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Crews v. Hope Services

as corrected.: January 14, 1991.


Scholfield, J. Pekelis, J., concurs. Baker, J., dissents by separate opinion.

Author: Scholfield

Tammy Lee Crews appeals the trial court's order denying her motion for summary judgment, granting summary judgment to Hope Services, and dismissing Crews' petition to vacate the order terminating parental rights. We affirm.


Crews, at the time age 22 and unmarried, gave birth to B. on May 22, 1989. Prior to the child's birth, Crews sought counseling with Hope Services to determine whether to give the child up for adoption. On May 1, 1989, Crews, accompanied by the child's natural father, Charles Bertiaux, went to the Hope Services office, where she signed a "Consent to Termination/Adoption and Waiver of Right to Receive Notice of All Proceedings" form.

The form indicated that Crews understood that she was giving up all legal rights to the child. The form went on to state that the consent given was subject to superior court approval and that such approval would not be sought until a minimum of 48 hours after it was signed, or until 48 hours after the child was born, whichever came later.

With respect to revocation, the form stated that Crews understood that consent was revocable at any time before its approval by the court; however, after approval, the consent was only revocable for fraud or duress practiced by the agency requesting the consent or for lack of mental competency at the time it was executed, and in no case later than 1 year after signing.

Finally, the form also indicated that the Indian Child Welfare Act of 1978 (ICWA), 25 U.S.C. § 1901 et seq. did not apply. With respect to this part of the form, Crews' version of the discussion about her having any Indian ancestry differed from the account provided by Mary Struck, the Hope Services counselor, and by Bertiaux.

According to Crews, at a meeting with Struck in April, Struck inquired whether Crews had any Indian blood. Crews responded that she did, but did not know how much. Struck then told Crews that an investigation into potential tribal affiliation would delay the adoption, and might require that the baby reside in a foster home. Struck advised Crews not to mention her Indian blood to anyone, stating, "What I don't hear, I don't know."

Bertiaux's version of the conversation was that it took place on May 1, 1989, the date the consent form was signed. According to Bertiaux, Struck asked whether either Crews or Bertiaux had any Indian blood. Bertiaux indicated he was not sure because he was adopted. Crews indicated that there might be some Indian blood on her mother's side, but she had no information because her mother had been adopted. Crews indicated that her father's heritage was German. Struck then explained the ICWA, after which Crews stated that even if there was some Indian blood on her mother's side, it was not enough to make a difference.

According to Struck's affidavit, she never told Crews to hide or suppress her Indian heritage. Her affidavit indicates that after the discussion, it was clear to her that the ICWA did not apply because Crews was not a member of a tribe and could not name any Indian tribes in her heritage.

Crews was apparently quite thorough in examining all of her options in planning for the child. She spoke with other birth mothers, counseled with her clergyman, received advice from a number of sources, and read literature on the subject. According to Struck, Crews' parents were opposed to having the baby placed for adoption. According to Bertiaux, Crews' parents pressured her intensely to keep the baby, telling her that if she gave the baby up for adoption, she would no longer be a part of their family.

Crews and Bertiaux reviewed agency profiles on several prospective adoptive couples, and ultimately selected Rick and Sharon Shaffer, the adoptive couple in this case. A few days after signing the consent form, Crews and Bertiaux met with the Shaffers at Hope Services. Ten days later,

Sharon Shaffer again met with Crews. Both meetings were pleasant, and Crews informed Mrs. Shaffer at the second meeting that she was positive about her decision to place the child.

On May 24, 1989, 2 days after the birth of B., the trial court entered an order presented by Hope Services, terminating the parental rights of both Crews and Bertiaux. Also on this date, Crews was discharged from the hospital and the Shaffers took the baby home after Crews' pastor performed a ceremony dedicating the baby to his adoptive parents.

Crews then went to stay with Bertiaux's parents, and according to her affidavit, she telephoned Struck on May 26, 1989, asking to have B. returned to her. However, according to Struck, she spoke with Crews on May 25, 1989, and Crews was doing fine. According to Struck, it was on May 30, 1989, that Crews first said she wanted to change her mind.

Approximately a month later, Struck first learned that Crews claimed to have Choctaw and Umatilla blood. Struck requested the attorney for Hope Services to contact these tribes for information. As of July 11, 1989, the Choctaw Nation of Oklahoma had no Certificate of Degree of Indian Blood for Crews. No response was obtained from the Umatilla tribe.

