Joan A. v. Native Village of Akhiok

Opinion MOORE, J. Joan A. filed a petition in the superior court seeking a determination of whether the Indian Child Welfare Act (25 U.S.C. § 1901 et seq.; hereinafter ICWA or the Act)1 applied to a prospective independent adoption of Baby Girl A. (minor), her natural child, and asking the court to — 1614 — accept her consent to the proposed adoption. The Native Village of Akhiok, sought to intervene in the proceeding. Ultimately, the lower court denied its request. The village appeals from that order. The parties seek resolution of two issues: (1) Whether appellant is entitled to intervene in what is described as a prospective adoption action under either the ICWA or state law; and (2) whether the ICWA’s placement preferences would apply to that proceeding. On our own motion, we raised the question of whether a justiciable controversy exists giving California courts jurisdiction to reach the substantive issues. We conclude the matter is justiciable and, on the merits, hold the lower court erred by denying appellant the right to intervene, but that the ICWA’s placement preferences must be considered in light of the entire language of the Act and the Department of Interior’s interpretation of it. Facts Appellant is a federally recognized Indian tribe. Respondent Joan A. was born to a couple who were members of the tribe in 1971. When respondent was three years old, she and her older sister were removed from the custody of their natural parents because of abuse and subsequently adopted by a non-Indian couple. In late 1988, respondent became pregnant by John S., who is not an Indian. Respondent chose to place her unborn child for adoption with a non-Indian couple in New York. In April 1989, respondent went to live in New York. The minor was born June 10. An attorney retained by the New York couple to handle the adoption informed appellant of the minor’s birth. Appellant intervened and sought to take her. Respondent objected and returned to California with the child. On June 13, the minor’s great uncle, a member of appellant’s village, applied to the tribal council to have the child accepted as a member of the tribe. The council considered the application July 1, and granted it by a unanimous vote. On July 27, respondent sent a letter to appellant resigning as a member of the tribe and giving up all rights stemming from her biological heritage. In California, respondent obtained court-appointed counsel to assist her in completing the proposed adoption by the New York couple. The lower court ordered an adoption case number be issued for the matter and also appointed a separate attorney to represent the minor. On July 31, respondent filed the petition to determine the applicability of the ICWA and to accept her consent — 1615 — to an adoption of minor by the New York couple. John S. signed a declaration joining in this request. Appellant responded to the petition by making a motion to intervene in the proceeding. The New York couple apparently decided not to proceed with the proposed adoption of the minor. On September 21, respondent dismissed the California proceeding. She then took the child to Canada and relinquished her to a couple in British Columbia. On October 2, the couple filed a notice initiating a private adoption with the British Columbia Superintendent of Child and Family Service. Appellant learned of respondent’s new effort and informed Canadian authorities it claimed rights in relation to the minor and wanted to protect the minor’s rights as an Indian child and member of the tribe. The Canadian couple with whom respondent placed the minor, obtained a court order granting them interim custody and guardianship of the child. The Superintendent of Child and Family Service petitioned the British Columbia Supreme Court2 for directions. Appellant filed a counterpetition, and an Akhiok couple applied for custody of the minor. Meanwhile, appellant also filed a cross-petition in the California proceeding seeking court orders: (1) Requiring respondent to divulge the minor’s whereabouts, and revoking any consent to placement of the minor that did not comply with the ICWA; (2) issuing an order to show cause for respondent’s arrest; and (3) making the minor a ward of the court. Appellant argued, inter alia, the ICWA gave it authority to direct the minor’s placement. Both respondent and the minor’s court-appointed attorney responded to this petition. On January 5, 1990, the British Columbia Supreme Court issued a decision concluding Canada lacked jurisdiction over the minor, she had been wrongfully removed from California, and this state was the proper forum for determining the minor’s adoptive placement. The Canadian couple seeking to adopt the minor appealed the decision. Apparently, that appeal is still pending. A hearing in the California proceeding was held January 19. The court vacated the dismissal of the original petition, nunc pro tunc, as of September 21, 1989, allowed appellant to intervene in the action, and found the ICWA applied to this case. It directed temporary custody of the minor remain with the couple in British Columbia pending further hearing on the applicability of the ICWA’s placement preferences. — 1616 — Respondent timely filed a motion for reconsideration seeking to vacate the trial court’s order permitting appellant’s intervention in the proceeding.3 She contended the ICWA