| (Cite
as: 170 Or.App. 263, 13 P.3d 523)
Court
of Appeals of Oregon.
In
the Matter of the Adoption of Guy Thomas Kerby, a
Minor Child.
David
Daniel CARSON, Appellant,
v.
Kym
Marie CARSON and Guy Thomas Kerby, a minor child, Respondents.
(A970501;
CA A107379)
Argued and Submitted March
6, 2000.
Decided
Oct. 4, 2000.
**524 *263
M. Scott Leibenguth, Portland, argued the cause for appellant. With him
on the brief was Johnston & Root.
No appearance for respondents.
Before EDMONDS, Presiding
Judge, and ARMSTRONG and KISTLER, Judges.
*265
KISTLER, J.
Petitioner David Carson
appeals from the trial court's order denying his motion to vacate a 1997
adoption judgment. He argues that because the notice requirements of the
Indian Child Welfare Act of 1978 (ICWA), 25 USC § 1901 et
seq. (1994),
were not met, the trial court had no jurisdiction to enter the judgment
of adoption. We affirm.
Mother is an enrolled
member of the Klamath Tribe. Father is not Native American. Their child
was born in 1989 and is eligible for enrollment in the Klamath Tribe.
Mother and father divorced in 1991. Mother married petitioner in 1997,
and they filed a petition to permit him to adopt her child. Because father
could not be located, they served him by publication.
[FN1] Pursuant to ICWA, mother and petitioner also notified the Klamath
Tribe of the proposed adoption. The trial court terminated father's parental
rights and entered a judgment of adoption.
FN1.
The trial court entered an order allowing service by publication and
waiving the service requirements set out in ORS 109.309(6)(b).
Mother and petitioner
later divorced. Following their divorce, petitioner sought to vacate the
judgment of adoption.
[FN2] He argued that, under section 1912 of ICWA, father should have been
notified by registered mail of the adoption proceeding and that, if father
could not be located, ICWA required that the Secretary of the Interior
be notified by registered mail. Petitioner argued that, because neither
father nor the Secretary had been notified by registered mail, the trial
court lacked jurisdiction and that the adoption decree was void. The trial
court denied father's motion. It stated:
FN2.
Child initially filed the motion to vacate the 1997 judgment of adoption.
Petitioner then filed a memorandum in support of the motion. As discussed
below, however, neither child nor mother has joined petitioner in this
appeal.
"[N]otice was appropriately
given to the Klamath Tribe, in which the mother is enrolled, before the
parental rights of the natural father, Brian Scott Kerby, were terminated
and the Decree of Adoption was signed. The court concludes that as a matter
of law the natural father was adequately *266
notified of this proceeding pursuant to the Indian Child Welfare Act,
25
USC § 190[1] et
seq."
(Some capitalization omitted.) Petitioner filed a notice of appeal from
the trial court's order denying the motion to vacate. Neither mother nor
child filed a notice of appeal.
On appeal, petitioner
repeats his argument that, because the trial court failed to comply with
section 1912(a) of ICWA, it lacked jurisdiction to enter an adoption judgment.
Section 1912(a) provides, in relevant part:
"In
any involuntary proceeding in a State court, where the court knows or
has reason to know that an Indian child is involved, the party seeking
the foster care placement of, or termination of parental rights to, an
Indian child shall notify the **525
parent or Indian custodian and the Indian child's tribe, by registered
mail with return receipt requested, of the pending proceedings and of
their right of intervention. If the identity or location of the parent
or Indian custodian and the tribe cannot be determined, such notice shall
be given to the Secretary in like manner, who shall have fifteen days
after receipt to provide the requisite notice to the parent or Indian
custodian and the tribe. No * * * termination of parental rights proceeding
shall be held until at least ten days after receipt of notice by the parent
or Indian custodian and the tribe or Secretary."
25 USC § 1912(a). The child in this case is an Indian child within
the meaning of ICWA. See
25 USC § 1903(4). Because father was not notified by registered
mail, he did not receive the notice that section 1912(a) requires before
his parental rights were terminated. Although section 1912(a) would have
been satisfied if the Secretary of the Interior had been notified by registered
mail, the Secretary was not notified.
[FN3]
FN3.
We note that the rules implementing 25 USC § 1912 place a more restrictive
interpretation on the words of that statute than their plain language
suggests. See
25 CFR § 23.11(a) (specifying that notice is only required for "Indian
parents"). We need not decide whether the rules are consistent with
the statute. As explained below, even if the statute requires notice to
non-Native American parents, petitioner may not invoke the remedy the
statute provides.
