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Adoptive Couple v. Baby Girl: Why Your Adoption Lawyer Should Understand the Indian Child Welfare Act

Posted By Sally Vazquez Castellanos || 19-Mar-2013

Discussing ICWA With Your Los Angeles Adoption Lawyer

Adoptive Couple v. Baby Girl: Why It's Important To Discuss ICWA With Your Los Angeles Divorce Lawyer

An important issue to discuss with your Los Angeles Adoption Lawyer during the adoption process is the application of the Indian Child Welfare Act to your adoption. Under federal law, if the child you are adopting is a Native American child, then you will want to make sure your adoption lawyer and any agency involved in your adoption is following federal law and the requirements laid out in The Indian Child Welfare Act.

We first brought your attention to Adoptive Couple v. Baby Girl in an earlier posting. National news media has been reporting the case of Adoptive Couple v. Baby Girl. Sifting through some of the reporting, it’s clear there’s a lot of misinformation concerning the issues in this case.

It would be unfortunate for all interested parties to have news media turn this contested adoption case into an issue of White against Native American. It’s really not that simple, nor would it be fair. Our nation recognizes and Congress presumably sought to protect American Indian tribal sovereignty. On some level, it was recognition that Indian tribes have an important stake in protecting Indian children and establishing a distinct set of procedures under ICWA. This includes a preference for the placement of Indian children with Indian families in situations such as an adoption.

According to the United States Supreme Court Docket, the case of Adoptive Couple v. Baby Girl (more commonly referred to as the Baby Veronica) will go before the U.S. Supreme Court on April 16, 2013. As the U.S. Supreme Court prepares to hear oral argument, you can learn more about the facts of the case in the South Carolina Supreme Court opinion (No. 27148, filed July 26, 2012). Shortly, the high court will have its say when it reviews the issues at the heart of this case – especially as they relate to the Indian Child Welfare Act of 1978.

What Is the ICWA?

The Indian Child Welfare Act of 1978 (“ICWA”) and its provisions under federal law can be found at 25 U.S.C. Section(s) 1901-1963 (1978). An “Indian Child” under the Act is defined as “any unmarried person who is under age eighteen and is either (a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe.” 25 U.S.C., Section 1903(4).

The application of the Indian Child Welfare Act to the adoption of a Native American child is a complicated issue. In any adoption proceeding involving a Native American child, ICWA requires an adoption lawyer and agencies involved in the placement to strictly follow ICWA procedures, or you run the risk of jeopardizing the adoption.

Why Congress Enacted ICWA

Congress enacted ICWA with the purpose of preserving Indian tribes and relationships between tribes and their members. To do this, Congress attempted to protect the best interests of Native American children because many of these children were being removed from their homes to be placed with non-Indian families. As a result, there are important notice and intervention rights of the child’s Indian tribe under ICWA, which is at the heart of this contested adoption case.

Were notice requirements of ICWA adequately followed in Adoptive Couple v. Baby Girl? Is it possible there is an exception for the application of ICWA? For instance, can a state court determine ICWA should be limited to situations that would prevent the breakup of an existing Indian family upon a showing the child would be raised with strong ties to tribal culture? These are some of the sensitive issues that the Supreme Court will take up when it hears the case in April.

The Interstate Compact on the Placement of Children

There are also specific procedures that must be followed when you move a child across state lines for placement in an adoption. The Interstate Compact on the Placement of Children (“ICPC”) provides for a uniform procedure governing the interstate placement of children. In Adoptive Couple v. Baby Girl, the Native American child was born in Oklahoma but transferred after birth and placed with the prospective adoptive parents in South Carolina, where the adoption petition was subsequently filed.

In the disputed case, ICPC forms did not designate an Indian child was involved in the adoption. Had the ICPC administrator known the case involved the adoption of an Indian child, it’s likely the child would have been prevented from leaving Oklahoma for placement with the prospective adoptive parents in South Carolina until an investigation took place regarding the child’s Indian status.

