Continuation of Indian Child Welfare Act and Recent Supreme Court Decision

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Back in April, I wrote a blog piece about a South Carolina Supreme Court’s decision to remove Baby Girl Veronica (Baby Girl) from her adoptive parents and give custody to her biological father, Dusten Brown.  Since then, the adoptive parents, the Capobiancos, have appealed to the United States Supreme Court to reconsider the state court’s decision and represent the best interests of the child.  The Supreme Court granted certiorari and, in June, reversed the state Supreme Court’s judgment and remanded the case to the lower courts for further proceedings to determine who will be allowed to adopt Baby Girl.

The Indian Child Welfare Act of 1978 (ICWA) (25 U.S.C. §§ 1901-1963),  basically provides that (1) no termination of parental rights may be ordered without showing 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 (§1912(f)); (2) any party seeking involuntary termination of parental rights to an Indian child under state law must demonstrate that active efforts have been made to prevent breakup of the Indian family and these efforts have proved unsuccessful (§1912(d)); and (3) adoptive preference is given to the child’s extended family, other members of the child’s Indian tribe, or other Indian families (§1915(a)) to assure the continued existence and integrity of Indian tribes (§1901(3)).

The Supreme Court ruled 5 to 4 that Baby Girl’s biological father, Brown, did not qualify as a “parent” under the statutory definition because he did not have “continued custody” of the child.  In the majority opinion, Justice Alito wrote that it would be “unusual to apply [the Indian Child Welfare Act] in the context of an Indian parent who abandoned a child prior to birth and who never had custody of the child.”

However, Adoptive Couple v. Baby Girl is not completely black and white.  The Supreme Court is clearly divided on this issue, and the 5-4 decision reflects the complexity of this case.

Justice Alito delivered the majority opinion, joined by Chief Justice Roberts, Justice and Kennedy.  Justices Thomas and Breyer wrote concurring opinions.  The dissent, written by Justices Sotomayor, was joined by Justices Scalia, Ginsburg, and Kagan.

Justice Breyer and the majority seemed to be more emotionally affected by the story of Brown refusing to give child support and giving up his parental rights via text message and stated that Brown did not qualify as a parent, both by statutory definition and by his irresponsible actions of having “next-to-no involvement with his child in the first few months of her life.”  Brown relinquished custody of his child in-utero and thus never had custody of Baby Girl.  Subsequently, Baby Girl was voluntarily and lawfully put up for adoption by her non-Indian mother, who did have custody.  Baby Girl’s adoption proceedings did not break up an Indian family, because Brown never had a relationship with Baby Girl to begin with; in fact, the majority argues, Brown broke up his own family by refusing child support and giving up his parental rights to Baby Girl.  The majority also emphasizes that had Baby Girl not been 3/256 Cherokee, Brown would not have the right to object to her adoption under state law.

The Indian Child Welfare Act was enacted to help preserve the cultural identity and heritage of Indian tribes, but under the State Supreme Court’s reading, the Act would put certain vulnerable children at a great disadvantage solely because an ancestor – even a remote one – was an Indian.  As the State Supreme Court read [ICWA], a biological Indian father could abandon his child in utero and refuse any support for the birth mother – perhaps contributing to the mother’s decision to put the child up for adoption – and then could play his ICWA trump card at the eleventh hour to override the mother’s decision and the child’s best interests.

Lastly, the Capobiancos were the only party seeking to adopt Baby Girl.  Neither Brown nor Baby Girl’s paternal relatives sought custody.  It would be “bizarre” to require prospective adoptive parents to “stimulate a biological father’s desire to be a parent… [and] it would surely dissuade some of them from seeking to adopt Indian children.”

Justice Thomas’s concurrence focused more on the constitutionality of applying the ICWA to child custody proceedings, and less on Brown’s suitability as a parent.  He argued that the Cherokee Nation had no jurisdiction over Baby Girl, as neither Baby Girl nor Brown was ever domiciled on an Indian Reservation, and therefore “[this] case …does not directly implicate Congress’ power to ‘legislate in respect to Indian tribes.’…Nothing in the Indian Commerce Clause permits Congress to enact special laws applicable to Birth Father [such as ICWA] merely because of his status as an Indian.”  He concluded that application of ICWA would be unconstitutional because Congress lacks authority to regulate the child custody proceedings of this case.

As part of the dissent, Justice Scalia took a more rational approach and criticized the majority for “needlessly demean[ing] the rights of parenthood” by ignoring the common law right of a father to raise his child:  “We do not inquire whether leaving a child with his parents is ‘in the best interest of the child.’ It sometimes is not; he would be better off raised by someone else.  But parents have their rights, no less than children do… There is no reason in law or policy to dilute [this father’s right to raise his daughter].”

The dissent criticized the majority of failing to see the provisions of the statute in a holistic manner and distorting them over a “policy disagreement with Congress’ judgment” by using a single phrase – “continued custody” – to misapprehend the ICWA’s structure and scope.  The Justices expressed concern about how the majority’s holding will affect other Indian parents without physical or legal custody in the future:

…[N]otwithstanding the majority’s focus on the perceived parental shortcomings of Birth Father, its reasoning necessarily extends to all Indian parents who have never had custody of their children, no matter how fully those parents have embraced the financial and emotional responsibilities of parenting.  The majority thereby transforms a statute that was intended to provide uniform federal standards for child custody proceedings involving Indian children and their biological parents into an illogical piecemeal scheme.

Justice Sotomayor argued that the ICWA defined “parent” broadly to include “any biological parent…of an Indian child” and argued that Brown qualified as a “parent” of Baby Girl, who is undisputedly an Indian child, albeit only 3/256 Cherokee, within the meaning of the ICWA.  The dissent further disputed the majority’s construction of “continued custody” and “breakup” as being too narrow.  Brown, as Baby Girl’s biological father, was re-seeking custody of his daughter, and nothing in the ICWA excludes this father-daughter relationship from the familial “relationships” that the ICWA aims to protect from “breakup.”

The dissent conceded that laws (even outside the context of ICWA) protecting a biological father’s rights to his child “can lead…to outcomes that are painful and distressing for both would-be adoptive families, who lose a much wanted child, and children who must make a difficult transition,” but recognized that “biological fathers have a valid interest in a relationship with their child.”

Overall, the dissent accused the majority for its “hollow literalism,” distorting the ICWA, and ignoring Congress’ purpose of preserving the existence and integrity of Indian families and tribes.

Having read both sides of the argument, I cannot help but side with the dissent, not necessarily because I agree with one interpretation over the other, but because I know that the majority’s holding may tear apart a little girl from her family once again.  Previously, I hoped the Capobiancos would win their little girl back, but because of the way the System works, Baby Girl has been with Brown for more than 18 months.  18 months is an eternity for young children, and by now, unfortunately, Veronica may not remember much about her first parents.

As a mother of an almost-4 year old girl, it is truly heartbreaking to have to imagine the terrible emotional trauma and anguish of a young girl who had suffered and has now barely recovered from the tragedy of being taken away from the only family she knew, to have to live through another removal, just as she established a new relationship with her biological father.

If the Capobiancos really cared for the well-being and best interests of their little girl, it may be best to let little Veronica’s wound heal, with her father.  It is also truly unfortunate that Veronica has no say in her own fate.  After all, she will be the most affected of all parties involved.



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