In section 1914, ICWA
provides the remedy for a failure to comply with section 1912 and also
specifies who may invoke that remedy. It provides:
*267
"Any Indian child who is the subject of any action for foster care
placement or termination of parental rights under State law, any parent
or Indian custodian from whose custody such child was removed, and the
Indian child's tribe may petition any court of competent jurisdiction
to invalidate such action upon a showing that such action violated any
provision of sections
1911, 1912, and 1913 of this title."
25 USC § 1914. Under section 1914, three classes of persons--the
Indian child, any parent or Indian custodian from whose custody such child
was removed, and the Indian child's tribe--may collaterally attack a prior
action for failure to comply with sections 1911, 1912, and 1913 of ICWA.
Therefore, in the present case, child was authorized to move to vacate
the judgment of adoption for failure to comply with section 1912(a). However,
the trial court denied child's motion, and child did not appeal. Only
petitioner appealed.
Petitioner does not fall
within one of the three classes of persons who are, in effect, given standing
in section 1914 to challenge the 1997 adoption judgment for a failure
to comply with section 1912. Petitioner is not a "parent" within
the meaning of ICWA.
[FN4] Moreover, even if petitioner were a parent, he is not a "parent
* * * from whose custody the child was removed." See
Matter of S.C.,
833 P.2d 1249, 1254 (Okla.1992) (Native American father who had not had
custody of the child could not invoke section 1914). Because the remedy
found in section 1914 does not extend to petitioner, he is not entitled
to appeal the trial court's refusal to vacate the 1997 adoption judgment.
FN4.
Under ICWA, " '[p]arent' means any biological parent or parents of
an Indian child or any Indian parent who has lawfully adopted an Indian
child." 25 USC § 1903(9). Petitioner is not child's biological
parent. Although petitioner has lawfully adopted a Native American child,
he has not alleged that he is Native American. He thus does not qualify
under either branch of the definition.
Petitioner, however,
argues that the failure to comply with ICWA deprived the trial court of
either subject matter or personal jurisdiction to approve the adoption
and that anyone may raise a jurisdictional issue at any time. The Supreme
Court of South Dakota has held that the failure to comply with ICWA's
notice provisions divests a state court of jurisdiction over a child custody
proceeding, see
Matter of *268
N.H.,
418 N.W.2d 310, 311 (S.D.1988), and the Iowa Court of Appeals has followed
Matter of N.H.,
at least as an alternative ground for its holding, see
In Interest of J.W.,
498 N.W.2d 417, 419-20 (Iowa App.1993). There is some question whether
the South Dakota Supreme Court's jurisdictional ruling in Matter
of **526
N.H. is correct.
[FN5] More to the point, however, neither the South Dakota case nor the
Iowa case that followed it involved a collateral attack on a trial court
judgment brought by a party not included in section 1914. Those opinions
make no mention of the central issue in this case--that is, whether a
person who does not fall within one of the classes listed in section 1914
may bring a
collateral challenge to an adoption judgment because of a failure to comply
with section 1912 of ICWA.
FN5.
The South Dakota Supreme Court stated that "ICWA is primarily a jurisdictional
statute" and cited a portion of the legislative history of ICWA to
support its statement. 418 N.W.2d at 311. The legislative history the
court cited, however, refers to a United States Supreme Court case holding
that state courts have an obligation to enforce federal substantive rights
if they have jurisdiction over the subject matter. See
Second Employers' Liability Cases,
223 U.S. 1, 56-57, 32 S.Ct. 169, 56 L.Ed. 327 (1912); accord
Testa v. Katt,
330 U.S. 386, 67 S.Ct. 810, 91 L.Ed. 967 (1947). Far from establishing
that Congress intended to impose jurisdictional requirements on the state
courts, the reference in the legislative history to Second
Employers' Liability Cases
shows only that Congress intended that state courts would enforce the
substantive federal rules if the state courts otherwise had jurisdiction.
We recognize that section 1911 of ICWA allocates jurisdiction between
the state and tribal courts, but the legislative history on which the
court relied in Matter
of N.H. does
not suggest that the notice requirements set out in section 1912 are jurisdictional.
