Next month, the United States Supreme Court will hear oral arguments in Adoptive Couple v. Baby Girl, a case examining the Indian Child Welfare Act (ICWA), which Congress passed in 1978 to give tribes significant input into the removal of children from them. Under the terms of the ICWA, efforts must be made to support and rehabilitate a family before its child is placed into foster care or adopted. Furthermore, according to ICWA, existing parental rights will not be terminated unless the court finds beyond a reasonable doubt that "continued custody" of the child by the biological parent is likely to cause significant harm to the child. The goal of the Act was to limit interference with Indian families, which at the time was relatively significant.
This case arose from a battle over a Cherokee child between the biological father and the adoptive parents. In late 2008, a young mother of two ("Birth Mother") living in Oklahoma became engaged to Dusten Brown, a registered member Cherokee nation. In January 2009, she informed Dusten that she was pregnant. He urged her to marry him sooner than planned. Not willing to comply, she ended the engagement in May 2009. The following month, Birth Mother began to make arrangements for the adoption of her unborn child. She asked Brown whether he would rather pay child support or relinquish his parental rights. In a text message, he agreed to relinquish his rights but asserts that he knew nothing about the adoption and believed he was giving full parental rights to Birth Mother.
Through an adoption agency, Birth Mother connected with a couple from South Carolina, Matt and Melanie Capobianco. The Capobiancos spoke to Birth Mother regularly and provided financial assistance throughout the end of her pregnancy. They also hired an attorney to make inquiries into the status of the baby's father with the Cherokee Nation. Due to a misspelling and an inaccurate birthdate in the inquiry, the Cherokee Nation reported that they could not verify Brown's membership in the tribe. Thus, it seems that the Capobiancos were under the impression that the baby was not Cherokee.
The Capobiancos were present in the delivery room when the baby was born September 15, 2009 in Oklahoma. The next day, Birth Mother signed the papers relinquishing her parental rights and consenting to the adoption. The Capobiancos remained in Oklahoma with the baby for the following week until cleared to take the baby home to South Carolina by the Oklahoma Interstate Compact on Placement of Children.
In their brief in opposition to cert, the birth father and Cherokee Nation stated that the paperwork signed by the mother reported the baby's ethnicity as Hispanic instead of Native American. However, the brief for the guardian ad litem, who represents the child's interests, stated that the Birth Mother in fact affirmatively recorded the baby's ethnicity to be "Caucasian/Native American Indian/Hispanic," with "Hispanic" circled. According to the guardian ad litem, however, Birth Mother testified that she did not circle "Hispanic" and did not know who did so. The guardian ad litem further stated that the baby was indeed predominantly Hispanic with some Native American and Caucasian background. Specifically, Birth Mother is primarily Hispanic and Brown is 3/128th Cherokee, with the result that their baby is 3/256th Cherokee. In her brief of amica curiae in support of the adoptive parents, the Birth Mother stated that she remained forthright about the biological father's Cherokee heritage throughout the adoption process, and that the undisputed record showed that she disclosed this information on the adoption agency's form and told her attorney.
In January 2010, days before being deployed to Iraq, Brown, the biological father, received notice of the adoption proceedings in South Carolina. In response, he sought to establish paternity and reclaim his parental rights. The dispute was taken up in the South Carolina courts, where paternity was established. In September of 2011, the South Carolina court held a trial and found that, under the Indiana Child Welfare Act, the adoption could not proceed. The court of appeals affirmed this decision in December 2011, and custody of the baby, now named Veronica, was given to her birth father, who took her back to Oklahoma. By this time, Veronica was just over two years old and had known no family other than the Capobiancos.
The Capobiancos appealed to a divided South Carolina Supreme Court, which affirmed the trial court's decision "with a heavy heart," stating that the ICWA superseded state adoption law. The court was compelled to affirm the denial of adoption and transfer of custody because (1) the birth father had not given consent to the adoption; and (2) the court could not conclude beyond a reasonable doubt that the transfer of custody would harm the child.
The issues now before the United States Supreme Court are 1) whether a non-custodial Indian parent can use the ICWA to block an adoption voluntarily and lawfully initiated by a custodial non-Indian parent under state law; and 2) whether the ICWA definition of "parent" includes an unwed biological father who has not complied with state law rules to attain parental rights.
These issues were not the primary decisive factors in the opinion of the South Carolina Supreme Court, which instead focused far more on the best interests of the child under the ICWA. As to the two issues before the U.S. Supreme Court, the South Carolina court showed little reluctance in 1) allowing the non-custodial biological father to invoke the ICWA and 2) concluding that the ICWA superseded South Carolina law in terms of what a biological father must do to assert his parental rights.
As to the first issue, the Capobiancos argue that the ICWA cannot be invoked under these facts because the ICWA was clearly intended to prevent the break-up of existing Indian families but, in this case, there was no existing Indian family because Brown did not have custody. In fact, Brown and Birth Mother never shared a home, he had no contact with the baby at any time, and he did not support the mother or child financially.
The birth father and the Cherokee Nation respond that nearly every state, including the Supreme Court of South Carolina in this case, have rejected this argument made by the Capobiancos. In fact, both the majority and the dissent in the South Carolina decision agreed that rejection of the "existing Indian family" exception to the protections of the ICWA was appropriate. Since the doctrine is fading on its own, Brown and the Cherokee Nation argue, there is no need for the Supreme Court to consider it and the decision of the South Carolina Supreme Court should stand.
As to the second issue, the definition of "parent" in the ICWA specifically excludes "the unwed father where paternity has not been acknowledged or established." In the balance created by federalism, it is typically left to state law to govern such family-related matters as the establishment of paternity and parental rights. The South Carolina courts, however, said that the ICWA offered greater protection to Indian fathers than South Carolina paternity laws. Therefore, Brown's efforts to regain custody of the child after learning of the adoption proceedings and his DNA testing were enough to "acknowledge or establish" his paternity. In effect, this decision left the determination of paternity up to federal law despite the fact that such determinations are usually governed by state law.
The Capobiancos argue that Brown did not establish or acknowledge his paternity for purposes of halting an adoption under South Carolina law because he neither lived with the mother or child prior to the adoption nor provides any financial support through the pregnancy. The Capobiancos characterize Brown's efforts to stop the adoption and prove his relationship via DNA testing as simply coming too late in the process to establish parental rights.
Brown and the Cherokee nation point out that there was no disagreement among the South Carolina justices on this issue. Both the majority and dissent agree that establishing paternity for purposes of contesting an adoption under the ICWA cannot be collapsed into establishing paternity under South Carolina law because the purpose of the ICWA is to provide greater protection for Indian parents and children. Therefore, according to them, the ICWA supersedes South Carolina law regarding termination of parental rights.
In reaching its decision, the Supreme Court will have to consider the weight of the federal ICWA legislation and state parental rights. It would not be surprising if the all-important child's best interests played a role in the decision, as well.
The case is Adoptive Couple v. Baby Girl, No. 12-399.
The author would like to thank Susan David DeMaine for her invaluable assistance with this post.