July 1, 2013 -- The Indian Child Welfare Act (ICWA) was enacted by the United States Congress in 1978, to address "the consequences to Indian children, Indian families, and Indian tribes of abusive child welfare practices that resulted in the separation of large numbers of Indian children from their families and tribes through adoption or foster care placement, usually in non-Indian homes." (Mississippi Band of Choctaw Indians v. Holyfield (490 U.S. 30, 32 (1989).) As stated by Congress, the purpose of the ICWA was:
"... to protect the best interest of Indian children and to promote the stability and security of Indian tribes and families by the establishment of minimum federal standards for the removal of Indian children from their families and the placement of such children in foster or adoptive homes which will reflect the unique values of Indian culture. ..."
According to Congressional findings and the ICWA, it is to be presumed that it is in the best interest of Indian children to be raised in Indian homes.
In simple terms, the ICWA generally has meant that before parental rights can be terminated with regard to any child eligible for membership in a federally recognized Indian tribe, the tribe must be notified and given an opportunity to participate in the proceedings. A system of placement preferences also has been created, whereby placement within the tribe generally is preferred to placement with a non-family member outside the tribe. Thus, while in a non-Indian adoption, only the birth parents have standing to object to the adoption; in an ICWA adoption, the tribe also has standing.
The application of the ICWA to dependency matters -- where generally a child is being removed from his or her established home due to abuse or neglect and the parents are threatened with involuntary termination of their parental rights -- is largely uncontroversial. The adoption community generally agrees that involuntary terminations of the rights of Indian parents should only be done in strict compliance with the ICWA. However, there is significant controversy about the applicability of the ICWA to voluntary placements of newborns for adoption by fit birth mothers. It is in this context that Adoptive Couple v. Baby Girl arises.
The Baby Girl case is factually tragic. It involves an unplanned pregnancy by a Hispanic woman who was involved with a Cherokee man. The two were engaged to be married at the time of the pregnancy, and when the Birth Father learned of the pregnancy he tried to convince the Birth Mother to move up their wedding date. Instead, the relationship deteriorated. At some point, the Birth Father indicated a willingness to have his parental rights terminated rather than pay child support; however, it also appears that the Birth Father did not understand that the Birth Mother intended to place the child for adoption rather than raise the child herself.
The Birth Mother voluntarily placed the child for adoption with a non-Indian couple at birth ("Adoptive Couple"), and the couple took the child home with them to South Carolina. Birth Father was not contacted about the adoption until Baby Girl had been with the Adoptive Couple for four months. Although he initially consented to the adoption, within a day of signing his relinquishment papers he contacted legal counsel and promptly thereafter requested a stay of the adoption and custody of his daughter. What followed were two years of legal battles in the trial court, at the end of which the trial court denied Adoptive Couple's adoption petition and awarded custody to Birth Father. At the age of 27 months, Baby Girl was removed from the Adoptive Couple's home into the custody of her Birth Father whom, up until then, she had never met.
The trial court's decision in favor of the Birth Father was affirmed by the South Carolina Supreme Court, which concluded that the Birth Father was a "parent" within the meaning of the ICWA even though he had not taken steps necessary to securing his parental rights under South Carolina state law. The Adoptive Couple appealed this ruling to the United States Supreme Court and, on June 25, 2013, they won their appeal. Despite this outcome, it remains unclear what will happen to Baby Girl, who now has been in the custody of her biological father and his extended family, being raised within the Cherokee Nation, for the past 18 months with no contact with Adoptive Couple.
As with so many Supreme Court decisions of late, this was a 5-4 ruling. Justice Samuel Alito delivered the opinion of the court, joined by Chief Justice John Roberts and Justices Anthony Kennedy, Clarence Thomas, and Stephen Breyer. Justice Antonin Scalia filed a dissenting opinion, and Justice Sonia Sotomayor filed a separate dissenting opinion in which Justices Ruth Bader Ginsburg and Elena Kagan joined. Justice Thomas and Justice Breyer each filed separate concurrences, making for a total of five separate opinions.
The majority opinion relied almost exclusively on language about "continued custody" found in the ICWA §1912(f), which states that: "No termination of parental rights may be ordered ... in the absence of a determination, supported by evidence beyond a reasonable doubt, including testimony of qualified expert witnesses, 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." (Emphasis added.) The majority found that "Contrary to the [South Carolina] Supreme Court's ruling, we hold that ... §1912(f) ... does not apply when, as here, the relevant parent never had custody of the child." In other words, the Court differentiated between the placement at birth of an Indian child in a non-Indian home -- without the child ever having been in the custody of an Indian parent -- and removal of an Indian child from an existing Indian family that had previously had custody of the child. By the Court's analysis, the ICWA would not apply in the former case, but would in the latter. In more confusing language, the Court also found that "[ICWA] §1915(a), which provides placement preferences for the adoption of Indian children, does not bar a non-Indian family like Adoptive Couple from adopting an Indian child when no other eligible candidates have sought to adopt the child."
What Will This Decision Mean for Adoptions?
It is too soon to know the full legal implications of the Baby Girl decision. Many adoption attorneys applaud the decision, having seen how hard it can be to find permanent adoptive homes for Indian babies in need of placements, due to the fears of non-Indian potential adoptive parents that their adoptions will be disrupted and that they will end up in lengthy and devastating litigation as happened to Adoptive Couple. Detractors fear that the Supreme Court has dealt a serious blow to the ICWA, undermining the cultural integrity of Indian tribes around the country and once again allowing their children to be taken from them and placed in non-Indian homes without their consent.
In addition to some uncertainty about what the Baby Girl decision actually will mean with regard to the federal ICWA, it is impossible to know yet what effect -- if any -- the decision will have on state ICWAs. California has its own ICWA, codified in the adoption statutes and the California Rules of Court. Further, in California -- as in many states -- adoptions can be removed to Tribal Courts, where tribal laws apply. (See Rules of Court, rule 5.483.) What is clear for now is that nothing about the Supreme Court decision changed the requirement that tribes receive notice of any adoption of an Indian child. Beyond that, only time will tell what this decision means for Baby Girl, or for the rest of us.
Deborah H. Wald is the founder of Wald & Thorndal, PC, a full-service family law practice in San Francisco. She is a member of the Family Law Executive Committee of the State Bar of California, and a fellow of the American Academy of Assisted Reproductive Technology Attorneys and the Academies of California Adoption and Family Formation Lawyers.