did not permit an Indian tribe to intervene in a voluntary adoption proceeding, and granting intervention in this case would violate her constitutional rights as a parent. Appellant opposed the motion, arguing it was entitled to intervene under either the ICWA or Code of Civil Procedure section 387. After a hearing, the lower court granted respondent’s motion to reconsider and then found appellant did not have the right to intervene in this case. The trial judge agreed appellant had enrolled the minor as a member of the tribe. But he reasoned that by not requiring notice to Indian tribes in voluntary proceedings, Congress intended to preclude them from intervening in such cases or requiring state courts hearing voluntary adoptions to follow the Act’s placement preferences. Discussion I. Existence of a Justiciable Controversy* II. Appellant’s Right to Intervene in the Action Appellant’s primary argument is that it is entitled to intervene in this case. In support of its claim, appellant cites section 1911(c) and the United States Supreme Court’s decision in Mississippi Choctaw Indian Band v. Holyfield [1989] 490 U.S. 30 [104 L.Ed.2d 29, 109 S.Ct. 1597], and contends the lower court erred by finding the absence of a notice requirement in section 1913 supported an opposite conclusion. Alternatively, appellant claims it is entitled to intervene under state law. Section 1911(c) of the ICWA states in part: “In any State court proceeding for tilt foster care placement of, or termination of parental rights to, an Indian child, the . . . Indian child’s tribe shall have a right to intervene at any point in the proceeding.” (Italics added.) Thus, the Act limits a tribe’s right to intervene to only foster care placements and actions terminating parental rights. The present case is an ancillary proceeding intended to assist in — 1617 — completing a voluntary adoptive placement. (§ 1903(l)(iv).) Section 1911(c), does not give appellant an automatic right to intervene in this case.6 Appellant’s reliance on Mississippi Choctaw Indian Band v. Holyfield, supra, 490 U.S. 30, is misplaced. There an unmarried Indian woman living on the tribe’s reservation left it temporarily to give birth to twins. Then she and the children’s natural father, who was also an Indian and living on the reservation, voluntarily consented to the twins adoption by a non-Indian couple. The tribe’s motion to vacate the adoption was denied. The United States Supreme Court reversed, finding the natural mother was domiciled on the reservation, and the childrens’ domicile was the same as hers until the adoption proceeding had been concluded. Therefore, under section 1911, subdivision (a), the tribe had exclusive jurisdiction over the matter. (Id. at pp. 48-49 [104 L.Ed.2d. at pp. 46-47].) A case similar to the present appeal is Matter of J.R.S. (Alaska 1984) 690 P.2d 10. There the state removed an Indian child from his mother’s custody for abuse. Prior to the removal the mother was not living on an Indian reservation. Later, she voluntarily relinquished her parental rights. A couple petitioned to adopt the minor. Several months later the mother’s tribe sought to intervene in both the parental rights termination action and the adoption proceeding. The trial court permitted the tribe to intervene in the termination action only. First, the Alaska Supreme Court rejected a claim the ICWA authorized the tribe’s intervention in the adoption proceeding. The court noted that the ICWA itself “does not give a tribe the right to intervene in an adoption proceeding. . . .” (690 P.2d at p. 15.) It then held: “The Act thus distinguishes between ‘adoptive placement’ and ‘termination of parental rights’; only in the latter case does § 1911(c) support intervention. In short, we think Congress recognized that terminations and adoptions might be handled in separate actions. In Alaska, for example, the two proceedings are fundamentally different. [Citations.] If Congress believed that a tribe which had — 1618 — intervened in a termination proceeding would automatically be allowed to participate in an adoption proceeding, the Act it passed does not reflect this belief.” (690 P.2d at pp. 15-16.) But, the court agreed that “neither the Act nor its legislative history establishes the contrary position the adoptive parents present: that Congress implicitly forbade state courts to allow tribes to intervene in adoptive proceedings. . . .” (690 P.2d at p. 16.) Shifting its focus to state law which is similar to Code of Civil Procedure section 387, the court concluded intervention was necessary to preserve the tribe’s central role in child custody proceedings: “An Indian tribe may petition a state court to set aside actions which violate Indian parents’ rights or improperly take jurisdiction from a tribal court, but the [Act] does not provide for the filing of such a petition if a state ignores § 1915’s adoptive preferences. [Citation.] Procedurally, the tribe must intervene if it is to defend the Act’s preference system. . . .” (Id. at p. 18.) The court also held none of the other parties to the adoption proceeding adequately represented the tribe’s interests. (Id. at pp. 18-19.) The same is true here. While the ICWA does not expressly grant appellant the right to intervene in a voluntary adoption proceeding, neither does it preclude intervention. Respondent relies on the maxim expressio unius est exclusio