Yesterday, the Supreme Court of the United States determined that certain provisions of the Indian Child Welfare Act do not apply when Native American birth parents have never had custody of the child. Following the Supreme Court’s decision, the state court must review the case again. Thus, the child’s legal status is still not resolved.
The facts of the Supreme Court case are well known and not uncommon, save for the fact that the child’s birth father is a member of the Cherokee Nation. The relationship of the child’s birth parents dissolved before her birth. The birth father told the birth mother via a text message that he relinquished his rights to the child. He had no contact with the birth mother, and demonstrated no interest in the child at all until four months after her birth. Then, one day after formally agreeing to relinquish his rights, the birth father chose to challenge the adoption and invoked the preferences of the ICWA for placement with Native American caretakers.
Following a trial, custody of the child, then two years old, was awarded to the birth father. The Supreme Court held that the state court erred in requiring the proposed adoptive parents to demonstrate a likelihood of harm if the child were to be placed in the custody of her birth father. Thus, on remand, the state court must determine whether adoption by the non-Indian couple is in the best interest of the child.
The ICWA provisions prohibit non-Indian foster placement and termination of parental rights absent a determination that continued custody by a Native American custodian will result in “serious emotional or physical damage to the child.” In addition, preference for adoptive placement must be given to Native Americans. The Court determined that none of these provisions applied because the birth father had been absent from the child’s life, and no person within the Native American community had come forward to take custody of the child. In essence, the decision requires a show of interest in the child by the Native American community prior to the adoption proceeding to invoke the protections of the ICWA.
The case brings to mind the high profile custody cases of the 1990s in which legal wrangling uprooted toddlers to live with strangers on the basis of procedural irregularities. Similarly here, the child, now four years old, may be removed from the place that has been her home for two years. Or not. It seems that the private adoption world would do well to consider permanency as part of its best interest analysis. Although the public adoption realm struggles mightily to implement the concept of permanency, at least the importance of it is officially acknowledged. We wholeheartedly agree with the statement issued earlier today by CCAI executive Director Kathleen Strottman.
heARTbeat is a publication of the KingSpry Adoption/ART Law Practice Group. It is meant to be informational and does not constitute legal advice.
