At the end of its term last month, the U.S. Supreme Court issued a number of very important decisions including those invalidating the federal Defense of Marriage Act and interpreting the Voting Rights Act. During the same week, the court issued another opinion that did not receive as much attention, but is critically important to family law practitioners. In Adoptive Couple v. Baby Girl, the Supreme Court, for only the second time since its passage more than 30 years ago, interpreted the provisions of the Indian Child Welfare Act of 1978. In this column we will provide a short history of the legislation and the Supreme Court's interpretation of its provisions.
As a result of a concern that Indian tribes were being harmed by abusive child welfare practices that resulted in many Indian children being placed in non-Indian homes, Congress began hearings in the 1970s to determine the scope of the problem. It discovered that a significant number of Indian families were being affected by the removal of their children. As a result, Congress enacted the Indian Child Welfare Act. The act provides standards that govern the removal of Indian children (defined as those eligible for tribal membership under an individual tribe's eligibility criteria) from their families, whether through foster care placement, the termination of parental rights of Indian parents or adoptive placements of Indian children. These standards supersede those set by individual states and therefore apply in state court child custody proceedings involving Indian children. The act also gives jurisdiction to tribal courts, as opposed to state courts, over Indian children who reside or are domiciled on a reservation.
The Supreme Court first affirmed the constitutionality of this statute in Mississippi Choctaw Indians v. Holyfield, 490 U.S. 30 (1989), where the court upheld the exclusive tribal court jurisdiction provisions. In that case the birth parents, both members of an Indian tribe, had sought to evade the jurisdiction of the tribe by leaving the reservation for the birth of their twins and then consenting to the children's adoption. The court determined that, in spite of the actual place of their birth, the twins were domiciled on a reservation because the reservation was the domicile of their Indian parents and thus the tribal court had jurisdiction.
Baby Girl also involved an adoption proceeding. The birth mother, who was a non-Indian, notified the birth father, who was her fiancé and a person of Cherokee Indian heritage, of the pregnancy in early 2009. The father refused to provide any support for her until after they were married. The birth mother subsequently broke off the engagement in May 2009. In June 2009 she sent the father a text message to which he responded by saying he would relinquish his rights.
At that point the birth mother decided to relinquish the child for adoption and agreed to place her with a non-Indian couple who had supported her through the pregnancy. One day after the child's birth in Oklahoma on September 15, 2009, she relinquished her parental rights and consented to the adoption. The adoptive couple initiated adoption proceedings in a South Carolina court and served the birth father with notice of the pending adoption petition approximately four months after the child's birth. Although the father accepted service, he later claimed that he believed he was relinquishing his parental rights to the birth mother and not to the adoptive couple.
The trial took place in September 2011. There was no question that had the father not been a member of an Indian tribe, his consent to the adoption would not have been necessary. However, the South Carolina Family Court held that under the Indian Child Welfare Act the adoptive parents were required to prove that the child would suffer serious emotional or physical damage if the father were to be given custody, and therefore it denied the adoption petition.
The South Carolina Supreme Court affirmed the Family Court's determination, finding that because it was a case involving an Indian child, the act was applicable. It also determined that under the statute the biological father met the definition of an Indian "parent."
The court further held that his rights could not be terminated under two different provisions of the statute. It found, first, that active efforts had not been made to provide remedial services and rehabilitative programs designed to prevent the breakup of an Indian family, and second, that the adoptive parents had failed to carry their burden of proving harm, affirming the Family Court finding. In addition, the court determined that even if it decided to terminate the father's rights, the preference, under another provision of the act, for placement with a member of the child's extended family, other members of the Indian child's tribe or other Indian families was applicable. The child was sent to live with her father, whom she had never met, in December 2011 at the age of 2 1/2. The U.S. Supreme Court granted certiorari.
The Supreme Court majority (Justice Samuel Alito Jr., joined by Chief Justice John Roberts Jr. and justices Anthony Kennedy, Clarence Thomas and Stephen Breyer) reversed the South Carolina court. First, it assumed for purposes of the decision, without specifically finding so, that the biological father was a "parent" as defined under the statute. It then turned its attention to the termination of parental rights provision that the South Carolina court found applicable. That section 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." The majority then concluded that the statute was inapplicable because the biological father could not have established continued custody because he never had custody of the child at all. In doing so, the court essentially agreed with the adoptive parents that this provision is limited to those circumstances in which the state is seeking to remove Indian children from an existing Indian family. The majority supported this interpretation by looking at the congressional intent behind the statute, which was to preserve existing Indian families. Alito summarized this position by stating: "In sum…[where] the adoption of an Indian child is voluntarily and lawfully initiated by a non-Indian parent with sole custodial rights, the [act's] primary goal of preventing the unwarranted removal of Indian children and the dissolution of Indian families is not implicated."
Likewise, the court found that the provision related to the requirement that, before an involuntary termination of an Indian parent's rights could be effectuated, remedial services must be provided was also inapplicable. The majority noted that this section would apply to those circumstances in which the state through its social-service agencies attempts to remove Indian children from their families. Again the court found that because the statute is meant to apply to the "breakup" of an Indian family, the fact that there was no existing Indian family made this section inapplicable as well.
With respect to the provision regarding the placement preference for other Indian families, the court held that section inapplicable in cases in which no alternative party has formally sought to adopt the child, stating, "This is because there simply is no 'preference' to apply if no alternative party that is eligible to be preferred under [the act] has come forward because there were no other parties seeking to adopt the child." The court remanded the case to the South Carolina court.
The dissent, written by Justice Sonia Sotomayor, with whom justices Ruth Bader Ginsburg and Elena Kagan joined, with Justice Antonin Scalia joining in part, criticized the majority for the very narrow interpretation of the statute. They furthermore asserted that the majority opinion leaves open the possibility that the father's extended family members or other members of the tribe can now come forward to seek to adopt the child.
The import of both Supreme Court decisions is to highlight for family law attorneys the importance of adhering to the provisions of the act whenever a proceeding involves a child eligible for tribal membership. The child in this case is only 3/256 Cherokee, yet that fact has significantly affected her life and those of her father and adoptive parents. On July 17, the South Carolina Supreme Court ordered the lower court to approve the adoption of the child. Even now, controversy remains as two justices of the court dissented, arguing that the matter should be resolved after a hearing by the Family Court to determine the best interests of a child who has already known two sets of parents in her short life.
Mary Kay Kisthardt is a professor at the University of Missouri-Kansas City School of Law. She can be reached at KisthardtM@umkc.edu. Barbara Handschu is special counsel to Dobrish Michaels Gross in New York. She can be reached at Handschu@dobrishlaw.com.