CROSBY, J., Dissenting. —The majority’s reasoning is unsound in several respects, and the relief afforded by the lead opinion is unclear and unnecessary. As explained below, we can—and should—simply end the matter now [1622]by affirming the order of the superior court, even though it, too, was grounded on an incorrect reading of the law.
Preliminarily, I note the trial court found this proceeding to determine the voluntariness of the mother’s relinquishment of her American Indian child for adoption to be governed by the Indian Child Welfare Act (25 U.S.C. § 1901 et seq.) (ICWA). (Compare, Matter of Adoption of Baby Boy L. (1982) 231 Kan. 199 [643 P.2d 168].) No one has made a serious argument to the contrary here (except the majority); this is hardly surprising, given that the very purpose of the mother’s petition was to comply with the ICWA. Yet my colleagues conclude the Native Village of Akhiok has no right under the ICWA to intervene. They explain the Orange County Superior Court action is not one to terminate parental rights, but is “an ancillary proceeding intended to assist in completing a voluntary adoptive placement.” This is simply incorrect.
Section 1903(l)(ii) of the ICWA defines “ ‘termination of parental rights’ ” as “any action resulting in the termination of the parent-child relationship.” A birth mother’s voluntary consent to the adoption of her child is nothing if not the first step toward the termination of her parental rights. Also, it is somewhat disingenuous to say the current proceedings are merely “ancillary” to an adoption proceeding. Although no adoption is pending here, the whole point of the inquiry below was to facilitate an adoption via a voluntary relinquishment in compliance with the ICWA. While it was plainly required by the ICWA, it had exactly no purpose under California law. (See maj. opn., ante, p. 1617, fn. 6.)
Section 1911(c) of 25 United States Code provides, “. . . the Indian child’s tribe shall have a right to intervene at any point in the proceeding” for termination of parental rights. Thus, the tribe has a federal right of intervention; resort to Code of Civil Procedure section 387, subdivision (a) is unnecessary.1
Section 19132 of 25 United States Code sets forth the requirements for a birth mother’s consent to termination of her parental rights and an adoptive placement. Subdivision (a) describes the procedures: “. . . [S]uch consent shall not be valid unless executed in writing and recorded before a judge of a court of competent jurisdiction and accompanied by the presiding judge’s [1623]certificate that the terms and consequences of the consent were fully explained in detail and were fully understood by the parent .... The court shall also certify that [ ] the parent . . . fully understood the explanation in English or that it was interpreted into a language that the parent . . . understood. Any consent given prior to, or within ten days after, birth of the Indian child shall not be valid.” This subdivision is obviously designed to ensure that nontribal adoption agencies and placement counselors do not coerce or defraud Indian parents into surrendering their children for adoption by non-Indian families.
In the event a valid consent is given, federal law provides additional safeguards: Section 1913(c) states, “In any voluntary proceeding for termination of parental rights to, or adoptive placement of, an Indian child, the consent of the parent may be withdrawn for any reason at any time prior to the entry of a final decree of termination or adoption, as the case may be, and the child shall be returned to the parent.” Within two years “[a]fter the entry of a final decree of adoption of an Indian child in any State court, the parent may withdraw consent thereto upon the grounds that consent was obtained through fraud or duress and may petition the court to vacate such decree. ...” 3 (25 U.S.C. § 1913(d).)
As the birth mother’s consent to the adoption of her Indian child is governed by federal law, so is the tribe’s role in the proceedings. (25 U.S.C. § 1911(c).) Section 1914 of 25 United States Code (alluded to in fn. 6) severely limits its prerogatives in the case of Indians not domiciled on a reservation: “[When an] Indian child [ ] is the subject of any action for . . . termination of parental rights under State law, ... 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.” (Italics added.) Only 25 United States Code section 1913, concerning a parent’s voluntary placement of an Indian child for adoption, is applicable here.4
[1624]Thus, while the ICWA gives the tribe the right to intervene, that can only be for the purpose of challenging the validity of Joan A.’s consent to the adoption on the statutory grounds, i.e., that her rights as a parent were not fully explained or understood by her or that her consent was obtained either before or within 10 days after the birth of the child.5 (§ 1913(a).) The tribe cannot raise any other challenge to the birth mother’s consent or claim jurisdiction in the tribal courts over her objection. The majority opinion errs in failing to recognize the futility of the tribe’s intervention under the present facts.
I also disagree with the majority’s statement that “the placement issue will arise again.” That should not happen in California. First, the ICWA’s placement preferences apply only in the case of an “adoptive placement of an Indian child under State law.” (§ 1915.) As already discussed, no adoption petition is pending here. Nor is one likely. The child has resided for most of her life with prospective adoptive parents in Canada. They cannot adopt her in this state. And the Orange County Superior Court certainly lacks jurisdiction to compel a court of a sovereign foreign nation to follow a United States statute, although, commendably, the Canadian courts have deferred while issues are pending in this jurisdiction.
Second, the birth mother has insisted that if the court does not approve her consent to the baby’s adoption by the Canadian family, she will raise the child herself. This was precisely the situation faced by the Supreme Court of Kansas in Matter of Adoption of Baby Boy L, supra, 643 P.2d 168. The child’s birth parents were not married. His mother was a non-Indian, and his father was a member of the Kiowa Tribe. A petition to involuntarily terminate the father’s parental rights was filed, and the tribe was given notice per 25 United States Code section 1912. In the meantime, the birth mother consented to the child’s adoption by a non-Indian couple.
