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filed: September 8, 1986.




James P. O'Connell, Aliquippa, for appellant.

Cirillo, President Judge, and Del Sole and Beck, JJ. Del Sole, J., files a concurring opinion. Beck, J., dissents.

Author: Cirillo

[ 356 Pa. Super. Page 557]

This is an appeal from an order terminating the parental rights of appellant. Appellant is an American Indian. The child involved is also an American Indian. Appellant was the adoptive parent of the child until the hearing court terminated her parental rights. This case is governed by the Federal Indian Child Welfare Act of 1978 (hereinafter "the Act") and is one of first impression in this state. After careful review of the record in this case and an analysis of the governing federal statute, we agree with appellant that reversal is required.

The Act was designed to promote a two-fold national policy: the protection of the best interests of Indian children, and the promotion of stable and secure Indian tribal entities. 25 U.S.C.A. § 1902. The Act establishes minimum federal standards applicable to child custody proceedings in order to prevent the separation of Indian children from family and tribal heritage. As noted by one of the few courts faced with the task of interpreting the provisions of the Act:

Hearings conducted in 1974 before the Senate Committee on Indian Affairs revealed a pattern of discrimination against American Indians in child welfare and child custody. Testimony indicated that for decades officials had removed a disproportionately large number of Indian children from their homes and reservations, and had placed them in non-Indian homes and that many of the removals were unwarranted because officials showed too little deference to Indian cultural norms and denied due process in child custody proceedings. These practices deprived many children of their tribal and cultural heritage.

To reverse this erosion of Indian family life, Congress enacted the Act. See H.R.Rep. No. 1386, 95th Cong., 2d Sess. 8, reprinted in [1978] U.S.Code Cong. & Ad.News 7530.

Matter of Appeal in Pima County Juvenile Action No. S-903, 130 Ariz. 202, 635 P.2d 187 (App.1981).

[ 356 Pa. Super. Page 558]

The Act is based on the fundamental assumption that it is in the Indian child's best interest that its relationship to the tribe be protected. Pima, supra; see also Indian Child Welfare Act of 1978: Provisions and Policy, 25 S.O.L.Rev. 98 et seq. (1980).

The Act defines certain procedures to be followed in state court proceedings involving Indian children and, as discussed below, provides a mechanism whereby an Indian parent may withdraw his or her consent to a foster care placement and effect a return of the Indian child.*fn1 Appellant contends that this statutory mechanism was ignored or misapplied in the instant case and challenges the hearing court's construction of that portion of the Act.*fn2 As a corollary, appellant urges that the spirit and intent of the Act were ignored. Appellant also contends that the trial

[ 356 Pa. Super. Page 559]

    court erred in denying petitions to transfer the case to the tribal court pursuant to 25 U.S.C.A. § 1911(b).*fn3

The facts of this case are extremely complex. They may be summarized as follows. Appellee is a Caucasian residing in Beaver County, Pennsylvania, along with the Indian child who is the subject of this action, another Indian child whom she has adopted, and a Caucasian adopted child. Appellant was, until the hearing court terminated her parental rights, the adoptive Indian parent of the child. Appellant and the child are both enrolled as members in the Cheyenne River Sioux Tribe whose reservation is located in South Dakota. The child was born on the reservation in 1979.

Appellee's first contact with appellant was in 1980 when an Indian child was placed with appellee for purposes of adoption. This adoption was finalized in 1981. Prior to that time appellant contacted appellee to ask her to adopt a second child, who is the subject of the present action. Appellee obtained custody of the child on November 17, 1981, at which time appellant provided her with a written notice that appellant was to have "temporary and complete custody" of the child.

In March, 1982, appellee filed an adoption petition in the Cheyenne River Sioux Tribal Court in South Dakota for the adoption of the child. This petition was withdrawn at the request of appellant. In May, 1982, and again in August, 1982, appellant informed appellee that she wanted appellee to adopt the child. In the fall of 1982, appellee's attorney mailed consent forms to appellant and the adoptive Indian father of the child. The adoptive Indian father is not a party to this appeal. The father indicated that he would not consent to the adoption. Appellant and the adoptive Indian father were either divorced or separated at this time.

[ 356 Pa. Super. Page 560]

In November, 1982, appellant wrote to appellee stating that she might have to ask that the child be returned, but did not request a return at that time. During November, 1982, appellant indicated to appellee in writing and in a telephone conversation that the reason for her abruptly altered desire with regard to the adoption was that she feared that the adoptive Indian father might obtain custody of the child.

Between November, 1982 and March, 1983, appellant informed appellee on three different occasions that she was planning to come to Pennsylvania to retrieve the child. Each time, she changed her mind and did not make the trip. In February, 1983, appellant indicated in a letter that she still had not decided whether to take the child back. In March, 1983, appellant again stated that she planned to come to Pennsylvania but when asked by appellee's husband whether she intended to take the child, she responded that she wished to talk with him.

The court found "no direct proof" that appellant traveled to Pittsburgh to claim the child in March, 1983. As stated by the court in a footnote to its opinion:

Although counsel for Respondent states in his brief at p. 2 that V.R.F.W. did travel to Pennsylvania in March, 1983, to get her daughter, we do not believe the evidence is so clear. The only testimony in this regard is that of D.A.E. also stated that it was her opinion that if V.R.F.W. did come to Pittsburgh, she did not leave the airport or call the E.'s attorney; she did leave a message at the E.'s home stating that she was in Pittsburgh. Thus, there is not any direct proof that V.R.F.W. was in Pennsylvania and one can only surmise as to her reason for coming if she did come.

On March 17, appellee and her husband filed an involuntary termination petition in Pennsylvania. On April 12, 1983, appellant executed a revocation of the temporary guardianship. This information was conveyed to appellee's counsel by letter dated April 18, 1983. On April 19, 1983, appellant filed a petition to transfer the proceedings to the

[ 356 Pa. Super. Page 561]

Tribal court. This petition was denied by the Pennsylvania court. Hearings were held on the involuntary termination petition and appellant's parental rights were terminated by the order of September 11, 1984. Appellant took no part in the termination proceedings although she was represented by counsel.

We begin our analysis by noting that appellant does have standing to rely upon and demand compliance with the provisions of the Act. "Parent" is defined in § 1903(9) as:

[A]ny biological parent or parents of an Indian child or any Indian person who has lawfully adopted an Indian child, including adoptions under tribal law or custom. It does not include the unwed father where paternity has not been acknowledged or established.

By the statute's definition of "parent", appellant, although not the natural parent of the Indian child, is the adoptive parent of the child, and as such qualifies as a parent entitled to seek the protections afforded by the Act.

We turn next to appellant's contention that the hearing court ignored or misconstrued certain provisions of the Act which require the return of an Indian child to its parents upon the parents' withdrawal of consent to ...

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