Review of SCOTUS Decisions - End of 2012 - 2013 Term --- Adoptive Couple v. Baby Girl

Today I would like to look at another one of the last decisions issued by SCOTUS in the 2012 - 2013 Term.  It is a case which addresses three provisions of the Indian Child Welfare Act.  The case is Adoptive Couple v. Baby Girl, 570 U.S. ___ (2013).

The Indian Child Welfare Act (ICWA) establishes federal standards for state court child custody proceedings involving Indian children.  Congress enacted ICWA to address the consequences of abusive child welfare practices that separated Indian children from their families and tribes through adoption or foster care placement, usually in non-Indian homes. see Mississippi Band of Choctow Indians v. Holyfield, 490 U.S. 30 (1989).

 There are three specific provision of ICWA that were addressed in  Baby Girl:  Section 1912(d), Section 1912(f) and Section 1915(a).

Section 1912(d) requires that any party seeking an involuntary termination of parental rights to an Indian child under state law must demonstrate that "active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and that these efforts have proved unsuccessful."

Section 1912(f) sets forth that a state court may not involuntarily terminate parental rights to an Indian child "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."

Section 1915(a) sets forth, with respect to adoptive placements for an Indian child under state law, that "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."

In Baby Girl, the father, who was a Native American with Cherokee heritage, provided no support for the birth mother, who was not Native American, nor did he provide any support for the child or make any meaningful attempts to assume parental responsibility.  When the family selected by the mother to adopt Baby Girl  gave the father notice of the pending adoption he did not initially object.  However, before the adoption could be finalized he sought a stay of the proceedings and sought custody.  Ultimately, a trial was held in a South Carolina state court when the child was two years old.  The Family Court determined that the adoptive couple did not carry the heightened burden under 1912(f) of proving that Baby Girl, would suffer serious emotional or physical damage if the biological father had custody.  The petition for adoption was denied and custody awarded to the biological father.  At age 27 months, the child was handed over to the biological father whom she had never met.  The South Carolina Supreme Court affirmed the Family Court's denial of the adoption and awarding of custody to the biological father.  It found that the biological father came within the ICWA definition of "parent" and that the requirements of 1912(d) and 1912(f) were applicable and were not proven.  It also stated that if it had decided to terminate the biological father's parental rights that the provisions of 1915(a) - the adoption placement preferences -- would have applied.  SCOTUS granted certiorari and reversed the decision of the South Carolina Supreme Court.

In the decision of the Court, Justice Alito, writing for the Court, indicated that neither 1912(f) nor 1912(d) bars termination of the biological father's parental rights in this case.

With respect to 1912(f), Justice Alito wrote that 1912(f) requires as a condition precedent that the parent at issue have custody of the child in the first instance since 1912(f) sets forth that "no 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." (emphasis added). The Court held that the adjective continued is critical in the analysis and plainly refers to a pre-existing state.  As a result, 1912(f) does not apply to an Indian parent who never had custody of the Indian child.

With respect to 1912(d), Justice Alito wrote that 1912(d) requires "active efforts"... to prevent the breakup of the Indian family and that "breakup" refers to "the discontinuance of a relationship."  Where a parent has no relationship, 1912(d) is inapplicable.  Here, the Court found that there was no relationship to breakup and as such 1912(d) is not applicable to the biological father.

Finally, with respect to 1915(a), the Court held that its rebuttable adoption preferences apply only when an alternative party has formally seeks to adopt the child.  Here, since no alternative party had done so it is inapplicable.

As a result, the Court reversed the decision of the South Carolina Supreme Court.

In a lengthy dissent written by Justice Sotomayor, she writes that the majority has misconstrued the statutes and illogically reads the statutes at issue. She writes that the majority opinion turns section 1912 upside down and contrary to Congress' express purpose in enacting ICWA:  that is, in preserving the familial bonds between Indian parents and their children and, more broadly, Indian tribes' relationships with future citizens who are "vital to their continued existence and integrity." She concludes that "the majority's hollow literalism distorts the statute and ignores Congress' purpose in order to rectify a perceived wrong that, while heartbreaking at the time, was a correct application of federal law and that in any case cannot be undone."

Justice Scalia, in a brief dissent, writes "The Court's opinion, it seems to me, needlessly demeans the rights of parenthood.  It has been the constant practice of the common law to respect the entitlement of those who bring a child into the world to raise that child.  We do not inquire whether leaving a child with his parents is "in the best interest of the child." It sometime is not; he would be better off raised by someone else.  But parents have their rights, no less than children do.  This father wants to raise his daughter, and the statute amply protects his right to do so.  There is no reason in law or policy to dilute that protection."

In the final analysis, if an Indian parent wants the protection afforded an Indian parent by sections 1912(d) and 1912(f), that parent must have a pre-existing custodial relationship with the child.