Preserving Native-American Heritage over Other Best-Interest Considerations

The child's biological father in Adoptive Couple v. Baby Girl was a military member, stationed in Oklahoma at the time of the child's conception, birth and placement for adoption. Her mother, a non-Indian, is an Oklahoma resident, and the baby girl was born there. These parents were at one point engaged to be married, but their relationship soon foundered and the mother broke the engagement off via text message. The father later testified that he offered to support the mother during her pregnancy and support the child once born if the mother would consent to marry him. She would not do so.

In June 2009, before the child was born, the mother sent a text message to the father asking him whether he preferred to give up his parental rights or pay child support. He texted back that he chose to relinquish his rights. He did not give any financial support to the mother during her pregnancy, though he had the means to do so.

That same month, the mother, working through the Nightlight Christian Adoption Agency, chose a couple from South Carolina as her child's adoptive parents. The adoptive mother and father have been married since 2005. The adoptive mother has a Ph.D. in developmental psychology and the adoptive father is an auto-body technician working for Boeing. After the prospective adoption was agreed to, the adoptive parents supported the biological mother financially and emotionally, both before and after the child's birth.

The mother reported the fact of the father's Cherokee Nation citizenship to the attorney hired by the adoptive parents to represent her during the adoption, but not immediately. Still, she soon did so, and before the child was born. Thus informed, the attorney wrote a letter, dated Aug. 21, 2009, to the Child Welfare Division of the Cherokee Nation to inquire about the father's status as an enrolled Cherokee Indian. The letter stated that the father was “1/8 Cherokee, supposedly enrolled.” However, the father's name was misspelled, and the birth date provided inaccurate (because, the mother testified, she was not exactly sure of the father's correct birthdate). These mistakes led to the Cherokee Nation's responding by letter that it could not verify the father's enrollment as a member of the tribe, but further stating that “[a]ny incorrect or omitted family documentation could invalidate this determination.”

The baby was born with her adoptive parents present, and the mother formally consented to the adoption the following day. On the child's birth certificate, the father's heritage was listed as “Hispanic.” The adoptive parents took the child to South Carolina and began the adoption process there in September 2009. They did not contact the father until January 2010, when a process server presented him with papers requesting his formal relinquishment of parental rights. He testified that he did not understand what he was being served with until he signed the papers. The following day, the father began legal proceedings in Oklahoma to regain his full parental rights. In his complaint, he stated, “Neither parent nor the children have Native American blood. Therefore the Federal Indian Child Welfare Act … and the Oklahoma Indian Child Welfare Act … do not apply.” The father's military duties took him to Iraq a couple of days later, but he left his own father with power of attorney to act in his stead. Because the child now resided in South Carolina, the Oklahoma proceedings were dismissed for lack of jurisdiction.

In January 2010, the Cherokee Nation finally identified the father as a registered member of the tribe and determined that Baby Girl was an “Indian Child,” as defined under the ICWA. On April 7, 2010, the Cherokee Nation therefore filed a Notice of Intervention in the South Carolina action. On Nov. 25, 2011, after trial on the matter, a South Carolina family court judge issued a Final Order granting custody to the biological father after finding, inter alia, that he did not voluntarily give up his parental rights, that granting custody to him would not cause the child serious emotional harm, that the ICWA applied to the case, and that the ICWA was not unconstitutional. That ruling was upheld by the State Supreme Court.

A Child's Best Interests

The main point of contention in the Supreme Court will likely be the application of the ICWA to the question of what action is in the best interest of the child. According to South Carolina's Supreme Court, that state's well-documented history of determining custody disputes in accordance with the “best interests of the child” is not replaced by the ICWA. Instead, wrote the court:

Where an Indian child's best interests are at stake, our inquiry into that child's best interests must also account for his or her status as an Indian, and therefore, we must also inquire into whether the placement is in the best interests of the Indian child. See 25 U.S.C. ' 1902 (“The Congress hereby declares that it is the policy of this Nation to protect the best interests of Indian children and to promote the stability and security of Indian tribes and families by the establishment of minimum Federal standards for the removal of Indian children from their families and the placement of such children in foster or adoptive homes which will reflect the unique values of Indian culture, and by providing for assistance to Indian tribes in the operation of child and family service programs.”).