On August 24, 1989, Crews filed a "Revocation of Consent to Termination/Adoption" form, alleging that the consent form was invalid because it did not comply with the ICWA and that execution of the form was the product of fraud, overreaching, or duress. On September 6, 1989, Crews filed a petition to vacate the order terminating her parental rights.*fn1 Hope Services, the prospective adoptive parents, and Bertiaux appeared in the action. A guardian ad litem, Michele Hinz, was appointed.

On September 19, 1989, Crews and her father were enrolled as members of the Choctaw tribe. On October 11, 1989, Crews filed a motion for summary judgment, arguing that her consent to terminate her parental rights was obtained in violation of the ICWA, or alternatively, that she timely revoked her consent under the act. Crews also argued that if the act did not apply, she was denied due process by the Washington statutory scheme.

A hearing was held on the motion on November 3, 1989. On November 14, 1989, the trial court entered an order denying Crews' motion for summary judgment and granted Hope Services' motion for summary judgment and dismissed Crews' petition.

This appeal timely followed.*fn2


Adoption is a creation of statute and was not recognized at common law. See In re Parsons, 76 Wash. 2d 437, 457 P.2d 544 (1969). The statutory requirements for completion of an adoption proceeding under Washington law are contained in RCW 26.33. In summary, the statutes require that a petition for relinquishment and consent to adoption must be filed with the court. These documents may be filed before the child's birth, unless the child is an Indian child, in which case the documents may not be filed until the child is 10 days old. RCW 26.33.080. The petition must contain a statement alleging whether the ICWA applies. RCW 26.33.040(1).

Court approval must be obtained for the petition for relinquishment. A hearing on the matter may not be held until the child is 48 hours old, or until 48 hours has passed since the signing of the documents, whichever is later. In the case of an Indian child, the time period is 10 days. The parent is not required to personally appear to give consent unless ordered to do so by the court. However, if the child is an Indian child, the parent is required to personally

appear. If the court approves the petition, custody is given either to the placement agency or to the adoptive parents. The court also enters an order terminating the parent-child relationship. RCW 26.33.090.

Consent to adoption may be revoked at any time until it is approved by the court. After court approval, consent may not be revoked, except that within 1 year of approval consent may be revoked for fraud, duress, or mental incompetency at the time of signing. After 1 year, consent may not be revoked for any reason. In the case of an Indian child, consent may be withdrawn for any reason until the entry of a final decree of adoption. Thereafter, consent may be withdrawn for fraud or duress within 2 years of the final decree of adoption. RCW 26.33.160.

Applying these statutory requirements to the facts before us, there is no dispute that Hope Services operated in a procedurally correct fashion if the ICWA does not apply. Although consent was obtained from Crews prior to B.'s birth, court approval was not granted until 2 days after the child was born. The petition recited that the ICWA did not apply.

Therefore, Crews' revocation came too late, unless she can claim fraud or duress in the obtaining of her consent or the ICWA applies. Nothing in Crews' recitation of the facts indicates that she was induced, either by fraud or duress, to sign the consent form. She acknowledges that the ICWA was explained to her by Struck. Crews' only allegation that in any way suggests fraud is her statement that Struck told her to "keep quiet" about her Indian heritage. However, even if the allegation were true, it is not relevant to fraud concerning Crews' consent.

Thus, Crews' revocation of her consent to adoption could only be valid if the ICWA applies. The ICWA provides for specific standards for removal and placement of Indian children as follows:

§ 1902. Congressional declaration of policy

The Congress hereby declares that it is the policy of this Nation 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 of Indian children from their families and the placement of such children in foster or adoptive homes which will reflect the unique values of Indian culture, and by providing for assistance to Indian tribes in the operation of child and family service programs.

The definitional subsection defines an Indian child as follows:

"Indian child" means any unmarried person who is under age eighteen and is either (a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe;

25 U.S.C. § 1903(4).

In the absence of express congressional legislation, a tribe has complete authority to determine all questions of its own membership, as a political entity, and the Secretary of the Interior is authorized to create a final roll of membership for any tribe, pursuant to 25 U.S.C. § 163. 41 Am. Jur. 2d Indians § 2 (1968). In its brief, the Choctaw nation asserts that it defines membership as follows:

The Choctaw Nation of Oklahoma shall consist of all Choctaw Indians by blood whose names appear on the final rolls of the Choctaw Nation approved pursuant to Section 2 of the Act of April 26, 1906 (34 Stat. 136) and their lineal descendants.*fn3

Brief of Amicus Curiae, at 9.

