UPDATE: On June 25, 2013, in a 5-4 opinion, SCOTUS ruled that under these facts, ICWA did not block the adoption of Baby Girl by a non-Indian couple. Read the opinion in Adoptive Couple v. Baby Girl.
How is “Parent” defined under the law?
This is the question before SCOTUS in Adoptive Couple v. Baby Girl. At issue is a conflict between state adoption law and federal law under the Indian Child Welfare Act (“ICWA”). 25 U.S.C. § 1901. ICWA was passed by Congress in 1978 to counteract negative adoption practices that failed to address the unique sociopolitical status of Native American children. See, Adoptive Couple v. Baby Girl, 731 S.E.2d 550 (2012) (South Carolina Chief Justice Toal discusses the history and purpose of ICWA.)
Adoptive Couple v. Baby Girl — Facts
This case a “hot topic” for Washington attorneys because it could have easily come from Washington, given that we have 29 federally recognized tribes in our state. Baby Veronica was born after her American Indian father and a mixed-race mother broke off their engagement and cut off communications. Her father was deployed to Iraq while the mother began adoption proceedings. Her father was not informed of the birth or of the adoption proceedings, but had essentially given up his parental rights to the mother. See, e.g., here, here, or here . The Court has been asked to determine if the father can invoke ICWA to block the adoption, and if so, does he meet the definition of a parent under ICWA which does not include a putative father that has lapsed on his parental rights.
Ruling? SCOTUS should uphold the rights of the Father
Yes, a non-custodial parent should be allowed to block the adoption under ICWA. But the holding here should be very narrow. First, a ruling in favor of the adoptive couple could cause an upheaval of over 30 years of tribal adoption practice under ICWA. Also, in my opinion, it could set dangerous precedent on federal pre-emption grounds. Lastly, cases involving children are normally determined under a “best interests of the child standard.” Generally, this always includes a strong preference of placement of the child with their biological parents. Here, the father has had custody of the child for nearly two years – a best interest analysis in favor of the adoptive couple is unpersuasive at this point. Transcript of Oral Argument at 25 (Justice Ginsburg questions validity of best interest analysis). The Court must be careful not to disrupt the balance of interests between tribal adoptions, state agencies, and biological parental rights.
On the other side of the argument, upholding ICWA in this case could deter potential families from adopting Indian children with absentee fathers. Mrs. Blatt, the attorney for the adoptive parents, argued during oral arguments,
If you rule in favor of the father…you’re basically banning the interracial adoption of abandoned Indian children. There’s not a single adoptive parent in their right mind who is going to … go through these Kafkaesque hoops” and “you’re basically relegating the child … to a piece of property with a sign that says ‘Indian, keep off, do not disturb.’
To counteract this, the Supremes should make this case factually distinguishable based on the military status of the father. A “good cause” type exception would allow this case to leave the corpus of ICWA case law undisturbed while still allowing a means of judicial review to cut off parental rights in scenarios such as this one.
Finding that ICWA applies, can the father avail himself of its protections? ICWA defines parent as “any biological parent or parents of an Indian child or any Indian person who has lawfully adopted an Indian child, including adoptions under tribal law or custom. It does not include the unwed father where paternity has not been acknowledged or established. 25 U.S.C. § 1903(9). The nuanced facts here make this case distinguishable because paternity was acknowledged and established. The father decided to give up his rights to the mother– but he did not contemplate relinquishing all his rights to allow adoption. Compare Matter of Adoption of a Child of Indian Heritage, 543 A.2d 925, 937 (N.J.,1988) (Father took none of the steps to establish paternity, and court found his actions untimely under ICWA). The legal sufficiency of relinquishing parental rights via text message is a topic for another post but, in the interest of brevity, I assume that it isn’t enough. Therefore, under both inquiries the father’s parental rights should be affirmed by the Supreme Court.
Either way, Baby Veronica is luckier than most children because she has two families that love and want her. A formal decision is expected in June.
How do you think SCOTUS should rule in the Baby Veronica case? Tell us in the comments.