Thus, in order to make a custody determination in any given case, the courts of South Carolina must take into account the Indian child's relationship with his or her tribe, in deference to Congress' stated policy, which assumes that that relationship is important to the child's best interests. This consideration, along with the findings that the father had not abandoned his child for an extensive period of time (he petitioned for custody when she was four months old), and could provide her with a stable home with her own blood relatives, carried the day in favor of granting the father custody.

South Carolina's Supreme Court put a further nail in the coffin of the non-Indian adoptive parents' hopes when it went on to state:

Furthermore, even if we were to terminate Father's rights, section 1915(a) of the ICWA establishes a hierarchy of preferences for the adoptive placement of an Indian child. See 25 U.S.C. 1915(a). That section provides: “[i]n any adoptive placement of an Indian child under State law, 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.” (emphasis added). While not binding, the Bureau of Indian Affairs Guidelines concerning good cause state that courts may look to the “request of the biological parents or the child when the child is of sufficient age,” the “extraordinary physical or emotional needs of the child as established by testimony of a qualified expert witness,” and the “unavailability of suitable families for placement after a diligent search has been completed for families meeting the preference criteria” when deciding to deviate from the stated preferences. 44 Fed.reg. 67584-95 (1979). The party seeking to deviate from the preferences bears the burden of demonstrating that good cause exists.

Id.

According to the majority of South Carolina's Supreme Court, such “good cause” could not be shown through the bond the adoptive parents had formed with the child over the two-plus years from her birth to the time of decision because,
“[f]rom the outset, rather than seek to place Baby Girl within a statutorily preferred home, Mother sought placement in a non-Indian home. In our view, the ensuing bond that has formed in the wake of this wrongful placement cannot be relied on by Appellants and the dissent to deviate from the ICWA's placement preferences.” Therefore, although the majority admitted that the adoptive couple had proven themselves “ideal parents” over the child's entire lifetime, it must acknowledge the “conclusive custodial preference to the Indian parent” conferred by the ICWA and grant custody to that parent in the absence of evidence creating a “reasonable doubt that custody by [the Indian parent] would result in serious emotional or physical harm” to the child in question.

Dissenting on Questions of Fact and Law

The dissent, written by Judge John W. Kittredge and joined by Judge Kaye G. Hearn, noted that, in accordance with South Carolina's Constitution, article V, section 5, the standard of review in an appeal from the family court is de novo ' and the dissent took issue with the trial court's findings of fact.

Specifically, Judge Kittredge was bothered by several issues, including the fact that the Indian father also has a child from a previous unwed relationship, and he began making support payments on that child's behalf only after that mother brought support proceedings against him. When he learned he would be a father again, he refused to offer support unless the mother married him ' a stipulation that no court would give credence to, since it would hold the child's right to support in abeyance if its mother was not inclined to marry her child's father.

This father also knew of the child's expected due date, yet did nothing to inquire about the birth or the child's subsequent welfare. Via text message, he indicated his wish to avoid paying child support by relinquishing all his parental rights. Although he said he would have paid child support if asked, the dissent noted that he in fact did not pay such support until well into the lawsuit, when the child had reach 16 months of age. And when served with adoption papers asking him to give up his parental rights and waive the 30-day notice waiting period and notice of hearing, he signed. “The reality is,” the dissent concluded, that “[The] Father purposely abandoned this child and no amount of revisionist history can change that truth. As for the protracted procedural history, the Court blames the birth mother and the adoptive couple [for allegedly hiding the fact of the father's Cherokee heritage, albeit for only a short period] ' everyone except the Father, whose vanishing act triggered the adoption in the first instance.” Thus, the dissent would have found that the trial court erred in not holding, under South Carolina law, that the father had willfully abandoned his child.