Thus, Crews and the Choctaws argue that no formal enrollment process is required, and that Crews and B. have been members since their birth, such that B. is an Indian child, and his adoption is subject to the ICWA. In support of this argument, the Choctaws cite language contained in United States v. Broncheau, 597 F.2d 1260 (9th Cir. 1979):

Enrollment is the common evidentiary means of establishing Indian status, but it is not the only means nor is it necessarily determinative.

Broncheau, at 1263. Broncheau dealt with federal criminal jurisdiction and concerned whether an individual was

"Indian", not whether he was a member of a particular tribe.

If we were to accept the notion that B. could be a member of the Choctaws without formal enrollment, this would be a departure from the language contained in 25 U.S.C. § 1903, which distinguishes between a child who is a member, and a child who is eligible for membership. The affidavit from Brenda Hampton, the Director of Tribal Membership of the Choctaws, suggests an interpretation of Choctaw membership consistent with 25 U.S.C. § 1903.

Hampton stated in her affidavit that Crews was "admitted to tribal membership based upon her proof of direct blood lineage from an original enrollee of the Choctaw Nation." The affidavit goes on to note that B. will be "admitted to membership upon the processing of necessary paperwork", and states that Crews "has been eligible for membership in the Tribe since her birth."

[1] Thus, it would appear that the distinction contained in § 1903 applies to the Choctaws as well as other Indian tribes. It is not disputed that Crews' enrollment occurred on September 19, 1989. The ICWA would presumably apply to the adoption proceeding, had it been commenced after this date. However, court approval of the petition for relinquishment and consent to adoption occurred on May 24, 1989, almost 4 months earlier.

Policy dictates that this court must hold that a determination as to whether the ICWA applies must be made at the time the petition is approved. The public policy of the State of Washington as set forth in the adoption statutes is to provide for the best interests of the child, to achieve finality in the placement of children, and to promote stability in family relationships. In re Baby Girl K., 26 Wash. App. 897, 615 P.2d 1310 (1980).

Although the primary policy consideration when dealing with an Indian child is that of promoting the stability and security of Indian tribes and families, concern for finality in Indian placements is also present. This is evidenced by 25 U.S.C. § 1913(d), which permits revocation of consent after

the entry of the final decree of adoption for fraud or duress only within 2 years of the entry of the decree.

A number of judicial decisions construing the ICWA have addressed the policy question of finality. In In re Adoption of Baby Boy L., 231 Kan. 199, 643 P.2d 168 (1982), a case setting forth an "Indian family" exception under which the court declined to apply the ICWA when the child's primary cultural heritage was not Indian, the court noted in support of its decision not to apply the ICWA, that the child was enrolled as a tribe member subsequent to the initiation of the court proceedings and contrary to the mother's wishes. Baby Boy L., 643 P.2d at 174.

In In re Adoption of T.N.F., 781 P.2d 973 (Alaska 1989), cert. denied sub nom. Jasso v. Finney U.S. , 108 L. Ed. 2d 616, 110 S. Ct. 1480 (1990), the court applied a state's 1-year statute of limitations to a mother's attempt to revoke her consent more than 1 year but less than 2 years following the entry of a final decree of adoption. The decision noted that the ICWA only mentions revocations based on fraud or duress, but provides no time limits for revocations based on other grounds. The T.N.F. court criticized the statements of commentators who argued that adoptive placement orders obtained in violation of the ICWA were void and could be challenged at any time.

The T.N.F. court stated that it would be inconsistent to allow collateral attack on a consent obtained in violation of the ICWA to be brought at any time, but to limit collateral attacks based on fraud or duress to 2 years. The opinion discussed the policy concern of finality as follows:

As a matter of policy, both the two-year federal statute of limitations in § 1913(d) and the one-year limitation in AS 25.23.140 recognize that at some point adoptions must become final. To allow collateral attacks on final adoption decrees at any time threatens to unreasonably disrupt the upbringing of the adopted child. . . .

Section 1914 seeks to enforce important federal procedural rights contained in ICWA. However, this interest must be balanced against the ...

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