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SCOTUS: ICWA doesn’t apply to Indian father who abandons child prior to birth

Adoptive Couple v. Baby Birl, USSC No. 12-399, reversing and remanding 298 S.C. 625, 731 S.E.2d 550 (2012).

SCOTUSblog coverage here.

TPR lawyers, this one is for you.

The dissent says the casual reader of the majority opinion could be forgiven for thinking that Indian Child Welfare Act of 1978 points to only one sensible result.  See what you think.

Unwed mom became pregnant with the child of dad, a member of the Cherokee Nation.  They broke up, and dad agreed, via text message, to relinquish his parental rights.  Mom put Baby Girl up for adoption, and a non-Indian, South Carolina couple agreed to adopt her.  Dad had nothing to do with mom or Baby Girl throughout the pregnancy or the first 4 months of life.  At that point, he was served with adoption papers, which he signed indicating that he was not contesting the adoption.  The next day he changed his mind.

ICWA’s purpose is to prevent the break-up of Indian families by the unwarranted removal of Indian children by non-tribal agencies.  Slip op. p. 9.  Dad argued that ICWA barred involuntary termination of an Indian parent’s rights without proof that: (1) his “continued custody” of the Indian child would result in serious harm to her; and (2) remedial efforts had been made to prevent the break-up of the Indian family.  See 25 U.S.C. § 1912(f) and (d).  Dad also argued that if his rights were terminated, then ICWA required placement preferences to be given to relatives, tribe members, or other Indians.  See 25 U.S.C. § 1915(a).

Dad won in the South Carolina Family Court (and up through the South Carolina Supreme Court) which meant that at 27 months Baby Girl was taken from the only parents she had ever known and given to a father she had never met.  Eighteen months later, SCOTUS reversed.  Because dad never had legal or physical “custody”, the “continued custody” requirement didn’t apply.  Slip. op. at 11.  Because dad abandoned Baby Girl before birth, there was no Indian “family” to preserve.  Id. at 14.  Lastly, § 1915(a)’s placement preferences don’t apply when no alternative party has sought to adopt the baby. Id. at 15.

This was a 5-4 decision with several concurrences and 2 dissents.  Alito wrote the majority opinion.  What steamed Sotomayor and her co-dissenters is that once ICWA applies (and here, that’s undisputed) then so does its heightened protections.  There are no exceptions for unwed fathers or parents who’ve never had physical or legal custody of an Indian child or any other subsets of Indian parents.  Plus, ICWA is supposed provide uniformity in the termination of Indian parental rights, but this decision now relies on a patchwork of state laws where when the majority’s newly-created exceptions apply.  Dissent at 1-26.

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