In a highly anticipated decision among adoption lawyers, social workers, prospective adoptive parents, and unwed biological fathers around the nation, this morning the U.S. Supreme Court released its opinion in Adoptive Couple v. Baby Girl. In a 5-4 decision, the Court held that the Indian Child Welfare Act of 1978 (“ICWA”) does not prevent the termination of the biological father’s parental rights when applied in the context of an Indian parent who abandons a child before birth and who never had custody of the child.
You may remember earlier postings on this controversial case (also known as “Baby Veronica”). The “context” of Baby Girl arose when a woman from Oklahoma agreed to the adoption of her newborn daughter by a couple from South Carolina after her relationship with Biological Father ended. Biological Father’s conduct appears to have weighed heavily in the majority opinion. Justice Breyer, in his concurring opinion, specifically notes that, “this case does not involve a father with visitation rights or a father who has paid “all of his child support obligations. Neither does it involve special circumstances such as a father who was deceived about the existence of the child or a father who was prevented from supporting his child.” The Court highlighted the fact that throughout the pregnancy and for the first four months after Baby Girl’s birth, Biological Father did not provide financial assistance to Birth Mother or Baby Girl. It wasn’t until four months after Baby Girl’s birth, when Adoptive Couple served Biological Father with a notice of the pending adoption, shortly thereafter Biological Father finally took steps to contest the adoption. Since Biological Father was a member of the Cherokee Nation, he invoked ICWA to prevent the adoption from going forward.
Following a contested adoption trial, the South Carolina Family Court denied Adoptive Couple’s adoption petition and awarded custody to Biological Father. The South Carolina Supreme Court affirmed, concluding the ICWA applied in a child custody proceeding relating to an Indian Child, that the Biological Father was a “parent” under the ICWA; and that Section(s) 1912(d) and (f) barred the termination of Biological Father’s parental rights. The South Carolina Supreme Court also stated that had Biological Father’s rights been terminated, Section 1915(a)’s adoption-placement preferences for the adoption of Indian children to members of the child’s extended family, other members of the Indian child’s tribe, and other Indian families would apply before placement with a non-Indian family.
Today’s decision appears to be a significant victory for Adoptive Couple. However, the fight is not really over. Today’s ruling reversed the South Carolina Supreme Court decision, which upheld an order by a family court judge in Charleston, South Carolina requiring Adoptive Couple to turn over their prospective adoptive daughter to her biological father, an Oklahoma resident. However, the U.S. Supreme Court remanded the case back to South Carolina for further proceedings. As a result, there still lies some uncertainty for baby girl as a result of today’s opinion.
The Indian Child Welfare Act Is Inapplicable
In an opinion written by Justice Alito, the Court explains the congressional intent behind ICWA. “The Indian Child Welfare Act of 1978 (ICWA), which establishes federal standards for state-court child custody proceedings involving Indian children, was enacted to address “the consequences…of abusive child welfare practices that [separated] Indian children from their families and tribes through adoption or foster care placement, usually in non-Indian homes,” Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 32.
The Court goes on further to state:
“As relevant here, the ICWA bars involuntary termination of a parent’s rights in the absence of a heightened showing that serous hard to the Indian child is likely to result from the parents “continued custody” of the child, 25 U.S.C. Section 1912(f); conditions involuntary termination of parental rights with respect to an Indian child on a sowing that remedial efforts have been made to prevent the “breakup of the Indian family,” Section 1912(d); and provides placement preferences for the adoption of Indian children to members of the child’s extended family, other members of the Indian child’s tribe, and other Indian families, Section 1915(a).”
The U.S. Supreme Court held today that 25 U.S.C. Section 1912(f) is not applicable to Baby Girl because the biological father did not have custody of the child at the time of the adoption proceedings. The Supreme Court further held that Section 1912(d) – which conditions termination of parental rights for an Indian child on a showing that remedial efforts were made to prevent the “breakup of the Indian family” – also does not apply because the biological father “abandoned” the Indian child before birth and never had custody of the child.
The Court sought further to clarify Section 1915(a), which normally allows for placement preferences for the adoption of Indian children. The Court stressed ICWA’s placement preferences do not prevent Adoptive Couple from adopting baby girl, who is classified as an Indian child because she is 1.2% (3/256) Cherokee, because no eligible candidates under the statute ever sought to adopt baby girl. For instance, there was no member of the child’s extended family, nor were there other members of the Indian child’s tribe, or other Indian families seeking to adopt baby girl under the placement preferences provision of the statute.
The Court’s rationale relied heavily on the term “continued custody” found in Section 1912(f). In Justice Sotomayor’s dissent she states, “Beginning its reading with the last clause of Section 1912(f), the majority concludes that a single phrase appearing there—“continued custody”—means that the entirety of the subsection is inapplicable to any parent, however committed, who has not previously had physical or legal custody of his child.”
It remains to be seen whether the Court’s interpretation of the language found in Section 1912(f) will unnecessarily extend to “all Indian parents who have never had custody of their children, no matter how fully those parents have embraced the financial and emotional responsibilities of parenting,” as Justice Sotomayor argues. It’s interesting to note, in footnote 11, on page 15 of the majority opinion, the Justices would seem to be addressing some of the concerns raised by Justice Sotomayor alluding to the possibility that an Indian child’s tribe could itself to action to alter Section 1915’s placement preferences provision to include “a biological father whose rights were terminated, but who has now reformed.” Might this this raise the possibility of a further claim from Biological Father in Baby Girl? It remains to be seen exactly where this case is headed to achieve resolution for all of the parties involved.
Today’s result really had no winners. Not really. At this point, after 18 months in the custody of Biological Father, baby girl’s fate now again rests in the hands of state court proceedings as well as Adoptive Couple and the Biological Father –who all must now attempt to do what’s in the best interest of this young child.
We would love to hear some of your comments on this compelling adoption case.
Cite: Adoptive Couple v. Baby Girl, et al., U.S. Supreme Court, No. 12-399.