Adoption, Parental Rights And Native Americans – The Supreme Court Makes A Clear Statute Confusing

On behalf of The Marks Law Firm, L.L.C. posted in Adoption on Tuesday, July 2, 2013

Child custody cases rarely involve federal statutes, as most child custody cases revolve around state law. One of the few federal statutes that control child custody proceedings is the Indian Child Welfare Act (ICWA), enacted by Congress in 1978 to protect Indian (which will mean Native American) families so that non-Indians, no matter how well-intentioned, could not “poach” Indian children from their parents through adoption. The ICWA puts the burden on the party seeking adoption to show that significant efforts have been made to preserve the relationship with the child and its Indian family, and that continued custody with the Indian family would put the child at risk of emotional or physical harm.

In South Carolina, a non-Indian mother and Indian father had a relationship that resulted in mother becoming pregnant. Father wanted to marry before the birth of the child, mother did not, and the relationship deteriorated. Mother sought to put the child up for adoption and retained an attorney. Believing the child might be of Indian heritage, mother conducted a search of the tribal registry, but due to a spelling error, wrongly concluded father was not included. Mother found an adoptive couple, and they were even present at the birth. When adoptive couple sought from father a relinquishment of parental rights, he initially agreed, believing he was giving his rights up to the biological mother. When he realized his error, he asked for a stay of the adoption. The case ended up in family court in South Carolina, and the court found the ICWA applied and that the adoption violated the ICWA because no record established the child would not be fine in the custody of father. So, after two years in the custody of the adoptive couple, the child began living exclusively with the biological father. The case continued on appeal in South Carolina and eventually reached the U.S. Supreme Court – but in this period of time (more than two years) the child remained with the biological father.

Last week, the U.S. Supreme Court, in the case of Adoptive Couple v. Baby Girl, decided 5-4, in an opinion written by Justice Alito, found in favor of the adoptive couple and did so through a very constricted interpretation of the ICWA. Without question, biological father qualifies as a parent and the child qualifies as a child under the ICWA. The only way to escape the protection of the ICWA would be to sidestep the provision that states “continued custody” with the biological parent would be harmful to the child. The Court managed this sidestep by interpreting “continued custody” to mean that the biological parent had to have had custody at the time of the hearing – even though a plain reading of the statute suggests it means that any future continuing custody with the biological parent would be harmful to the child. By this questionable reading of the ICWA, the Court created a loophole that significantly burdens any Indian parent who did not have custody of the child prior to the adoption proceeding. In short, the Court ruling removes from ICWA protection all noncustodial Indian fathers who were not notified of the adoption proceeding in advance or otherwise asserted their parental rights – the very type of “poaching” the ICWA was created to prevent.

The Supreme Court sent the case back to the South Carolina court for reconsideration. Ironically, because the Indian parent has had custody for such a long period, the family court could rule, under the traditional “best interests” standard, that remaining with the Indian parent is better for the child than living with the adoptive parents – so the natural father could still retain custody. But the long-term damage to the ICWA has been done.

The takeaway from the case for fathers who believe they may be protected by the ICWA – try to establish paternity as quickly as possible in state court, and do not agree to any relinquishment of parental rights.

If you have questions about the ICWA or custody in paternity or adoption cases, contact us – we can help.

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