July 01, 2013

ICWA Did Not Apply to Father Who Never Had Custody

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, 570 U. S. ____ (2013).

Father had never had physical custody of child under state law. Therefore, since the child was born out of wedlock, provision of the Indian Child Welfare Act requiring active efforts to prevent the breakup of an Indian family and provision requiring evidence that continued custody would seriously harm the child, did not apply to bar termination.

This case arose from a dispute over a private adoption where the mother, but not the father, had consented. The parents were engaged in December 2008. One month later, the mother informed the father she was pregnant. The father pressured her to marry him sooner, but several months later she broke off the engagement. In June, the mother sent the father a text message asking if he would rather pay child support or relinquish his rights. He responded that he would relinquish his rights.

The mother contacted a private adoption agency and selected the adoptive couple, a non-Indian couple in South Carolina. Her lawyer contacted the Cherokee Nation via letter. His name and birthdate were incorrect however and the Nation responded that they could not verify his membership.

The adoptive couple supported the mother through her pregnancy and were present at the birth in September 2009. The mother completed a relinquishment and the couple began adoption proceedings.

The court noted that the father had not supported the mother through the pregnancy to the age of four months, though he was financially able. When the child was four months old, the father was first served an adoption notice. Though he signed the notice and indicated he did not contest the adoption, he later testified that he believed he was merely relinquishing his rights to mother. The day after receiving notice, he requested a stay of the proceedings.

The trial did not occur until the child was two years old in September 2011. The family court concluded the adoptive couple had not shown the child would suffer serious emotional or physical damage if the father was given custody. Thus, the family court denied the adoption petition and awarded the father custody.

The South Carolina Supreme Court affirmed the trial court holding that the adoptive couple had failed to prove awarding the father custody would cause serious emotional or physical harm. It further found that active efforts to prevent the breakup of the family had not been proven. Last, it held that even if it terminated parental rights, adoptive preferences would apply. The adoptive couple appealed.

The U.S. Supreme Court granted certiorari and reversed.

The Court first addressed the ICWA requirement that a qualified expert witness testify that “the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child.” The Court examined a number of dictionary definitions of ‘continued’ and concluded that the provision only applied when a parent “has (or at least had at some point in the past)” had custody. Thus, it held, this provision did not apply because the father never had custody of the child. He had not had physical custody at the time of the hearing and state law provided that custody defaulted to the mother in the case of a birth outside of marriage.

The next provision relied on by the South Carolina Supreme Court required that any party seeking involuntary termination of an Indian child must show that active efforts were made to prevent the breakup of the Indian family and these efforts proved unsuccessful.

The U.S. Supreme Court, similar to the first provision, found the term ‘breakup’ encompassed intact families. In this case, it held the father abandoned the baby and there was no relationship to ‘break.’

Regarding adoptive preferences, the court held the section only applied when multiple parties seek to adopt a child. Here, since only one adoptive couple had done so, and the father sought custody, not adoption, this section did not bar termination or adoption by the adoptive couple.