alterius (“expression of one thing is the exclusion of another”). But that rule will not be used to contradict or vary a clear expression of legislative intent. (Williams v. Los Angeles Metropolitan Transit Authority (1968) 68 Cal.2d 599, 603 [68 Cal.Rptr. 297, 440 P.2d 497].) Congress made it very clear the ICWA is intended to protect the rights of Indian tribes as well as those of Indian children and families. (§§ 1901(3), 1902.) Contrary to respondent’s claim, appellant did seek intervention under state law in its opposition to the motion. to reconsider. Code of Civil Procedure section 387, subdivision (a) states in part: “Upon timely application, any person, who has an interest in the matter in litigation, or in the success of either of the parties, or an interest against both, may intervene in the action or proceeding.” The statute’s purpose is to protect the interests of persons affected by a judgment, obviate delay and avoid multiplicity of actions. (People v. Superior Court (Good) (1976) 17 Cal.3d 732, 736 [131 Cal.Rptr. 800, 552 P.2d 760]; Deutschmann v. Sears, Roebuck & Co. (1982) 132 Cal.App.3d 912, 915 [183 Cal.Rptr. 573].) Strictly speaking, adoptions are special proceedings and not subject to statutes governing civil actions generally. (Code Civ. Proc., §§ 23, 307 et seq.; Adoption of Thevenin (1961) 189 Cal.App.2d 245, 251 [11 Cal.Rptr. 219].) But parties with a sufficient interest may be permitted to intervene in — 1619 — an adoption proceeding. In Adoption of Lenn E. (1986) 182 Cal.App.3d 210 [227 Cal.Rptr. 63], the Court of Appeal upheld a trial court’s order granting maternal grandparents the right to intervene in an adoption proceeding brought by the child’s paternal grandparents, and gave them standing to appeal the adoption decree. (Id. at pp. 217-220; see also Reeves v. Bailey (1975) 53 Cal.App.3d 1019, 1023 [126 Cal.Rptr. 51].) We conclude the same rule should apply here as well. The lower court erred by denying appellant’s intervention in this case. While the ICWA does not expressly permit appellant to intervene and an attorney was appointed to represent the minor, the interests of the tribe under the Act are sufficiently important to support allowing it to join this proceeding and its interests are not coextensive with those of the minor.7 III. Application of the ICWA’s Placement Preferences A determination of whether or not the lower court must employ the Act’s placement preferences is not necessary to a resolution of the case. But the parties raised this issue both here and in the lower court, and we note the prospect of applying the statutory preferences was a factor in the lower court’s ruling. Because we are reversing that decision and the placement issue will arise again, because of the uncertainty existing in the law concerning it, and because any further delay will prejudice the child, we shall give the lower court guidance on the matter. (Code Civ. Proc., § 43.) Respondent argues application of the ICWA’s placement preferences to this case would violate her constitutional right to choose who will adopt her child, and California law affords greater protection to her than the ICWA. These arguments are without merit. As noted, this case involves a voluntary adoption. Until respondent signs a formal consent to the adoption, she may choose to retain the minor. (Civ. Code, § 226a.) But if she chooses to proceed with it, her choice of the adopting parents is not entirely unfettered. (See Civ. Code, § 226.2.) By enacting the ICWA, Congress has placed further conditions on the choice of prospective parents when placing an Indian child for adoption. Neither is respondent’s reliance on section 1921 persuasive. That section permits a court to apply a state or other federal law to a child custody proceeding involving an Indian child if it “provides a higher standard of protection to the rights of the parent or Indian custodian of an Indian child” — 1620 — than the ICWA. Section 1921 refers to state laws or federal statutes that protect the “rights guaranteed by the Act.” (See Guidelines for State Courts, Indian Child Custody Proceedings, 44 Fed.Reg. 67584 (Nov. 26, 1979), hereinafter guidelines.) Respondent is seeking to protect rights that are separate and apart from those contained in the ICWA. Nonetheless, the lower court is not required to comply with the ICWA’s statutory placement preferences. Section 1915(a) provides in part: “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 [fl] (1) a member of the child’s extended family; [f] (2) other members of the Indian child’s tribe; or [f] (3) other Indian families.” (Italics added.) Section 1915(c) gives the tribe the authority to alter the order of preference but it also provides that, “[w]here appropriate, the preference of the Indian child or parent shall be considered . . . .” The Act does not define what is meant by “in the absence of good cause to the contrary.” However, that phrase is explained in the Department of Interior’s guidelines. Section F.3(a) thereof states: “For purposes of foster care, preadoptive or adoptive placement, a determination of good cause not to follow the order of preference . . . shall be based on one or more of the following considerations: [fl] (i) The request of the biological parents . . . .” (Guidelines, 44 Fed.Reg. at p. 67594.) Although the guidelines do not have binding legislative effect, they “are a useful aid in