Discussing ICWA With Your Los Angeles Adoption 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
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
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
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
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!