The Intermediate Court of Appeals of Hawaii heard an appeal in the case In the Matter of the Adoption of a Female Child Born on October 3, 2004 by P.N. and J.N. (Sept. 11, 2009) that involved abduction and adoption. In that case, the court upheld the lower court's granting of the Natural Mother's motion to dismiss the Adopting Parent's petition to adopt the Natural Mother's child.
Shortly after Natural Mother, a tribe-registered Native American, gave birth to the child on October 4, 2004, she gave the child to Adopting Parents at the hospital. On October 7, Adopting Parents filed a petition to adopt in Hawaii. On October 14, Natural Mother signed a consent form to the adoption. This consent expressly recognized that this adoption was covered by the Indian Child Welfare Act (ICWA), 25 U.S.C. § 1901. This meant that Natural Mother could "withdraw her consent at any time, for any reason, prior to the entry of a final decree of adoption, and have the child returned to her."
Before a final decree, Adopting Parents, German nationals, took the child on October 20, 2004 to Germany with the Hawaiian court's blessings. In the Matter of the Adoption of a Female Child Born on October 3, 2004 by P.N. and J.N. The parties dispute whether Adopting Parents knew that by then, Natural Mother had changed her mind. On October 26, Natural Mother revoked her consent in the family court in Hawaii. On February 14, 2005, she got an ex parte order from the Hawaiian court compelling the child's immediate return. On April 25, 2006, she filed a return petition in German court under the Hague Abduction Convention. Id.
The German court offered three reasons for denying her petition. First, the it was not within the one-year time limit required under Article 12 of the Convention. Second, that the Hawaiian court had agreed to the removal at the time. Third, that the child had become well settled in Germany and a return "'would have such negative consequences for the physical and mental development of the child, that the well-being of the child would presently be jeopardized.'" Id.
The mother did not appeal this decision. Instead, she filed a Motion to Dismiss Adoption Proceeding in the Hawaiian court. The court granted her motion on April 24, 2008. The Adopting Parents appealed.
The Intermediate Court of Appeals of Hawaii had no problem finding that the lower court had jurisdiction. It then quickly quoted the ICWA:
[i]n 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.
Id (quoting 25 U.S.C. § 1913(a)). Accordingly, the court determined that because the final decree had not been issued, the 2004 adoption proceeding was properly dismissed. Id. So, Natural Mother is apparently now the child's legal parent in the United States, and she will have to seek recognition of that status in the German courts.