ADOPTION OF RIFFLE
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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 For L. Nye; Nye & Meyer, Billings, Montana Respondent: Monte J. Lewistown, Boettger, Montana Attorney at Law, (for John Garlick) Department of Family Services, Ann Gilkey, Helena, Montana (for Department of Family Services) Attorney at Law, Billings, Montana Ronald Arneson, (for Turtle Mountain Band of Chippewa Indians) Submitted on Briefs: Decided: Filed: June 27, 1996 July 30, 1996 Justice W. William Leaphart Appellants, from the Tenth Kenneth Findings of Judicial Lynn Riffle to Indian an adoptive Is Have an "Indian child" of best appeal Law and Order of concluding child and that, §§ 1901 (Garlick) issues Jessica's Court. gets the that pursuant to 1963 benefit the (the of We affirm. four application rights? the Sirokys), County, 25 U.S.C. Garlick of (the of Fergus Act, John present 2. Does constitutional Siroky preference. Jessica Opinion is an Indian Welfare placement 1. Clara Court, uncle, the and Conclusions (Jessica) The Sirokys 3. Fact Child Jessica's ICWA), and District Jessica the delivered on appeal: as defined the ICWA interests by the deny been ICWA? Jessica her addressed? Is the Montana Department of Public Health and Human 4. Services' (Department) consent required for the adoption of Jessica pursuant to § 40-8-111, MCA? The opinion background in 542. to this In re Adoption In Adoption of case is of Riffle Riffle, set forth Garlick, who is this Court's 273 Mont. (1995), in 237, 902 P.2d an enrolled the Turtle Mountain Band of Chippewa Indians, the the Turtle Mountain Band of Chippewa Indians (the the District Court's We reversed Jessica. Jessica is an "Indian In Adoption child is an "Indian of grant of the Sirokys' and remanded child" pursuant Riffle, we held child" pursuant 2 Tribe) for a determination to 25 U.S.C. in that, to Department, petition for the of and appealed adoption of of whether 5 1903(4). determining ICWA, member the whether Tribe is a the ultimate of authority Riffle, "any on eligibility 902 P.2d unmarried a member at person of tribe and is tribe." 25 district the erred membership P.Zd at or on her intervene in is child the a member blood Bureau the Adoption in that Indian of an the Affairs' for Tribe of (a) an Indian held Adoption that proceeding. of of ineligible quantum. we held we as either membership Consequently, is child" and is for of on the Adoption an "Indian eligible Jessica Furthermore, membership. age eighteen (b) relying that based 545. under biological in tribal The ICWA defines 5 1903(4). determination (BIA) to tribe U.S.C. court 545. who is an Indian Indian for tribal Riffle, must 902 be allowed Riffle, 902 P.2d at 545. On remand, determination the Tribe applied the that District Jessica was conclusive. to is both Sirokys caring and secure there was no preferences the good cause that the petition for Jessica's best interest We review district the adoption court's child court determined for the Jessica, to of to Jessica and maintain court court contact conclusions interpretation of 3 law of is that placement placement granted with law correct. with Garlick's that the ICWA a loving, ICWA concluded of court concluded favored the the the provide the ICWA preference Thus, that court follow Tribe's a member although could not the and is and Garlick Garlick. uncle, that Consequently, environment and Jessica's the adoption. that concluded an Indian Thus, Jessica's found whether Court it was in Sirokys. to determine Adoption of Riffle, 902 P.2d Revenue (1990), 1. Is We Jessica the and 1978: case Analysis, meets Adoption Department interpreting of ultimate Riffle, In the Court to the of instant Sirokys' not required In re Enrollment (Idaho exclusive at § Child REV. 505, quoted § for 545. custody 1903; Welfare 510 see Act (1995). B.l.(b) (i) State 849 Tribe the (Cal. evidentiary filed of The of the courts the Tribe membership. papers Tribe Ct. 925, means not 931. of an when is the Adoution of of the the 1983), 193 District and a ICWA. Contrary in Tribe the child is as a member. Cal.Rptr. is 40, In synonymous. determining the child child the Enrollment 4 with Indian recognizes App. are as provisions enrollment as the P.2d that tribal Jessica contention, M. We held for the under tribe" and membership 19931, a child two 545. case, so long Junious at recognizing the U.S.C. are the tribe that a child is not a or is not eligible for membership the biological parent is or is not is conclusive. on eligibility officially "member we 902 P.2d 902 P.2d Riffle, ICWA? ICWA: authority of (1) 25 Guidelines The determination by member of that tribe, in that tribe, or that a member of that tribe Adoption by the There The Indian Riffle, Interior the 603). ICWA: child. of prerequisites. of of the 56 MONT. L. both Department 601, as defined of Indian v. dispositive. application an Inc. 803 P.2d be to DuMontier-Pierre, A Montana instant 474, child" (2) Debra 470, Steer, issue to proceeding; (citing an "Indian this prerequisites qenerallv 544 245 Mont. find In at Boy Doe re Baby a common membership in but 44. not a tribe. Baby Boy Doe, (1979)). 