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A judicially engrafted exception to a 1978 federal statute enacted to prevent the removal of American Indian children from their tribes without adequate consideration of tribal interests should not become the law of New York, the first appellate panel in the state to address the issue decided Tuesday. The Appellate Division, 1st Department’s unanimous ruling overturns a Family Court judge’s decision that permitted a Manhattan couple to adopt a 21-month-old boy, whose mother is one-half Indian, under the “best interests of the child” test that is normally applied in adoption proceedings. Instead, Justice Luis A. Gonzalez wrote in In re Baby Boy C., 6451, that a new hearing is required at which the trial judge must apply the “preference” in the federal statute for placement of the child with his extended Indian family. The federal law, the Indian Child Welfare Act of 1978, however, allows that preference to be overcome by a showing of “good cause,” Gonzalez noted. The baby has lived with the Manhattan couple who wants to adopt him since a few weeks after his birth on March 22, 2004. The 1st Department, however, issued a stay preventing the adoption from being finalized after Family Court Judge Mary E. Bednar ruled it would be in the best interest of the child, Baby Boy C. Frederick J. Magovern of Magovern & Sclafani, who represented the Manhattan couple, said he would ask the Court of Appeals to review the case because the 1st Department’s ruling is “inimical to the best interests of children in New York.” The couple is identified in the decision as Jeffrey A. and Joshua A. At issue in the appeal was whether the Indian Child Welfare Act could be bypassed when the family of the Indian child had severed its relations with their tribe. Bednar had applied the so-called “existing Indian family” exception because the child’s biological mother, Rita C., had “divorced herself” from the affairs of the Tohono O’odham Nation, of which she was a member. The boy’s biological father, Justin W., is Jewish. In fact, Rita C. was so hostile to the possibility of custody being awarded to her Indian relatives that she threatened to revoke her consent to the adoption should the Manhattan couple’s petition be rejected, according to the decision. In overruling Bednar, the 1st Department aligned itself with 14 other states that have rejected the “existing Indian family” exception, either by court ruling or state statute. Seven states have applied it, and appellate courts in California have split on the issue, with three accepting it and two rejecting it. STATUTORY LANGUAGE KEY In rejecting the exception, Gonzalez looked to the plain language of the statute, which applies to “a ‘child custody proceeding’ involving an ‘Indian child.’” There is no requirement in the federal law that the child be part of an “existing” Indian family that “actively participates in tribal affairs or customs,” Gonzalez wrote. “Because Congress has clearly delineated the nature of the relationship between an Indian child and tribe necessary to trigger the application of the Act,” Gonzalez wrote, “judicial insertion of an additional criterion for applicability is plainly beyond the intent of Congress and must be rejected.” Also, Gonzalez observed, application of the existing Indian family exception “would undermine the significant tribal interests” recognized by the statute itself and the U.S. Supreme Court in Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30 (1989). In Holyfield, Gonzalez wrote, Congress specifically mandated that tribal interests be considered. To protect those interests, Indian parents should not be allowed to “unilaterally defeat” the statute by deliberately avoiding contact with their tribes, he said. Furthermore, he noted, the legislative history of the statute, as interpreted by the Supreme Court in Holyfield, reveals that “chief among Congress’s concerns was the inability of non-Indian child welfare workers to understand the role of the extended family in Indian society.” Justices David B. Saxe, Eugene Nardelli, Milton L. Williams and James M. Catterson joined in the opinion. Benjamin J. Rosin of Rosin & Reiniger represented the Tohono O’odham Nation. Bertram E. Hirsch, Jack F. Trope and Mark C. Tilden submitted an amicus curiae brief for the St. Regis Mohawk Tribe, the National Indian Child Welfare Association and the Association of American Indian Affairs.

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