The courts that have specifically
considered this issue have concluded that the privilege of invoking section
1914 to invalidate state court proceedings is limited to the named classes
of persons and that a trial court action that does not comply with ICWA
is not subject to collateral attack by anyone at any time. See
In the Matter of Adoption of a Child of Indian Heritage,
111 N.J. 155, 543 A.2d 925 (1988) (concluding that non-custodial parent
could not invalidate trial court action because he did not fall within
language of section 1914); Matter
of S.C., 833
P.2d at 1254 (same); In
re Baby Boy D,
742 P.2d 1059 (Okla.1985), cert.
den. Harjo v. Duello,
484 U.S. 1072, 108 S.Ct. 1042, 98 L.Ed.2d 1005 (1988) (same); see
also In re Pedro N.,
35 Cal.App.4th 183, 190, 41 Cal.Rptr.2d 819 (1995) (holding that section
1914 does not allow a Native American mother who was involved *269
in child custody proceeding to challenge the trial court's decision based
on section 1912 notice defects "well after the disputed action is
final").
We agree with those cases.
Having imposed federal requirements on state court actions in section
1912, Congress may also limit the persons who can challenge the failure
to comply with those statutory requirements. If Congress intended that
a trial court judgment be void, instead of merely voidable, for a failure
to comply with section 1912(a), it could have included language to that
effect. Instead, section 1914 provides a clear remedy
for a failure to comply with the notice provisions and names the parties
who can pursue that remedy.
The legislative history
leads to the same conclusion. An early version of ICWA, Senate Bill 1214,
provided that no placement made in violation of ICWA "shall be valid
or given any legal force and effect * * *."
Hearing Before U.S. Senate Select Committee on Indian Affairs: Hearings
on S. 1214,
95th Cong., 1st Sess., at 29 (August 4, 1977). Before enactment, however,
that provision was deleted, and what is now section 1914 was added. See
H. Rep. No. 1386, at 23 (1978), reprinted
in 1978 U.S.Code
Cong. & Admin.News 7530. That change buttresses our conclusion that
a failure to comply with section 1912(a) does not render the trial court's
action void but rather makes it subject to collateral attack by the three
classes of persons listed in section 1914. Because petitioner does not
fall within one of those classes, he is not entitled to challenge the
1997 adoption judgment and is not entitled to pursue this appeal unilaterally.
[FN6]
FN6.
Relying on Michels
v. Hodges,
146 Or.App. 128, 131-32, 931 P.2d 827 (1997), petitioner also argues that,
in the absence of father's consent to the adoption, the trial court lacked
jurisdiction. Michels
explains, however, that "consent [may be] obviated by statute."
Id.
at 131, 931 P.2d 827. ORS 109.324 provides: "[I]f
the court finds that such parent has willfully deserted or neglected without
just and sufficient cause to provide proper care and maintenance for the
child for one year next preceding the filing of the petition for adoption,
the consent of such parent at the discretion of the court is not required[.]"
Because
the trial court made the finding in the judgment of adoption that ORS
109.324 requires, petitioner's reliance on Michels
is misplaced.
**527
In his brief, petitioner
also argues that "[t]he court lacked personal
jurisdiction in this matter because proper *270
notice under [section 1912(a) ] was not provided to the biological father.
Therefore, the court lacked authority to grant the adoption decree ordered
March 8, 1997 and said decree is void." (Emphasis added.) We are
not persuaded by petitioner's argument. Father was served by publication
because his location was unknown, which is permitted by ORCP 7 and the
Due Process Clause. See
ORCP 7 D(6)(a); Mullane
v. Central Hanover Bank & Trust Co.,
339 U.S. 306, 315, 70 S.Ct. 652, 94 L.Ed. 865 (1950) (service by publication
is reasonably calculated to provide notice when other means, such as personal
service or service by mail, are unavailable). Oregon's adoption statutes
also provide for notice by publication when a parent cannot be located.
See
ORS 109.330(1). In this case, notice by publication was sufficient to
obtain personal
jurisdiction over father; notifying the Secretary of the Interior as provided
in section 1912(a) was not necessary to achieve that goal. Petitioner
never explains why notice to the Secretary would have given the trial
court personal jurisdiction over father if it had otherwise lacked it.
[FN7]
FN7.
Because the Secretary of the Interior serves as trustee for the tribes,
see California
v. Cabazon Band of Mission Indians,
480 U.S. 202, 217, 107 S.Ct. 1083, 94 L.Ed.2d 244 (1987), serving the
Secretary may serve other goals. It may protect the tribal and cultural
interests that are at the heart of ICWA, cf.
State ex rel. Juv. Dept. v. England,
292 Or. 545, 551-52, 640 P.2d 608 (1982) (identifying purposes of ICWA),
or it may be a means for providing notice to Native American parents,
see
25 CFR § 23.11(f) (specifying how Secretary shall attempt to locate
and provide notice to Native American parents). Father, however, is not
Native American. Notice to the Secretary would not have constituted notice
to father.
Section 1914 provides
the complete remedy for a failure to comply with section 1912. That remedy
is not available to petitioner.
Affirmed.
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