JPB V. FRIENDS IN ADOPTION, D.B., S.L.S. AND F.C.S: Petitions for custody and paternity are denied and pursuant to Domestic Relations Law §111(e) the Court finds that the consent of the biological father to the adoption is not necessary.
Affirmed by the Appellate Division, Second Department in: IN THE MATTER OF JOHN PAUL B. (ANONYMOUS), v. FRIENDS IN ADOPTION, INC., ET AL., During the six-month period preceding the subject child’s placement for adoption, the appellant did nothing to manifest his parental interest. The appellant contends that he could not manifest his parental interest in a timely fashion because he was prevented through no fault of his own from finding out about the pregnancy until months after the child’s placement for adoption based on the biological mother’s active concealment of the pregnancy. While it may be possible for an unwed father’s failure to manifest his parental interest in a timely fashion to be excused by “active concealment” of a pregnancy, under the unique circumstances presented here, the appellant’s failure to manifest his parental interest during the six-month period preceding the child’s placement for adoption is not excusable. On the record before us, it cannot be said that the appellant “d[id] all that he could to protect his parental interest”. Accordingly, the Family Court correctly determined that the appellant’s consent to the child’s adoption was not required and, thus, properly denied the petitions in the paternity and custody proceedings.
IN THE MATTER OF BABY BOY C., This is an adoption proceeding in which the Tohono O’odham Nation, a federally recognized Indian tribe, seeks to intervene pursuant to the Indian Child Welfare Act of 1978 (ICWA; 25 USC § 1901 et seq.) upon the ground that this is a “child custody proceeding” involving an “Indian child,” as those terms are defined in ICWA. Family Court denied intervention under ICWA, instead adopting the judicially created “existing Indian family” (EIF) exception, which avoids the application of ICWA in circumstances where the court determines that the child is not part of an existing Indian family. Family Court also concluded that the EIF exception was necessary to uphold the constitutionality of ICWA where, as here, the child and his family lack significant ties to an Indian tribe or culture. Based on our review of these authorities and the submissions of the parties, the law guardian and amici, we conclude that the EIF exception directly conflicts with the express language and purpose of ICWA, as well as the rationale of the United States Supreme Court’s decision in Mississippi Band of Choctaw Indians v Holyfield. Therefore, we decline to accept it as the law of New York. We further find that although ICWA is generally applicable to this proceeding, it does not expressly authorize tribal intervention in adoption proceedings as a matter of right. Nevertheless, because the Tribe has a significant interest in having ICWA applied to this adoption proceeding, it should be permitted to intervene under CPLR 1013. Accordingly, the matter should be remanded for further proceedings on the adoption petition, which must be evaluated in accordance with ICWA’s substantive provisions.
IN THE MATTER OF R. TIESHA B., ET AL., The child’s putative father was afforded notice of a prior proceeding to terminate parental rights pursuant to Social Services Law § 384-c, which proceeding resulted in a determination as to the best interests of the child. Therefore, the Family Court erred in requiring that the putative father be provided with further notice of this adoption proceeding.
Prior results do not guarantee a similar outcome.
