioner-appellee.
Doris Burd, Denver, guardian ad litem.
Whiteing, Thompson & White, Jeanne S. Whiteing, Boulder, for respondent-appellant.
Law Office of Stephen J. Harhai, Stephen J. Harhai, Denver,
for appellees.
Opinion by Judge TURSI.
The Northern Arapaho Tribe of the Wind River Reservation (Tribe)
appeals the order denying its request to intervene in the
adoption proceedings of A.E.V. and J.E.V. We affirm.
A.E.V. and J.E.V. are the children of a non-reservation Northern
Arapaho mother and an Hispanic father. In 1984, shortly after
J.E.V.'s birth, the children became the subject of a dependency
and neglect action and were placed with the J.W. family
(foster family). They have remained in the foster home since
that time except for an unsuccessful five-month placement with a
maternal aunt and uncle.
After notice from the juvenile court, the Tribe intervened in
the state court dependency and neglect proceedings pursuant to the
Indian Child Welfare Act, 25 U.S.C. § 1901,
et seq. (1978) (ICWA). However, it later withdrew when tribal
leaders refused to approve an amendment to a Tribal resolution
which would have expanded membership eligibility to include children of
enrolled Arapaho mothers. Subsequently, the mother died, and the father's
parent-child relationship was terminated.
In preadoption proceedings that followed, another maternal aunt and uncle
sought custody of the children. The couple were enrolled members
of the Tribe and
lived on the reservation. On May 5, 1987, the trial
court ruled that, "beyond a reasonable doubt," the best interests
of the children required placement with the foster family for
adoption.
On May 16, 1987, the Tribe adopted a resolution which
extended a limited membership to children of Northern Arapaho mothers.
This limited membership status did not accord to such children
the right to vote, hold office, or to participate in
the per capita distribution of the tribal income. The children
were officially accepted as such members of the Tribe on
May 26, 1987.
On February 19, 1988, the Tribe, admitting it had no
right of intervention under the ICWA, moved to intervene in
the adoption proceedings as a matter of right pursuant to
C.R.C.P. 24(a). The Tribe also argued that it had a
due process right to notice of the adoption and an
opportunity to be heard. The trial court denied the motion,
finding that the children were placed for adoption prior to
the date on which they became eligible for tribal membership
and that, therefore, the Tribe was not entitled either to
notice of the proceedings or to intervene in the proceedings.
We agree.
C.R.C.P. 24(a) mandates that a party be allowed to intervene
upon timely application:
"(1)
When a statute confers an unconditional right to intervene; or
(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."
25 U.S.C. § 1911(c)
(1978) of the ICWA allows Indian tribes to intervene at
any point in a state court proceeding involving the foster
care placement of, or the termination of parental rights to,
an Indian child. However, the Tribe acknowledges that § 1911(c)
does not authorize it to intervene in adoption proceedings. Nevertheless,
it argues that it has an interest by virtue of
the ICWA which is sufficient to support a right of
mandatory intervention under C.R.C.P. 24(a)(2). We disagree.
The ICWA was enacted 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 *860
of Indian children from their families and the placement of
such children in foster or adoptive homes which reflect the
unique values of Indian culture. 25 U.S.C. § 1902
(1978).
The beneficent purposes of the Act apply to all custody
proceedings involving Indian children. In
re Appeal in Maricopa County,
136 Ariz. 528, 667 P.2d 228 (App.1983). For purposes of
the ICWA, a "child custody proceeding" includes "foster care placement,"
"termination of parental right," "preadoptive placement," and "adoptive placement." "Adoptive
placements" are defined as "the
permanent placement of an Indian child for adoption, including any
action resulting in a final decree of adoption." 25 U.S.C.
§ 1903(1)(iv)
(1978). Hence, certain preferences are established under the ICWA for
foster care and adoption placements.
The preferences are to be applied in accordance with the
prevailing social and cultural standards of the tribal community and
their order may be altered by Tribal resolution. Section 1915(c),
U.S.C. (1978). In adoptive placements, absent good cause to the
contrary, a preference is to be given to (1) a
member of the child's extended family, (2) other members of
the Indian child's tribe, or (3) other Indian families. 25
U.S.C. § 1915(c)
(1978).
That the placement for adoption in this case occurred before
the ICWA applied to these children is not disputed. However,
the Tribe contends that, because the trial court had not
entered a final decree of adoption at the time the
children became members of the Tribe, all proceedings thereafter were
subject to the ICWA. While we recognize that certain proceedings
remained to finalize the adoption, no physical change in the
location of the children was anticipated or made. Since no
such change occurred and the fact that extensive custody hearings
had been conducted prior to the ICWA's applicability to the
children, we are unpersuaded that the proceedings held after the
adoption placement fell within the category of "subsequent proceedings" subject
to the ICWA. See
People in Interest of J.L.G.,
687 P.2d 477 (Colo.App.1984).
Also, we note that although the Tribe had notice of
the dependency and neglect action and of the foster placement,
it failed to change its membership requirements until several years
after the placement and after the children had been placed
for adoption with the foster family.
However, of paramount importance in our conclusion that intervention here
was not necessary is the fact that the preferences in
the ICWA were adequately presented to the court. The aunt
and uncle seeking custody and contesting the adoption were represented
by counsel and, relying on the preferences in the ICWA,
participated fully in all of the placement proceedings. The determination
of their suitability as adoptive parents involved a consideration and
balancing of various cultural issues including whether life on the
reservation would best meet the children's needs. Further, the Tribe's
asserted interest in its maintenance and preservation as a political
and cultural entity was fully presented to the state court.
Under such circumstances, we are satisfied that adequate representation of
the Tribe's interests was provided by the existing parties. Further,
the record amply justifies the implicit conclusion of the court
that good cause existed to defeat the adoptive preferences of
§ 1915.
Consequently, we hold the Tribe has failed to establish an
interest which would support intervention under C.R.C.P. 24(a)(1) or (2).
Cf.
In re J.R.S.,
690 P.2d 10 (Alaska 1984).
Order affirmed.
PIERCE and HUME, JJ., concur.
782 P.2d 858
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