In re the Adoption of Baby Girl S.

181 Misc. 2d 117, 690 N.Y.S.2d 907, 1999 N.Y. Misc. LEXIS 214
CourtNew York Surrogate's Court
DecidedApril 30, 1999
StatusPublished
Cited by9 cases

This text of 181 Misc. 2d 117 (In re the Adoption of Baby Girl S.) is published on Counsel Stack Legal Research, covering New York Surrogate's Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re the Adoption of Baby Girl S., 181 Misc. 2d 117, 690 N.Y.S.2d 907, 1999 N.Y. Misc. LEXIS 214 (N.Y. Super. Ct. 1999).

Opinion

OPINION OF THE COURT

Albert J. Emanuelli, S.

ADOPTION PROCEEDING

In this contested adoption proceeding, (1) the Chickasaw Nation of Oklahoma (the Chickasaw Nation) moves to transfer this proceeding from this court to the tribal court of the Chickasaw Nation of Oklahoma (the tribal court) and in a separate motion, in the alternative, to intervene in the proceeding in [119]*119this court; (2) D.R, the biological father, cross-moves to dismiss the proceeding or, alternatively, to join in the motions made by the Chickasaw Nation; and (3) Adam “Anonymous” and Katherine “Anonymous” (the adoptive parents) move for a preliminary injunction restraining the parties from, inter alia, removing the child from this jurisdiction. All four motions are decided herewith.

I. THE FACTS

On December 18, 1997, the adoptive parents placed an advertisement in a Lawton, Oklahoma newspaper called “The Thrifty Nickel”. The advertisement stated that the adoptive parents were looking to share their life with a baby and set forth a telephone number by which they could be contacted.

Thereafter, responding to the advertisement, 27-year-old M.S., a resident of Mill Creek, Oklahoma, called the adoptive parents. M.S. was married but was separated from her husband, G.S., when Baby Girl S. was conceived. M.S. has stated that the biological father of Baby Girl S. was D.R, not G.S., her husband. M.S. is alleged to be 13/32 degree Chickasaw Indian and does not reside on a reservation. D.R. is not a Native American.

On February 6, 1998, M.S. gave birth to Baby Girl S.

On February 10, 1998, M.S. and G.S. gave judicial consents before the Honorable Farrell M. Hatch, Judge of the District Court of Bryan County, Oklahoma (the Oklahoma court), to the adoption of Baby Girl S. by the adoptive parents. M.S. and G.S. also had executed extrajudicial consents to the adoption.

On February 18, 1998, the Interstate Compact placement request issued. Contemporaneously therewith, Baby Girl S. was sent to New York.

II. THE PROCEDURAL HISTORY

On February 23, 1998, by certified mail, “return receipt requested”, counsel for the adoptive parents notified the Chickasaw Nation that M.S. had decided to give her daughter up for adoption. The letter was signed for, and the return receipt was filed in this court. No response was received.

On March 2, 1998, a petition for adoption was filed with this court by the adoptive parents.

On November 4, 1998, a citation was issued by this court to D.R. because M.S. had named D.R. in her judicial consent before the Oklahoma court as the biological father and thereafter the adoptive parents did so in the adoption petition.

[120]*120On November 30, 1998, the attorneys for D.R. filed a notice of appearance in this court.

On January 26, 1999, the attorney for the Chickasaw Nation filed a notice of appearance in this court and a motion to transfer this proceeding to the tribal court and, in the alternative, a motion to intervene in this proceeding.

On February 3, 1999, D.R. filed a motion to dismiss the proceeding, alleging that M.S.’s consent to the adoption of Baby Girl S. made in the Oklahoma court was invalid.

On or about March 5, 1999, D.R. filed a motion in the Oklahoma court seeking emergency custody, to vacate the consent given by M.S., and to invalidate the interstate placement order. D.R. also filed a motion to intervene in the proceeding in the District Court. Both of these motions were made returnable before the District Court on March 16, 1999.

On March 15, 1999, the adoptive parents moved by order to show cause in this court for an injunction against D.R. and the Chickasaw Nation to prevent them from taking any action to remove Baby Girl S. from the jurisdiction of this court. The order to show cause, which contained a temporary restraining order, was signed and served on counsel for the Chickasaw Nation and counsel for D.R. on that date and was made returnable on March 24, 1999.

In contravention of this court’s March 15, 1999 order, D.R. pursued his motions in the Oklahoma court. It is this court’s understanding from the litigants that, on March 16, 1999, the Oklahoma court issued an oral ruling staying all of the proceedings before that court pending the outcome of the proceedings in this court.

On April 5, 1999, M.S. appeared before this court and again gave her judicial consent to the adoption of her daughter by the adoptive parents. Prior to M.S.’s appearance, the court appointed an attorney to represent her interests, and M.S. acknowledged, in the presence of her attorney, that she was satisfied with her counsel. Further, the court did not specifically determine at that time whether the Indian Child Welfare Act of 1978, 25 USC § 1901 et seq. (the ICWA), applied to this proceeding. However, anticipating that the court could ultimately determine that the ICWA applied, judicial consent was taken in accordance with 25 USC § 1913 (c) because the ICWA requires that the parent be provided with the higher of the State or Federal standard applicable to the protection of her rights (see, 25 USC § 1921). 25 USC § 1913 (c) afforded [121]*121M.S. broader protection of her rights to her daughter than the New York State counterpart (Domestic Relations Law § 115-b). That is because the ICWA provision allows M.S. to revoke her consent up until the time that the final order of adoption is entered while Domestic Relations Law § 115-b would make M.S.’s judicial consent irrevocable at the time of its execution.

III. THE APPLICABILITY OF THE INDIAN CHILD WELFARE ACT OF 1978

Before the motions can be determined, the court must decide whether the ICWA applies to this proceeding.

(A) The Legislative Purpose of the ICWA

“Surveys conducted in 1969 and 1974 by the Association on American Indian Affairs showed that 25 to 30 percent of Indian children were being separated from their families and that fully 85 to 90 percent of [those] children were being placed in non-Indian foster care, adoptive homes, or institutions.” (Matter of Crews, 118 Wash 2d 561, 567, 825 P2d 305, 308 [1992], citing HR Rep No. 1386, 95th Cong, 2d Sess 9, reprinted in 1978 US Code Cong & Admin News 7530, 7531.) Indian homes were being broken up by the arbitrary removal of Indian children from existing Indian families by State court proceedings (see, Rye v Weasel, 934 SW2d 257 [Ky 1996]).

Congress was presented with evidence that this was occurring because of “outright bias against Indians by State social workers as well as the more subtle problem of social workers untutored in the ways of Indian family life mistaking methods of raising and disciplining children with an extended Indian family for excessive permissiveness, neglect, or abandonment” (Matter of New York City Dept. of Social Servs. [Oscar C., Jr.] v Oscar C., 192 AD2d 280, 284, Iv denied 82 NY2d 660, citing HR Rep No. 1386, 95th Cong, 2d Sess 9, reprinted in 1978 US Code Cong & Admin News 7531-7532; see also, In re Alexandria Y., 45 Cal App 4th 1483, 53 Cal Rptr 2d 679, review denied [1996]; Matter of Crews, supra).

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Bluebook (online)
181 Misc. 2d 117, 690 N.Y.S.2d 907, 1999 N.Y. Misc. LEXIS 214, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-adoption-of-baby-girl-s-nysurct-1999.