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September 01, 2012

Father Entitled to Custody Over Adoptive Parents

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.

Adoptive Couple v. Baby Girl, 2012 WL 3042287 (S.C.)

Trial court properly denied adoption petition and granted father custody where no active efforts were provided to place the child with the father and father did not validly consent to adoption. The potential short-term trauma of removing child from prospective adoptive parents did not overcome high standard of emotional harm under ICWA.

A child was born to parents who were engaged when the mother learned she was pregnant. The parents’  relationship deteriorated before the child’s birth. In text messages between the parents, the father indicated he would relinquish his rights. He testified later that he thought this only meant he would give up his rights to the mother.

The mother testified she planned to put the child up for adoption because she was struggling financially. She never informed the father she planned to seek adoption. She approached an adoption agency and helped select prospective adoptive parents. They had regular contact leading up to the birth and helped support the mother.

Before the birth, mother’s attorney sent a letter to the Cherokee Nation of Oklahoma where the mother believed the father was enrolled. However, the letter had his name misspelled and an incorrect birth date. When the Nation indicated they could not verify his enrollment, the mother again confirmed with her attorney that she believed he was enrolled.

Four months later, the father was served with the adoption petition and a purported answer consenting to the adoption. The father quickly realized then that he was not being asked to consent to relinquish his rights to the mother, but to another adoptive couple. He filed to stay the adoption proceedings and establish paternity, and sought custody a week later in Oklahoma.

Over the next several months, the courts established the father’s paternity and jurisdiction in South Carolina. The Cherokee Nation also confirmed that he was a registered member and intervened in the case.

After a four-day hearing, the family court denied the adoption petition and ordered the child placed with the father. The prospective adoptive parents appealed to the South Carolina Supreme Court.

On appeal the adoptive parents argued that the father did not meet the definition of a ‘parent’ under the Indian Child Welfare Act (ICWA). They claimed that because the ICWA does not identify procedures for establishing paternity, state law governs. As an unwed father, he needed to prove more than biology to confer his status as a parent. The adoptive parents pointed out that he did not support the mother through her pregnancy or pay child support. The Supreme Court, however, agreed with the trial court that the ICWA gave greater protection to an unwed father, and the father’s actions to establish paternity after learning of the adoption proceeding were sufficient to make him a legal parent. 

The South Carolina Supreme Court affirmed, finding that the father had not voluntarily relinquished his rights. The paperwork purporting to provide an answer and consent for adoption given to him by the process server did not comply with South Carolina law that requires a signature of a judge and indication that the effects of relinquishing parental rights were fully explained. Further, under ICWA, the father could revoke his consent, which his pleadings would have effectively done.

As to involuntary termination, the ICWA requires active efforts be provided to a parent and that those efforts fail before parental rights can be involuntarily terminated. In this case, the Supreme Court found no efforts were provided. The adoptive parents argued that any efforts would be futile because the father did not actively intend to parent the child. The Court found this argument lacked merit. Though the father may have failed to assume parental responsibilities early on, his concerted efforts to pursue the case later showed sufficient commitment.

Under ICWA, the petitioner also must show that returning a child to the parent would result in serious physical or emotional damage. The trial court heard from experts from the adoptive parents and the father. It concluded that although there may be short-term trauma in moving the child, the long-term prospects were good; the father had a safe home and a good relationship with an older daughter. The South Carolina Supreme Court agreed.

The Court further concluded that ICWA superseded state law regarding other termination grounds.