Notice & Comment

Baby Veronica Case Creates Confusion Regarding Indian Child Welfare Act, by Katherine Kennedy

The Supreme Court’s recent decision in Adoptive Couple v. Baby Girl created confusion concerning tribal sovereignty. The 1978 Indian Child Welfare Act (ICWA), the statute at issue, is intended to keep Native American children from being taken from their homes and typically placed with non-Native American adoptive or foster parents, in an effort to preserve familial bonds between birth parents and their children. But in a 5-4 ruling, the Court said federal law doesn’t require that a Native American child be taken away from her adoptive parents and given to her biological father. It is now uncertain how this opinion will fare for Native American rights: will this strengthen tribal sovereignty or harm it in the long run? On June 25, 2013, Chief Justice John Roberts and Justices Anthony Kennedy, Clarence Thomas and Stephen Breyer joined Justice Samuel Alito, who wrote the majority opinion. Justice Sonia Sotomayor wrote the dissenting opinion. She was joined by Justices Antonin Scalia, Ruth Bader Ginsburg and Elana Kagan.

The prospective adoptive parents filed a petition to adopt “Baby Veronica” (AKA “Baby Girl”). Her biological father, a member of a Native American tribe, opposed adoption, and the Cherokee Nation intervened. The Charleston County Family Court denied the adoptive parents’ petition and required the prospective adoptive parents to transfer the child to her father. The prospective adoptive parents appealed. The South Carolina Supreme Court affirmed the lower court’s decision. The Supreme Court granted certiorari.

The tone and outcome of this case is immediately apparent from Justice Alito’s opening paragraph:

“This case is about a little girl (Baby Girl) who is classified as an Indian because she is 1.2% (3/256) Cherokee. Because Baby Girl is classified in this way, the South Carolina Supreme Court held that certain provisions of the federal Indian Child Welfare Act of 1978 required her to be taken, at the age of 27 months, from the only parents she had ever known and handed over to her biological father, who had attempted to relinquish his parental rights and who had no prior contact with the child. The provisions of the federal statute at issue here do not demand this result.”

Adoptive Couple v. Baby Girl, 12-399, 2013 WL 3184627 (U.S.S.C. 2013).

This case turned on the fact that the child was never in the father’s custody. The Court held that this case differs from a normal interpretation of 25 U.S.C. § 1912(f) since it involves a parent that never had custody of the child. The Court further held that § 1912(d), which conditions involuntary termination of parental rights with respect to a Native American child on a showing that remedial efforts have been made to prevent the “breakup of the Indian family,” is inapplicable when, as here, the parent abandoned the child before birth and never had custody of the child. The Court further clarified that § 1915(a), which provides placement preferences for the adoption of Native American children, does not bar a non-Native American family like Adoptive Couple from adopting a Native American child when no other eligible candidates have sought to adopt the child. The Court reversed the South Carolina Supreme Court’s judgment and remanded for further proceedings.

After a tumultuous romance, the birth parents of the child in this case ceased dating and called off their engagement. Via text message, the birth mother asked the biological father if he would like to pay child support or terminate his parental rights. The biological father chose the latter option. Birth mother then decided to put Baby Girl up for adoption. Because birth mother believed that biological father had Cherokee Indian heritage, her attorney contacted the Cherokee Nation to determine whether the biological father was formally enrolled. The inquiry letter misspelled biological father’s first name and incorrectly stated his birthday. Cherokee Nation responded that, based on the information provided, it could not verify Biological Father’s membership in the tribal records.

Working through a private adoption agency, the birth mother selected the adoptive couple, non-Native Americans living in South Carolina, to adopt Baby Girl. Adoptive couple supported birth mother throughout her pregnancy and they were present at the birth. Justice Alito seemed most impressed that the adoptive father cut the umbilical cord. The next morning, birth mother signed forms relinquishing her parental rights and consenting to the adoption. Adoptive couple initiated adoption proceedings in South Carolina a few days later, and returned there with Baby Girl. After returning to South Carolina, the adoptive couple allowed the birth mother to maintain a relationship with the baby.

In this case, it was undisputed that had Baby Girl not been 3/256 Cherokee, the biological father would have had no right to object to her adoption under South Carolina law. The South Carolina Supreme Court held that the biological father is a “parent” under the ICWA and that two statutory provisions—namely, § 1912(f) and § 1912(d)—bar the termination of his parental rights. The Court did not decide whether biological father is a “parent” for purposes of these statutes, persuaded by adoptive parents’ arguments. The Court held that even if he was within the definition of the statute, the Court still held that neither § 1912(f) nor§ 1912(d) bars the termination of his parental rights.

The Court found the argument that the biological father’s custody would not cause harm to the child flawed, because according to the Court, this is not an issue of a prospective custody. The Court says that the analysis that the State Supreme Court followed hinged on the following: “Specifically, § 1912(f) provides that “[n]o termination of parental rights may be ordered in such proceeding in the absence of a determination, supported by evidence beyond a reasonable doubt, … 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.” Since the statute specifically refers to continued custody, § 1912(f), then, does not apply in cases where the Native American parent never had custody of the  child.