As for the trial court and the majority's readings of the ICWA, it was Judge Kittredge's opinion that they had gotten it all wrong. In his view, what the ICWA did was not what the majority said it did ' create a rebuttable presumption that an Indian parent or guardian is better than any other, thus placing the onus on the opposing side to prove that he is not. Instead, the ICWA heightened the level of scrutiny to be applied to the question of whether the Indian parent or guardian's exercise of parental rights would result in serious emotional or physical damage to the child.

“The beyond-a-reasonable-doubt standard [imposed by the the ICWA] is different than the clear-and-convincing burden of proof required under state law,” Judge Kittredge explained. “Thus, in an Indian child custody proceeding to which ICWA applies, a dual burden of proof must be met before a parent's rights may be terminated: the court must find beyond a reasonable doubt that continued custody of the child by the parent is likely to result in serious emotional or physical damage to the child, and the court must also find that clear and convincing evidence supports termination under the applicable state statutory ground.”

Judge Kittredge would have found that: 1) beyond a reasonable doubt, the child would suffer serious emotional damage from being removed from the only home and family she had ever known; and 2) by clear and convincing evidence, under South Carolina state law, the father had lost his parental rights by failing to financially support the child and by going out of his way on several occasions to renounced all interest in and responsibility for her.

Judge Kittredge concluded that the child should have been returned to her adoptive parents, not only because her father had abandoned her and her adoptive parents had proven they were the better parents, but also because he read the preference in the section 1915(a) of the ICWA for placement of Indian children in Indian adoptive homes as just that: a preference, not a mandate. This section allows deviation from this preference when good cause can be shown, and the dissent found such good cause in the established parent/child relationship between the child and her adoptive parents.

Two Views

The South Carolina Supreme Court's majority and dissenting opinions both claimed to make their cases based on the best interests of the child, but they came to different conclusions because their best-interest tests differed. The dissent went the traditional route, first giving credence to the blood bond between father and child, finding that the father had lost his automatic parental rights by failing to financially and emotionally support the child, then concluding that the adoptive parents had shown the child would be best off if raised by them. The majority found the father's late entrance into the child's life troubling but not conclusive, then dismissed the trauma that is engendered by taking a toddler from the only home she had ever known by concluding this was inadequate proof of emotional harm to overcome Congress' presumption that placement in an Indian home is in the best interests of all Indian children, as codified in the ICWA's general requirement that Indian children be placed in Indian homes when such are an available resource.

As a practical matter, if the decision in Adoptive Couple v. Baby Girl is upheld, would-be non-Indian parents seeking to adopt will be dissuaded from trying to adopt Native-American children, shrinking the pool of potential placement resources for these children.

Does the ICWA really require courts to give custody of Indian children to Indian parents or guardians unless a good cause not to do so can be shown by the opposing parties, regardless of what is otherwise in the children's best interests? If so, then the law mandates unequal treatment of some children because of their racial heritage, raising equal protection concerns that the Supreme Court is likely to address when it delivers its decision in Adoptive Couple v. Baby Girl.'

Janice G. Inman is Editor-in-Chief of this newsletter.

'

The U.S. Supreme Court has agreed to hear the appeal of Adoptive Couple v. Baby Girl , 398 S.C. 625, (S.C. 2012), a case in which the Supreme Court of South Carolina confirmed a lower court's return of a Native-American child to her biological father, a member of the Cherokee Nation, over the objections of her would-be adoptive parents, who are not American Indians. The state high court based its decision on the dictates of the Federal Indian Child Welfare Act, 25 U.S.C.S. ' 1901 et. seq. (ICWA), a law enacted in 1978 to promote the rights of Native Americans and their tribes to maintain their heritage in the face of encroachment by the greater U.S. culture. Congress had deemed the legislation necessary because, prior to its enactment, Indian children were being removed from their homes at an alarming rate on the basis of neglect findings precipitated in large part by the tendency of “many social workers, ignorant of Indian cultural values and social norms … [to] discover neglect or abandonment where none exists.” H.R. Rep. No. 1386, at 22 (1978), reprinted in 1978 U.S.C.C.A.N. 7530, 7533.'

