The U.S. Supreme Court heard an important adoption case on April 16. The case, captioned Adoptive Couple v. Baby Girl, involves complex issues of sovereignty and statutory construction, to say nothing of the high stakes element of a little girl’s permanent placement.
In 2009, a South Carolina couple took custody of a newborn girl after her mother agreed to let them adopt her. The girl’s biological father objected to the adoption on the grounds that the mother had not consulted with him before making the arrangements.
Under typical circumstances in South Carolina (and in many other states), the father’s consent would not have been necessary because he was not married to the mother and was considered an absentee. A 1978 federal law entitled the Indian Child Welfare Act, however, provided a strong enough legal ground for the state to award custody to the biological father in December, 2011.
The Indian Child Welfare Act (ICWA) was passed to address what was described as an “alarmingly high” rate of removal of children from Native American families. The law requires inclusion of the family’s tribe in proceedings to determine child custody, including adoptions. Under ICWA, the “biological parent or parents of an Indian child” cannot have their parental rights involuntarily terminated without notice, hearing, and proper showing that continued custody of the child by the parent or custodian “is likely to result in serious emotional or physical damage to the child.” Such notice must also be given to the child’s tribe so that the tribal courts can engage in determining the child’s placement.
If such a showing is made and the court terminates a parent’s rights, ICWA requires the court to give preference to the child’s extended family, other members of the child’s tribe, or to “other Indian families” when placing the child.
In the case at bar, the Supreme Court must decide if (and how) ICWA applies to the girl’s biological father, with whom she will have spent about 18 months by the time a decision is reached. No matter the result, one of two families will be devastated. Broader concerns with the case involve the potential limitation of ICWA, prompting several states, tribal councils, and others to file numerous amicus briefs.
The State of Arizona and the Inter Tribal Council of Arizona have each filed briefs in support of ICWA. Arizona is home to the nation’s third-largest population of Native Americans at around 155,000 people; if ICWA is overturned, the impact on Arizona would be disproportionately large. Legal commentators speculate that the Supreme Court’s high rate of reversal indicates the Justices’ intent to do away with outcomes like these under ICWA, but the form that such reversal might take is in doubt.
Adoptions are complicated endeavors which sometimes lead to tragic outcomes. ICWA is designed to respect tribal sovereignty and to protect the cultural heritage of Native American children whose unique situation makes them more vulnerable. At times, however, statutes have unintended consequences that can lead to termination of the rights of both biological and adoptive parents. Adopting a child in Arizona is a complicated process (and not only because of tribal law issues), so both Arizona adoption lawyers and prospective adoptive parents must exercise due care and caution.