849 P.2d Given child, we hold Tribe's the adoption that the 1915. is determination that Court an Indian 67,584, Jessica correctly child, Accordingly, adoptive 25 U.S.C. 44 Fed.Reg. is concluded 67,586 an Indian that the was conclusive. Jessica the (citing District proceeding. applied 931 Tribe's determination Since at placement 5 1915(a) the the ICWA applies District preferences Court found at to this properly 25 U.S.'?. 5 provides: In any adoptive placement of an Indian child under State shall be given, in the absence of good law, a preference 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 shall be a person who has reached of such law or custom, the age of eighteen and who is the Indian child's aunt or uncle, brother or sister, brothergrandparent, in-law or sister-in-law, niece or nephew, first or second cousin, or stepparentL.1 [Emphasis added. 1 As Jessica's definition thus of "extended correct placement in R. (Cal. appellate Ct. App. family under ask this court 1996) clearly the 25 U.S.C. of the Court in to its 5 District benefit of the Court the was adoptive 5 1915(a). ICWA deny adopt the recent 49 Cal.Rptr.2d within falls The member." Garlick application rights? Sirokys California Garlick giving preference 2. Does constitutional The uncle, Jessica rationale decision 507. In in In her of the In re Bridget re Bridget R., the California court applied constitutionally biological at threat high their families. Indian tribes and of be that the cultural, or R., 49 Cal. § lYOl(4). by the of As this Congress 262 Mont. 195 Mont. stated United States ICWA. In length and concluded 333, it our Court re Baby Girl that 30, § l(2); In 109 S.Ct. "the principal Baby 1092; Girl In re In 1315-16. & duty of the to American M.E.M., 635 P.2d at Indians v. 104 L.Ed.Zd and purposes Mississippi purposes Indian we Choctaw of we discussed 6 re intent the of stated, 1090, 1313, re Indian families. 1597, Doe, and security In of Federal constitutional Band affirmed of their and integrity Mississippi 490 U.S. policy. "it interests minimum from 635 P.2d was X, of 865 P.2d heritage art. in Supreme stability 329, cultural best from that has previously its 385, children and security Court 380, alarmingly declared the children support that Const. (1989), Indian and by the Indian establishment of to a significant caused removal removal Moreover, the cultures stability concern Mont. In response the the unique Holyfield ICWA in § 1902. we Indians. promote not evidence re Bridqet protect the (1981), M.E.M., the to (1993), 1316. In Nation 25 U.S.C. preserve Tribe. unwarranted this families Congress' M.E.M. of could social, and to promote for Doe ICWA absence Indian 25 U.S.C. children share the significant the of of often policy /I a passed integrity incidence standards the with Congress to the the that 526. In 1978, re have relationship Rptr.Zd Jane in parents political is held tribes of 29, the of the Choctaw the at Act to are by preventing further loss of Indian In re Baby the of their children Girl Doe, 3. Have "best In best that analysis to this Montana law the would presumption that child's best extended family interests contrary." following member. the the the her California MCA, of the of best of by 1915(a) (1). the (1). based the under the the with of "good BIA guidelines The request of the biological (i) when the child is of sufficient (ii) of the expert The extraordinary child as established witness. (iii) placement families an To overcome one this cause provide or more parents age. or of the physical or emotional needs by testimony of a qualified The unavailability of suitable after a diligent search has been meeting the preference criteria. families completed to "good considerations: child ICWA child, placement existence upon However, expresses an Indian served the interests" ICWA made outside that "best The have ICWA. determination placement be that Jessica should § 40-E-109, 25 U.S.C. must we hold addressed? Court inappropriate. 