The questions raised by Adoptive Couple v. Baby Girl concern both the trial court's findings of fact and just how the ICWA should sway the balance of competing interests: the child's, the biological parents', the adoptive parents', and the tribe's. The case is being closely watched by family practitioners and others interested in child welfare law, as its outcome will affect the adoption prospects of Native-American children nationwide.

Federal Law's Reading Shifts Inquiry

The child's biological father in Adoptive Couple v. Baby Girl was a military member, stationed in Oklahoma at the time of the child's conception, birth and placement for adoption. Her mother, a non-Indian, is an Oklahoma resident, and the baby girl was born there. These parents were at one point engaged to be married, but their relationship soon foundered and the mother broke the engagement off via text message. The father later testified that he offered to support the mother during her pregnancy and support the child once born if the mother would consent to marry him. She would not do so.

In June 2009, before the child was born, the mother sent a text message to the father asking him whether he preferred to give up his parental rights or pay child support. He texted back that he chose to relinquish his rights. He did not give any financial support to the mother during her pregnancy, though he had the means to do so.

That same month, the mother, working through the Nightlight Christian Adoption Agency, chose a couple from South Carolina as her child's adoptive parents. The adoptive mother and father have been married since 2005. The adoptive mother has a Ph.D. in developmental psychology and the adoptive father is an auto-body technician working for Boeing. After the prospective adoption was agreed to, the adoptive parents supported the biological mother financially and emotionally, both before and after the child's birth.

The mother reported the fact of the father's Cherokee Nation citizenship to the attorney hired by the adoptive parents to represent her during the adoption, but not immediately. Still, she soon did so, and before the child was born. Thus informed, the attorney wrote a letter, dated Aug. 21, 2009, to the Child Welfare Division of the Cherokee Nation to inquire about the father's status as an enrolled Cherokee Indian. The letter stated that the father was “1/8 Cherokee, supposedly enrolled.” However, the father's name was misspelled, and the birth date provided inaccurate (because, the mother testified, she was not exactly sure of the father's correct birthdate). These mistakes led to the Cherokee Nation's responding by letter that it could not verify the father's enrollment as a member of the tribe, but further stating that “[a]ny incorrect or omitted family documentation could invalidate this determination.”

The baby was born with her adoptive parents present, and the mother formally consented to the adoption the following day. On the child's birth certificate, the father's heritage was listed as “Hispanic.” The adoptive parents took the child to South Carolina and began the adoption process there in September 2009. They did not contact the father until January 2010, when a process server presented him with papers requesting his formal relinquishment of parental rights. He testified that he did not understand what he was being served with until he signed the papers. The following day, the father began legal proceedings in Oklahoma to regain his full parental rights. In his complaint, he stated, “Neither parent nor the children have Native American blood. Therefore the Federal Indian Child Welfare Act … and the Oklahoma Indian Child Welfare Act … do not apply.” The father's military duties took him to Iraq a couple of days later, but he left his own father with power of attorney to act in his stead. Because the child now resided in South Carolina, the Oklahoma proceedings were dismissed for lack of jurisdiction.

In January 2010, the Cherokee Nation finally identified the father as a registered member of the tribe and determined that Baby Girl was an “Indian Child,” as defined under the ICWA. On April 7, 2010, the Cherokee Nation therefore filed a Notice of Intervention in the South Carolina action. On Nov. 25, 2011, after trial on the matter, a South Carolina family court judge issued a Final Order granting custody to the biological father after finding, inter alia, that he did not voluntarily give up his parental rights, that granting custody to him would not cause the child serious emotional harm, that the ICWA applied to the case, and that the ICWA was not unconstitutional. That ruling was upheld by the State Supreme Court.