The existing Indian Family Doctrine

It’s easy to get caught up in the emotion surrounding this adoption and the final child custody determination that will result from the Supreme Court’s review. This case is a disturbing example of an unimaginable nightmare scenario for adoptive placement. The exact kind of adoptive placement prospective adoptive parents fear most on their journey towards adoption.

On the one hand, this case raises legitimate concern over the application of the Existing Indian Family Doctrine (“EIFD”), which was adopted by many state courts in response to ICWA. It is important to keep in mind that EIFD is not found in the language of ICWA, but was instead created by a state court that did not want to apply ICWA to an adoption case. The argument for use of this doctrine is that a state should not apply ICWA in cases where the child is not already a part of an Indian family and is not residing on an Indian reservation.

EIFD is judicial doctrine first recognized by the Kansas Supreme Court in In re Adoption of Baby Boy L., 643 P.2d 168 (Kan. 1982). In that decision, the court found when an infant is born to an unwed, non-Indian mother and where that child spends its entire life being cared for by non-Indians and is not removed from an Indian family, application of ICWA violates the original intent of Congress.

On the other hand, there are a significant number of states that have not adopted EIFD and argue ICWA should apply in all instances involving an Indian child. ICWA does not require the existence of an Indian family. The statutory language of ICWA only requires that there be a child custody proceeding involving an Indian child as defined under the Act. It’s interesting to note that the Kansas Supreme Court later overruled In re Baby Boy L. Presently, there is no consistent application of EIFD around the country.

Adoptive Coupole V. Baby Girl: Where Will the Supreme Court Stand?

Adoptive Couple v. Baby Girl is a case involving prospective adoptive parents who were unable to finalize the intended adoption of a Native American child. These hopeful parents were working towards completing the adoption process but were not yet the legally recognized parents of the Indian child. Their adoption petition was denied when a South Carolina Court found that federal provisions of ICWA applied to their adoption because it involved the adoption of an Indian child.

This case raises legitimate issues as to whether the birthfather was provided adequate notice of the adoption and whether he in fact consented to the adoption under South Carolina law. The South Carolina Supreme Court cites specific instances of misinformation provided to the Cherokee Nation about the birthfather. This prevented them from correctly identifying the birthfather as a registered tribal member. The Court also mentions a failure to correctly designate that the adoption involved an Indian child on the forms for the Interstate Compact for the Placement of Children (“ICPC”), which would have raised a red flag to prevent an approved transfer and placement of the child from Oklahoma to South Carolina until Indian status was investigated.

Yet, some of the facts also suggest the birthfather attempted to pressure the birthmother into marriage. The South Carolina Supreme Court decision indicates the birthfather knew about the pregnancy and would not provide financial support to birthmother because she would not agree to marry him. While using financial support as a bargaining chip smacks of coercion, it can also be said that a birthfather, at minimum, is entitled to adequate notice of a pending adoption to ensure placement of the child was ethical and that the child’s future is stable and secure. Undoubtedly, there were tragic mistakes made on all sides of this case. Regardless of the outcome, the lives of all of the people involved in Adoptive Couple v. Baby Girl will forever be changed.

The National Indian Child Welfare Association has compiled their summary of facts on Adoptive Couple v. Baby Girl. We encourage you to read this summary and to learn more about the Indian Child Welfare Act. The American Academy of Adoption Attorneys has also filed its Brief of Amicus Curiae with the Supreme Court of the United States.

Conclusion

Adoptive Couple v. Baby Girl highlights the importance of ensuring your adoption lawyer understands ICWA and the need for compliance with state and federal law during the adoption process in Los Angeles. If you are proceeding with the adoption of a Native American child, you should discus ICWA with your Los Angeles adoption attorney and the application of ICWA to the particular facts of your adoption.

We’ll continue to keep an eye on this case. Meanwhile, if you are thinking about adoption, or if you are involved in the adoption process and continue to have questions, contact a Los Angeles Adoption Lawyer at Castellanos & Associates, APLC today at (323) 655-2105. We look forward to helping you build your family!

Categories: Adoption, English

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