interpreting [the Act’s] provisions. . . .” (In re Robert T. (1988) 200 Cal.App.3d 657, 663 [246 Cal.Rptr. 168] [guidelines used to interpret similar language found in § 1911(b)].) Here, both respondent and the minor’s natural father have made it clear, by their words and actions, that they do not want the child placed with an Indian family. In addition, we note the minor is only part Indian. She has never lived in appellant’s village nor in a tribal environment. If the natural parents choose not to place the child for adoption, she will not be raised in an Indian culture. Citing Mississippi Choctaw Indian Band v. Holyfield, supra, 490 U.S. 30 and Matter of Adoption of Halloway (Utah 1986) 732 P.2d 962, appellant argues its right to assert a placement preference is equivalent to respondent’s. Both of these cases involved an interpretation of section 1911(a), which grants Indian tribes exclusive jurisdiction over child custody proceedings concerning Indian children residing or domiciled on the reservation. In Halloway, the Utah Supreme Court noted the tribe’s interest in its children “is distinct from but on a parity with the interest of the parents.” (Id. at p. 969.) The United States Supreme Court’s opinion in Holyfield quoted this — 1621 — language with approval. (490 U.S. at p. 53 [104 L.Ed.2d at p. 49.]) In context, the statement refers to the tribe’s interest in dealing “with children of domicilian es of the reservation . . . .” (Matter of Adoption of Halloway, supra, 732 P.2d at p. 969.) The tribe’s interest in actions involving Indian children living off the reservation is not as great. A review of the ICWA’s provisions supports this difference in the interests and rights between an Indian child’s parents and his or her tribe. For example section 1911(b) grants a preference to tribal courts in foster care and parental termination matters where an Indian child resides or is domiciled off the reservation “absent objection by either parent.” (Italics added.) Also, section 1913(a) permits an Indian parent or custodian to voluntarily consent to a foster care placement or termination of parental rights without first notifying the tribe. Finally, under section 1915(c), the Indian parent’s placement preference must be considered “[w]here appropriate.” Furthermore, this interpretation of the ICWA does not entirely preclude an Indian child adopted by non-Indians from discovering and reestablishing his or her roots later on in life. Section 1917 permits an adopted Indian to receive information on his or her “tribal affiliation . . . and . . . such other information as may be necessary to protect any rights flowing from the individual’s tribal relationship” upon reaching the age of 18. Therefore, upon remand the lower court should review the Act’s placement preferences in light of the foregoing discussion and the evidence produced by the parties. Disposition The order denying appellant’s motion to intervene in this proceeding is reversed, and the matter remanded to the superior court with directions to grant the motion and to conduct further proceedings consistent with this opinion. In the event the Canadian adoption proceeding is revived, Canadian authorities can, pursuant to principles of comity, decide whether to give effect to the lower court’s findings concerning placement under the ICWA. The parties shall bear their own costs on appeal. Sonenshine, Acting P. J., concurred. Footnotes [1] All statutory references are to title 25 of the United States Code unless otherwise specified. [2] The parties inform us the British Columbia Supreme Court is a trial court equivalent to the superior court in California. [3] The notice of motion also stated respondent was seeking reconsideration of the court’s finding minor was an Indian child. However, respondent presented no argument or authority on this issue and has not appealed the lower court’s finding. [*] See footnote, ante, page 1611. [6] The dissent argues this case involves an action to terminate respondent’s parental rights. (§ 1903(l)(ii).) Consequently, he concludes appellant has standing to intervene under the ICWA to challenge the validity of respondent’s consent to an adoption (§§ 1911(c), 1914), but the Act’s placement preferences (§ 1915) do not apply. First, section 1903(l)(ii) applies only to actions “resulting in the termination of the parent-child relationship.” (Italics added.) At the completion of these proceedings respondent will still be the minor’s mother. That relationship will not terminate until a court grants the prospective adoptive parents’ petition for adoption. Second, although criticizing our characterization of the case as one ancillary to a voluntary adoption, the dissent concedes the present action is only “the first step toward the termination of [respondent’s] parental rights” and is intended “to facilitate an adoption.” (See dis. opn., post, p. 1622.) Finally, reliance on Matter of Adoption of Baby Boy L. (1982) 231 Kan. 199 [643 P.2d 168] is without merit since, as the dissent notes, that case involved an involuntary proceeding to terminate the father’s parental rights. (See dis. opn., post, p. 1624.) [7] In light of our foregoing discussion we need not consider appellant’s contention the motion for reconsideration failed to satisfy Code of Civil Procedure section 1008, subdivision (a)’s requirement that it be “based upon an alleged different state of facts.’’