According to the Court, the primary mischief the ICWA was designed to counteract was the unwarranted removal of Native American children from Native American families due to the cultural insensitivity and biases of social workers and state courts. “The statutory text expressly highlights the primary problem that the statute was intended to solve: “an alarmingly high percentage of Indian families [were being] broken up by the removal, often unwarranted, of their children from them by nontribal public and private agencies.” § 1901(4).” The Court distinguished this intent from the case at bar: when, as here, the adoption of a Native American child is voluntarily and lawfully initiated by a non-Native American parent with sole custodial rights.  The ICWA’s primary goal of preventing the unwarranted removal of Native American children and the dissolution of Native American families is not implicated. Thus, since the biological father never had custody of his daughter, the South Carolina Supreme Court erred in finding that § 1912(f) barred termination of Biological Father’s parental rights.

The Court provides guidance as to the statutory term “breakup,” relating to the statute’s intent to prevent the “breakup” of familial relations by the mischief that ICWA was enacted to redress. Justice Alito held that just as the continued custody requirement was not met here to require biological father’s sought-after remedy, the term “breakup” should be read within the same context of “continued custody.” Since the biological father “abandoned” his child, he cannot claim that the adoption caused the breakup of his familial relations. So the Court held that the South Carolina Supreme Court erred in finding that § 1912(d) barred termination of Biological Father’s parental rights.

Justice Alito also held that § 1915(a)‘s preferences are inapplicable in cases where no alternative party has formally sought to adopt the child. This ICWA section states: “[i]n any adoptive placement of an Indian child under State law, a preference shall be given, in the absence of good cause to the contrary, to a placement with (1) a member of the child’s extended family; (2) other members of the Indian child’s tribe; or (3) other Indian families.” The Court held that this section does not apply because there cannot be a preference to apply if no alternative party that is eligible to be preferred under § 1915(a) has come forward. Since the adoptive couple was the only party seeking custody of the baby, and since her biological parents did not seek custody of their daughter, and since the Cherokee nation did not seek the adoption of the girl even after intervening in the adoption proceedings, the Court held that this argument also fails.

In Justice Alito’s concluding paragraph, he warns that the State Supreme Court decision would put certain vulnerable children at a great disadvantage solely because any ancestor, even a remote one, was Native American. Further, “…As the State Supreme Court read §§ 1912(d) and (f), 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.” Justice Alito also warns that if the State Supreme Court’s decision were to stand, adoptive parents would be cautious to adopt and sue to determine rights before becoming entangled in equal protection concerns and ancestors claiming custody over adoptive parents. Thus, it seems that this case has made it clear that a biological parent who wants custody of his/her child who is adopted by a non-Native American non-relative, should: be an active parent during pregnancy, pay some support during the child’s life, be active within the tribal nation, and should offer evidence that his/her continued custody would be broken up by adoption by a non-Native American non-relative couple or person. However, it is unclear how this decision will affect tribal sovereignty and if this holding will affect “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,” as Justice Sotomayor’s dissent warns.

Justice Sotomayor’s dissent outlines the implications of this holding due to the fact that the father has a federally acknowledged and protected parent-child relationship that this Act was designed to protect, and that Justice Alito’s analysis of § 1912 is too simple. According to the dissent, § 1912 does not require that a “parent” carryout the functions of a parent to keep that title. The dissent states that Justice Alito and the majority give on one hand and take from another by stating that the majority illogically concluded that ICWA’s substantive protections are available only to a subset of “parent[s]”: those who have previously had physical or state-recognized legal custody of his or her child. Further, the dissent states that such a narrow definition of “breakup” is inappropriate; noting that nothing in the text of subsection (d) indicates that a blood relationship should be excluded from the category of familial “relationships” that the provision aims to save from “discontinuance.”

However, the crux of the dissent rests in this paragraph:

“The majority is willing to assume, for the sake of argument, that Birth Father is a “parent” within the meaning of ICWA. But the majority fails to account for all that follows from that assumption. The majority repeatedly passes over the term “termination of parental rights” that, as defined by § 1903, clearly encompasses an action aimed at severing Birth Father’s “parent-child relationship” with Baby Girl. The majority chooses instead to focus on phrases not statutorily defined that it then uses to exclude Birth Father from the benefits of his parental status. When one must disregard a statute’s use of terms that have been explicitly defined by Congress, that should be a signal that one is distorting, rather than faithfully reading, the law in question.”

This case truly demonstrates the different schools of judicial interpretation currently serving on the Supreme Court bench. It seems that the textualists, originalists, and strict constructionists have carved an exception to the ICWA framework in this case. The applicability of this rule will challenge agencies to reconsider Native American child adoptions and the procedure so as to avoid challenges and trial. Only time will tell. 

This post was originally published on the legacy ABA Section of Administrative Law and Regulatory Practice Notice and Comment blog, which merged with the Yale Journal on Regulation Notice and Comment blog in 2015.

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