Remember that your children are not your own, but are lent to you by the Creator.
— Native American Proverb
The story of 4-year-old Baby Veronica in Adoptive Couple v. Baby Girl, 2013 WL 3184627 was lost amid other SCOTUS decisions last week. The case juxtaposed state adoption law with provisions of the Indian Child Welfare Act (ICWA), 25 USC §1901. Previously, I argued that the Supreme Court should affirm the rights of the father, partially based on a best interest of the child analysis. However, in a narrow 5-4 opinion, the Court essentially held that the father’s actions to block the adoption of his biological child were too little, too late.
Majority: No physical custody, no relationship, no ICWA relief
The majority reasoned that Father could not be granted relief under two major provisions of ICWA. First, under §1912(f) of the act, parental rights can only be terminated by providing additional evidence to demonstrate that “serious harm… will result from continued custody of the child by the parent.” Id. The court reasoned that in order to trigger the heightened standard of review under §1912(f), there must be a “pre-existing” state of custody by the parent. Construing the term “custody” by its strict dictionary definition, the majority held that because Father never had actual custody, ICWA was inapplicable.
Secondly, the court denied Father relief under §1912 (d) which seeks to prevent the “break up of the Indian family.” Denial under this provision was primarily based on an interpretation of the legislative intent of ICWA. The statute was passed in 1978 to protect the unique socio-cultural status of Indian families. Reasoning that since Father never had actual custody of the child and had abandoned the child before birth, the court held that there was never actually an “Indian family” to split. Thus, the facts here did not meet the scenario the statute was designed to protect.
Dissent: “Literalness strangles meaning.”
Sotomayor’s dissent argues that the “majority’s hollow literalism distorts the statute and ignores Congress’ purpose.” She poignantly counters the majority’s conclusions on both grounds. She argues that the majority reads the statute in isolation and out of context. Secondly, in response to the assertions that there is “no relationship” and “no family to destroy” under §1912(d), she counters, “Says who?” At the end of the decision, she argues that the majority ignores the best interest of the child and the possible implications of this narrow ruling on other situations involving absentee fathers.
Impact on Washington
The impact of this case on Washington state proceedings is minimal, because Washington has adopted statutory safeguards to protect parental rights. In Washington, adoptions must have the consent of the father, absent termination of his parental rights. Furthermore, parental rights can only be terminated through a heightened evidentiary standard and a best interest of the child analysis. RCW 26.33.020, 120-160.
Questions remain: Constitutional challenges? A home for Veronica?
In his concurrence, Justice Thomas questioned the constitutionality of ICWA. The majority opinion consciously sidestepped issues of unconstitutionality based on the lack of plenary powers of Congress via the Indian Commerce Clause to regulate adoption proceedings, as well as unconstitutionality based on equal protection grounds.
On Friday, Justice Alito ordered that the ruling in this case would be effective in a week to expedite an ultimate determination of where Veronica will live. Currently, she is still with her father and questions remain as to potential grandparent custody rights under ICWA.