Indian Child Welfare Act: Supreme Court Rules in Favor of Pre-Existing Family Doctrine

The U.S. Supreme Court issued a new opinion on the Indian Child Welfare Act (“ICWA”) last month.  The Court held that ICWA did not apply in cases where the Indian parent had no existing relationship with the child, other than biological.  Adoptive Couple v. Baby Girl, June 25, 2013, S. Ct. 12-399

Those of us who believe that orphaned Indian children, like the baby girl here, should be treated just like any other orphaned child, will be heartened by the decision.  Those of us who believe that all orphaned Indian children should be sent to the Reservation, regardless of how tenuous their ties to the Reservation may be, will be chastened by the decision.

I personally fall into the former category.  Most of my Indian Child Welfare Act clients are non-tribal members attempting to gain custody of infants who may be Indian by virtue of their blood line, but who have never had any contact with the Reservation or their Indian parent(s).  In my view, if an infant is thriving in a stable, loving home she should be allowed to stay there, regardless of any Indian ancestry.  This case will help those clients.

The case pitted a prospective adoptive couple against an Indian father.  I happen to know something about the prospective couple because I met the mother when I was giving a presentation on ICWA in Washington DC last year.  They appeared to be ideal parents.  They both had stable jobs, Ph.Ds, (I’m pretty sure they were both psychologists) and seemed like excellent parents.

In addition, per the Supreme Court, the prospective adoptive parents provided financial and emotional support to the mother during and after her pregnancy.  The father even cut the umbilical cord in the delivery room at the hospital.  They also let the mother have contact with Baby Girl after she was born.

The biological father, on the other hand, was a deadbeat.  The Supreme Court found the following facts about him.

  • He provided absolutely no financial or emotional support to the mother during or after her pregnancy, even though he had the means to do so;
  • He never saw the child or had any contact with her;
  • While pregnant, the mother sent him a text message asking if he would prefer to pay child support or to relinquish his parental rights.  His return text message: relinquish parental rights;
  • After the child was born, he signed papers indicating he was “not contesting the adoption;”
  • He did not allow Baby girl any contact with the prospective adoptive parents after she was delivered to him.

However, when push came to shove, the father contested the adoption in state court.  The state court, South Carolina, denied the adoption petition and awarded custody of the child to the father.  The South Carolina Supreme Court affirmed.

Thus, at the age of 27 months, Baby Girl was removed from the only home she ever had and placed with a complete stranger.

The U.S. Supreme Court reversed and remanded.  Now the South Carolina Court will have to determine if, based on state law, the child should be removed from her current home and returned to her previous home.

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