1915(a) contrary" District a determination establish tribes." adopt been limitations must their R. Court's are interests deny to interests an adoptive best to not decline 25 U.S.C. preference, to be in a party or the Accordingly, does under District adoption, 1095. re Bridset contend we affirm cause we preferences applies the and protect connection ICWA Jessica's interest" restrictions, since the in The Sirokys a at rights approach their 865 P.2d of constitutional and to by retaining application Court's children; for for the Guidelines for Fed.Reg. 67,584, At least exception of consider the exception State 67,594 two 25 best 1361, The Minnesota which U.S.C. Custody of Supreme interpreted have of the Matter and Child have § 1915 interests and Adoption interpretation Indian Proceedings, 44 (1979). courts app1ies.l P.2d Courts; determined child (Wash. Court, we agree. in F.H. Ct. App. may whether the 1993), 851 832 P.2d 518. (Alaska 1992), has Minnesota cause" courts determining however, The "good that of of Adoption M. the rejected Supreme this 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 "the best whether to transfer jurisdiction to the tribal court, interest of the child could prevent transfer of jurisdiction upon In re M.E.M., 635 'clear and convincing' showing by the State." In the instant case, however, we are not considering P.2d at 1317. the transfer of jurisdiction to a tribal court; rather, we are under 25 U.S.C. 5 adoption placement preferences considering is not controlling on this issue. 1915(a) (1). Thus, In re M.E.M. 8 Although the District "there that was preference no (emphasis determines under not In to that Garlick Jessica; 18 months the her life; her extended family; as the adoptive parent for as the adoptive Garlick We affirm adoption the parent was no "good was sufficient. supports the for overcoming the with approved is during and, bonded the first as such, mother the had Garlick her uncle is supported Department part Garlick supports Jessica. Court's established inappropriate there home; and; for it Department natural Jessica, District preferences the adoptive Jessica's that and cause" Jessica's of extent clearly contact he is the preference "good an approved of the that record ICWA: he had significant of to placement interests an unnecessary the no the the best ICWA placement of as providing in of M. and concluded follow The determination was preferences is to conclusion, case, there Adoption not is the present conclusion placement that ICWA. follow the cause interests," the cited adoption added), "best analysis with good and Garlick's child" cause" Court decision by the to adhere to 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 provisions Adoption of the District to not the the ICWA and Jessica of consented grant that Lynn Garlick's Sirokys' Court granted Garlick's The Riffle. adoption of petition to 9 correctly applied Petition Department Since Jessica. adopt, the for the Final supported and the did Sirokys' court argument that they adoption do not of need Jessica the is Department's moot. Affirmed. Justices 10 consent to petition for the Justice Karla M. Gray, I concur much of us, however, that of uncle, as "any in is member or an an that best the record Jessica related District before is conclusion Court on the adoption by her interests. the is ICWA defines under or the age eighteen (b) is and eligible child I also that of for a agree a child conclusive is for biological determination is an "Indian § 1903(4). See 25 U.S.C. membership" and with that Jessica's tribe and a Tribe's for the who is Indian tribe." of ICWA and its that tribe opinion conclusion affirm person of Court's basis observes, Indian eligible is "a purposes of ICWA. The Court states that child and Tribe that Jessica stated conclusive conclusion of definitions I on law to of of is only record Jessica an "Indian Tribe of "an court before child" recognized Tribe." child;" however, I agree that Jessica that the statement is because can make by applying it is a the ICWA it. Court's as the Court, the the officially Indian District with disagree "recognition" definition the the that the "a member as an Indian not her correctly unmarried Court by the in the Court's determination of an Indian the the I would a member membership with with court's in On the as defined Court (a) member therein. Garlick, As the concurring. reached ICWA applies. that either result I disagree John child" said child" the basis the is what an "Indian the in specially conclusion a member under 11 of the the ICWA. that Tribe the meets I do not Tribe's either find of record of, does any or is statement is the It while not Jessica membership in, the Jessica is is my view I agree require with that ICWA does No has been ICWA applies court. The District interests surfeit to of and Court here, that a member What a member the language Tribe during more be a member unequivocal her than of this. the ICWA as a member, or eligible determination for to either Tribe. with I also determined by her on the the & be enrolled child however, Court Tribe. as actually the either ICWA requires my disagreement be adopted evidence the child made by the Notwithstanding the that that clear "recognized the the require membership. effect that for that childhood." does Tribe eligible say Thus, by the to 12 would Court affirm that uncle, record the it John Garlick, support is that in over the whether District Jessica's best and there is determination. a
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