May 01, 2015

Indian Child Welfare Act Did Not Apply to Abandoned Child

Scott Trowbridge

The views expressed herein have not been approved by the House of Delegates or the Board of Governors of the American Bar Association, and accordingly, should not be construed as representing the policy of the American Bar Association.

In re ARW, 343 P.3d 407 (Wyo. 2015).

In case where couple brought termination action against father and where mother was allegedly affiliated with a tribe, but had voluntarily terminated her rights, Indian Child Welfare Act did not apply because father had abandoned child and did not have custody before the action was filed. Thus, there was no ‘breakup’ of an Indian family.  

The child was born in 2002. When she was three weeks old, she and her mother began living with a prospective adoptive couple. The father was incarcerated during that time. In 2004, the mother and father agreed for the couple to have physical custody of the child and signed a power of attorney. 

For many years, the father struggled with substance abuse, which led to incarcerations and child protective services involvement. On several occasions, the agency facilitated return of the child to the adoptive couple due to father’s intoxication while caring for his daughter. 

In 2012, the mother consented to termination of her parental rights after a long period when she had little involvement.

Also in 2012, the father was investigated and later convicted for sexually abusing his daughter’s friend. During the investigation, in addition to drug paraphernalia, the officers found pornography mixed in with children’s books and observed the father touching his daughter’s breast. 

Shortly thereafter, the couple petitioned to terminate the father’s rights. They alleged the father was incarcerated and unfit to have custody of the child. When the father did not file an answer, the court entered a default judgment. He then requested a continuance and was appointed counsel. The court appointed a guardian ad litem (GAL) for the child and ordered a home study. 

At the first hearing, the father claimed  the Indian Child Welfare Act (ICWA) applied because the mother was half Apache. The father claimed no tribal affiliation. 

The district court did not lift the default order, finding the father had not shown good cause for his delayed response to the petition. It concluded the termination ground was met and that the ICWA did not apply. The father appealed.

The Wyoming Supreme Court affirmed. First, the supreme court considered whether the ICWA applied. The adoptive couple argued that because the mother, who was the only one with a tribal affiliation, had already voluntarily terminated her rights, there was no ‘breakup’ of an Indian family per Adoptive Couple v. Baby Girl, 133 S. Ct. 2552 (2013). 

The Court agreed. In Adoptive Couple, the U.S. Supreme Court highlighted that the Act’s primary purpose was preventing unwarranted removals of Indian children from their families. Thus,  since the child was voluntarily abandoned by the mother before the court’s termination action, there was no ‘breakup’ of the family.