A Child's Best Interests

The main point of contention in the Supreme Court will likely be the application of the ICWA to the question of what action is in the best interest of the child. According to South Carolina's Supreme Court, that state's well-documented history of determining custody disputes in accordance with the “best interests of the child” is not replaced by the ICWA. Instead, wrote the court:

Where an Indian child's best interests are at stake, our inquiry into that child's best interests must also account for his or her status as an Indian, and therefore, we must also inquire into whether the placement is in the best interests of the Indian child. See 25 U.S.C. ' 1902 (“The Congress hereby declares that it is the policy of this Nation to protect the best interests of Indian children and to promote the stability and security of Indian tribes and families by the establishment of minimum Federal standards for the removal of Indian children from their families and the placement of such children in foster or adoptive homes which will reflect the unique values of Indian culture, and by providing for assistance to Indian tribes in the operation of child and family service programs.”).

Thus, in order to make a custody determination in any given case, the courts of South Carolina must take into account the Indian child's relationship with his or her tribe, in deference to Congress' stated policy, which assumes that that relationship is important to the child's best interests. This consideration, along with the findings that the father had not abandoned his child for an extensive period of time (he petitioned for custody when she was four months old), and could provide her with a stable home with her own blood relatives, carried the day in favor of granting the father custody.

South Carolina's Supreme Court put a further nail in the coffin of the non-Indian adoptive parents' hopes when it went on to state:

Furthermore, even if we were to terminate Father's rights, section 1915(a) of the ICWA establishes a hierarchy of preferences for the adoptive placement of an Indian child. See 25 U.S.C. 1915(a). That section provides: “[i]n any adoptive placement of an Indian child under State law, 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.” (emphasis added). While not binding, the Bureau of Indian Affairs Guidelines concerning good cause state that courts may look to the “request of the biological parents or the child when the child is of sufficient age,” the “extraordinary physical or emotional needs of the child as established by testimony of a qualified expert witness,” and the “unavailability of suitable families for placement after a diligent search has been completed for families meeting the preference criteria” when deciding to deviate from the stated preferences. 44 Fed.reg. 67584-95 (1979). The party seeking to deviate from the preferences bears the burden of demonstrating that good cause exists.

Id.

According to the majority of South Carolina's Supreme Court, such “good cause” could not be shown through the bond the adoptive parents had formed with the child over the two-plus years from her birth to the time of decision because,
“[f]rom the outset, rather than seek to place Baby Girl within a statutorily preferred home, Mother sought placement in a non-Indian home. In our view, the ensuing bond that has formed in the wake of this wrongful placement cannot be relied on by Appellants and the dissent to deviate from the ICWA's placement preferences.” Therefore, although the majority admitted that the adoptive couple had proven themselves “ideal parents” over the child's entire lifetime, it must acknowledge the “conclusive custodial preference to the Indian parent” conferred by the ICWA and grant custody to that parent in the absence of evidence creating a “reasonable doubt that custody by [the Indian parent] would result in serious emotional or physical harm” to the child in question.

Dissenting on Questions of Fact and Law

The dissent, written by Judge John W. Kittredge and joined by Judge Kaye G. Hearn, noted that, in accordance with South Carolina's Constitution, article V, section 5, the standard of review in an appeal from the family court is de novo ' and the dissent took issue with the trial court's findings of fact.

Specifically, Judge Kittredge was bothered by several issues, including the fact that the Indian father also has a child from a previous unwed relationship, and he began making support payments on that child's behalf only after that mother brought support proceedings against him. When he learned he would be a father again, he refused to offer support unless the mother married him ' a stipulation that no court would give credence to, since it would hold the child's right to support in abeyance if its mother was not inclined to marry her child's father.

