Associated Press
The Supreme Court on Tuesday ruled that the biological father of a 4-year-old girl could not stop her planned adoption by claiming protection under the Indian Child Welfare Act. The case will now remand to the lower court to determine if she belongs with the white couple that had planned to adopt her.
This ruling threatens to undermine the values and practices that have become central to efffective child welfare practice, in particular the important role that families and communities play in determining the best interests of children in their care. —MaryLee Allen

WASHINGTON — The Supreme Court on Tuesday ruled against the biological father of a 4-year-old girl who was placed for adoption. The case, Adoptive Couple v. Baby Girl, centered on whether a Native American who was the biological father of a child could stop the adoption under provisions of the Indian Child Welfare Act.

By a 5-4 vote, the court voided the decision that removed the little girl from a white couple that wanted to adopt her and that had her from the time she was born until she was 27 months old. At that time, the South Carolina Supreme Court gave custody to her biological father, a Cherokee Indian. She has been with him for the past 18 months.

The court held that the Indian Child Welfare Act does not bar termination of the father's parental rights. The ruling does not, however, send her straight back to those would-be adoptive parents. It sends the case back to South Carolina for further proceedings.

The back story

The mother was white and the father, Dusten Brown, is a member of the Cherokee tribe. The parties involved have long since been identified by name publicly, though that's usually not the case when child custody is involved. Brown and the mother were engaged when the baby was conceived, but they broke up. Brown said he wanted to marry or he didn't want to support the baby. The mother decided to put the baby up for adoption and selected a South Carolina couple, Melanie and Matt Capobianco. They cared for her for the first 27 months of her life.

Meanwhile, when he was notified of the adoption plans when the baby was 4 months old, the biological father sued to prevent it, citing the Indian Child Welfare Act.

He was estranged from the biological mother at the time of the baby's birth and had not provided support during the pregnancy. Had he not been Native American, there would be no question his consent was not needed for adoption. But the South Carolina Supreme Court ruled that under the protections afforded by the Indian Child Welfare Act, he had a right to stop the adoption. The court gave the biological father custody of the child and there she has remained in the year and a half since.

Veronica, the baby, is 1.2 percent or 3/256 Cherokee. She falls under a "strict reading" of the act because her biological father is a member of the tribe.

The ruling

The Supreme Court didn't decide whether the biological father had paternal rights. It assumed them. He had acknowledged paternity and then he proved it with a DNA test. Because the court assumed he had paternal rights, analysts say the decision may not have much impact on putative father rights in general. It remains to be seen.

Instead, the Supreme Court focused on provisions of the Indian Child Welfare Act dealing with termination of parental rights. The act was designed to "prevent the involuntary dissolution of an existing Indian family." The court held there was no existing family, since the biological father had not taken steps to create one by providing any type of support to the mother. That meant another requirement of the act, which requires a party that wants a father's parental rights terminated to demonstrate that “active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family,” was moot. A nonexistent Indian family can't be broken up.

The biological father's side also cited a provision in the act that required showing "continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child" as a measure for terminating parental rights. Since he'd never had custody of the child before the case started winding its way through the courts, the Supreme Court held that wasn't relevant.

Writing for the majority, Justice Samuel Alito said, "We clarify that (the provision) which provides placement preference for the adoption of Indian children, does not bar a non-Indian family like Adoptive Couple from adopting an Indian child when no other eligible candidates have sought to adopt the child. We accordingly reverse the South Carolina Supreme Court's judgment and remand for further proceedings."

According to South Carolina law, Brown had abandoned the child by not supporting her financially or in other ways over the course of the pregnancy and for four months after her birth. His consent to the adoption was not, therefore, needed.

"Under the State Supreme Court's reading, a biological Indian father could abandon his child in utero and refuse any support for the birth mother … and then could play his ICWA trump card at the eleventh hour to override the mother's decision and the child's best interests," Alito wrote. "If this were possible, many prospective adoptive parents would surely pause before adopting any child who might possibly qualify as an Indian under the ICWA."

The reaction

A coalition of national child welfare organizations issued statements expressing disappointment immediately after the decision was announced. The Casey Family Programs, Child Welfare League of America and Children's Defense Fund all decried the ruling, but said they were relieved that the court did not strike down the Indian Child Welfare Act itself. They said the act provides important safeguards for Native Americans and called the court decision a "step backward."

The three groups and 15 other national child welfare organizations had filed an amicus brief with the Supreme Court in support of the act.

"Preserving the relationships between children and loving and fit birth parents is paramount in creating the kind of safe, stable and supportive envronment where Indian children — like all children — have the best chance to thrive," David Sanders, Casey executive vice president, told reporters.

"This ruling threatens to undermine the values and practices that have become central to efffective child welfare practice, in particular the important role that families and communities play in determining the best interests of children in their care," the director of child welfare and mental health for the Children's Defense Fund, MaryLee Allen, said.

The director of the Child Welfare League of America, Linda Spears, said the ruling would lead her organization to "redouble our efforts so that best practices as outlined in ICWA and our standards of excellence for services to children and families are fully implemented."

The American Academy of Adoption Attorneys issued its own statement to reporters, lauding the decision. The ruling, it said, "clarified conflicting federal and state court decisions regarding which children and families are subject to the provisions of the ICWA."

"The court's decision in this case will end some of the confusion created by inconsistent state court rulings and laws," said Mary Beck, a professor at the University of Missouri School of Law, on behalf of the group.

The academy had submitted its own amicus brief supporting reversal of the South Carolina ruling. In it, the academy asked the court to "resolve and clarify" conflicting federal and state court decisions on the issue of to what extent the act applies and to whom it applies.

Long-term impact

"I think it's interesting how the court approached the issue," Larry S. Jenkins, an attorney with Kirton McConkie, who specializes in adoption law, told the Deseret News. "They took the narrowest approach they could to resolving that case." It was not a dispute, he noted, about taking a child away from an Indian parent. The parent had never had custody.

"The court makes the sensible argument that, when looking at breaking up an Indian family, there has to be an Indian family to break up," Jenkins said. "We've argued that before in cases. The lower courts really struggle with the Indian Child Welfare Act. When they interpret it, they tend to err in favor of the tribes and Indian rights. I don't know that I've ever seen a lower court interpret it like this has."

Fathers in various courts have argued to preserve parental rights they've lost because they didn't know about a child. In this case, the biological father knew during the pregnancy that the woman had conceived.

The Supreme Court responded, in effect, "Father, you abandoned this child," Jenkins said. "In another case like this, under the act, if one was never a parent with custody, it says to look to state law."

In writing about the case before the decision, Amy Howe noted on SCOTUSBlog that "this case is unlikely to conclude with a happy ending: Either Baby Girl’s Father, with whom she will have lived for nearly 18 months by the time the Court issues its decision, or Adoptive Couple, with whom she spent the first 27 months of her life, will almost certainly be devastated by the Court’s ruling. It is also unlikely that this case is what Congress had in mind when it enacted ICWA. After all, it does not appear to involve the kind of deliberate effort by an agency to remove an Indian child from her Indian family that prompted Congress to pass ICWA in the first place; instead, it seems more likely that Baby Girl’s non-Indian mother made the choice to place her child for adoption with Adoptive Couple because she felt that it would be best for Baby Girl."

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