The trial court determined the tribe had no right to intervene and terminated the father’s parental rights. Although the Kansas Supreme Court found [1625]the Act did not apply at all (on the dubious basis of the child’s illegitimacy), it went to considerable lengths to explain, “for the sake of argument, if we were to hold that the ICWA applied to these proceedings then we still fail to see where any reversible error could exist.” (Matter of Adoption of Baby Boy L., supra, 643 P.2d at p. 176.) The court observed, “The mother of Baby Boy L. gave a consent to the [prospective adoptive parents]. The consent was limited to [them] and was for their benefit only. She has made it clear that if this adoption was denied for any reason, or if an attempt was made to place the child for adoption under the terms of the Act, she would revoke her consent and again take custody of her child, and never consent to his placement with his father or with the father’s extended Indian family, the Kiowa Tribe, the grandparents or anyone else.” (Id. at p. 177.)
The court then stated, “Any attempt to effect the preferential placement contemplated by the Act would necessarily result in the removal of the baby from the custody of. [the prospective adoptive parents] and thereupon there being no consent by the mother to any such action, the child would be returned to her. We do not believe that the Congress intended such ridiculous results nor do we oelieve that the Kiowa Tribe could in good faith recommend such a procedure. ... It is elementary that the law, including the ICWA, and the courts do not require citizens and litigants to perform useless acts and be subjected to useless court proceedings where there is no possibility of any positive result for anyone.” (643 P.2d at p. 177.) I think the Kansas court was correct on that point. When a nonreservation parent voluntarily and validly consents to relinquish an Indian child and refuses to consent to a tribal placement, nothing in the ICWA gives the tribe the right to attack, much less veto, the parent’s decision.
My analysis does no violence to the public policy behind the ICWA. Baby Girl A. has never lived on a reservation and is not part of an “Indian famil[y] [ ] broken up by [an unwarranted] removal ... by nontribal public and private agencies.” (25 U.S.C. § 1901(4).) She is the child of unwed parents, one of whom happens to be of Indian heritage. The Indian birth mother was removed from the tribal village and adopted by non-Indian parents years before enactment of the ICWA. Whether her adoption fell into the category of abuses which led to enactment of the ICWA is not pertinent now.
The Native Village of Akhiok has no authority to question the placement of Baby Girl A. under federal law, given the circumstances of this case. The tribe should not be permitted to further delay the child’s adoption by additional litigation. Joan A. was properly advised by the trial court and voluntarily elected to relinquish her daughter more than 10 days after her birth. That should be the end of the matter. What is to be accomplished by [1626]the majority’s remand is a mystery to me and will undoubtedly leave the parties and the trial court wondering just what they are supposed to do now. I would affirm.
Respondent’s petition for review by the Supreme Court was denied October 3, 1991. Mosk, J., was of the opinion that the petition should be granted.
Having said that, I hasten to add that any victory for the tribe under section 1911(c) is somewhat Pyrrhic. An Indian tribe can exercise its right of intervention only if it has notice of a pending action. The act does not require notice of a birth parent’s intention to voluntarily consent to an adoptive placement (25 U.S.C. § 1913); but the tribe may intervene nonetheless, although its role is severely limited in scope (25 U.S.C. § 1914). More of that anon.
That section is titled, “Parental rights, voluntary termination.”
Clearly, federal law is at pains to protect the rights of Indians in these matters. The contrast between the federal statute and state law is striking. Under California’s adoption scheme, the court does not become involved until it is time to enter a decree of adoption or until a birth mother wishes to withdraw her consent. A birth mother residing in this state signs a consent for adoption “ ‘in the presence of a representative of the Department of Social Services,’ ” not a judge. (In re Baby Boy M. (1990) 221 Cal.App.3d 475, 478 [272 Cal.Rptr. 27].) Once consent is given, the birth mother no longer has the absolute right to reverse her decision. Her consent may be withdrawn only with the approval of the court upon a finding that it is in “the best interests of the child.” (Civ. Code, § 226a, eff. July 1, 1991; see Civ. Code, § 224.64.) No state statute permits withdrawal of consent postadoption.
Section 1911(a) pertains to child custody proceedings “involving an Indian child who resides or is domiciled within the reservation of such tribe . . . .” For an Indian child not residing on a reservation, section 1911(b) provides for transfer of a state court proceeding to [1624]the tribe’s jurisdiction unless a parent objects or there is “good cause to the contrary.” Joan A.’s objection has been strenuous and consistent; accordingly, that subdivision is not in issue.
All public records, acts, and judicial proceedings of Indian tribes are to be accorded full faith and credit. (§ 1911(d).) No one has challenged the validity of the tribe’s acceptance of Baby Girl A. as a member, so that subdivision is not a concern. Neither is 25 United States Code section 1912, which pertains to involuntary proceedings for termination of parental rights or placement of Indian children in foster care.
This probably explains why Congress did not require notice to the tribe in proceedings such as this. (25 U.S.C. § 1913.) Court approval of a nonreservation mother’s consent to terminate her rights was probably viewed as an adequate safeguard in most cases. Still, out of an abundance of caution, tribes were given the right to assert a parent’s rights when a state court has not obtained a valid consent under the ICWA.