This father also knew of the child's expected due date, yet did nothing to inquire about the birth or the child's subsequent welfare. Via text message, he indicated his wish to avoid paying child support by relinquishing all his parental rights. Although he said he would have paid child support if asked, the dissent noted that he in fact did not pay such support until well into the lawsuit, when the child had reach 16 months of age. And when served with adoption papers asking him to give up his parental rights and waive the 30-day notice waiting period and notice of hearing, he signed. “The reality is,” the dissent concluded, that “[The] Father purposely abandoned this child and no amount of revisionist history can change that truth. As for the protracted procedural history, the Court blames the birth mother and the adoptive couple [for allegedly hiding the fact of the father's Cherokee heritage, albeit for only a short period] ' everyone except the Father, whose vanishing act triggered the adoption in the first instance.” Thus, the dissent would have found that the trial court erred in not holding, under South Carolina law, that the father had willfully abandoned his child.

As for the trial court and the majority's readings of the ICWA, it was Judge Kittredge's opinion that they had gotten it all wrong. In his view, what the ICWA did was not what the majority said it did ' create a rebuttable presumption that an Indian parent or guardian is better than any other, thus placing the onus on the opposing side to prove that he is not. Instead, the ICWA heightened the level of scrutiny to be applied to the question of whether the Indian parent or guardian's exercise of parental rights would result in serious emotional or physical damage to the child.

“The beyond-a-reasonable-doubt standard [imposed by the the ICWA] is different than the clear-and-convincing burden of proof required under state law,” Judge Kittredge explained. “Thus, in an Indian child custody proceeding to which ICWA applies, a dual burden of proof must be met before a parent's rights may be terminated: the court must find beyond a reasonable doubt that continued custody of the child by the parent is likely to result in serious emotional or physical damage to the child, and the court must also find that clear and convincing evidence supports termination under the applicable state statutory ground.”

Judge Kittredge would have found that: 1) beyond a reasonable doubt, the child would suffer serious emotional damage from being removed from the only home and family she had ever known; and 2) by clear and convincing evidence, under South Carolina state law, the father had lost his parental rights by failing to financially support the child and by going out of his way on several occasions to renounced all interest in and responsibility for her.

Judge Kittredge concluded that the child should have been returned to her adoptive parents, not only because her father had abandoned her and her adoptive parents had proven they were the better parents, but also because he read the preference in the section 1915(a) of the ICWA for placement of Indian children in Indian adoptive homes as just that: a preference, not a mandate. This section allows deviation from this preference when good cause can be shown, and the dissent found such good cause in the established parent/child relationship between the child and her adoptive parents.

Two Views

The South Carolina Supreme Court's majority and dissenting opinions both claimed to make their cases based on the best interests of the child, but they came to different conclusions because their best-interest tests differed. The dissent went the traditional route, first giving credence to the blood bond between father and child, finding that the father had lost his automatic parental rights by failing to financially and emotionally support the child, then concluding that the adoptive parents had shown the child would be best off if raised by them. The majority found the father's late entrance into the child's life troubling but not conclusive, then dismissed the trauma that is engendered by taking a toddler from the only home she had ever known by concluding this was inadequate proof of emotional harm to overcome Congress' presumption that placement in an Indian home is in the best interests of all Indian children, as codified in the ICWA's general requirement that Indian children be placed in Indian homes when such are an available resource.

As a practical matter, if the decision in Adoptive Couple v. Baby Girl is upheld, would-be non-Indian parents seeking to adopt will be dissuaded from trying to adopt Native-American children, shrinking the pool of potential placement resources for these children.

Does the ICWA really require courts to give custody of Indian children to Indian parents or guardians unless a good cause not to do so can be shown by the opposing parties, regardless of what is otherwise in the children's best interests? If so, then the law mandates unequal treatment of some children because of their racial heritage, raising equal protection concerns that the Supreme Court is likely to address when it delivers its decision in Adoptive Couple v. Baby Girl.'

Janice G. Inman is Editor-in-Chief of this newsletter.

'