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Argument preview: Court to take on law and emotion in Indian adoption case

In December 2011, in compliance with a court order, a South Carolina couple turned their adoptive daughter, who had lived with them since her birth twenty-seven months before, over to her biological father.  Although the toddler’s biological mother had agreed to the adoption, and the biological father’s consent would not have normally been required under state law because he had been an absentee father, the state courts had awarded him custody.  Because the biological father is a registered member of the Cherokee Nation, and he timely objected to the adoption, the courts ruled that the adoption was barred by a federal statute, the Indian Child Welfare Act (ICWA).  The U.S. Supreme Court agreed to decide how the statute applies in such a case.  Shortly after 10 a.m. on Tuesday, the Justices will hear oral arguments in this heart-wrenching dispute, now captioned Adoptive Couple v. Baby Girl.  And although the case in theory involves relatively dry questions regarding the meaning and scope of ICWA, the human dimension is rarely far from the surface.


In 1978, Congress enacted ICWA in response to its finding that non-Indian public and private agencies alike had – often for no good reason – broken up “an alarmingly high percentage of Indian families” by removing Indian children.  Congress indicated that the Act was intended to protect not only Indian children, but also “the rights of the Indian community and tribe in retaining its child in its society.”

ICWA applies to an “Indian child,” who must be either “a member of an Indian tribe” or “eligible for membership in an Indian tribe and the biological child of a member of an Indian tribe.”  The statute governs a “child custody proceeding,” which includes (among others) adoptions and proceedings to terminate a parent’s rights.  ICWA defines “parent” to include “any biological parent or parents of an Indian child”; however, the definition excludes “the unwed father where paternity has not been acknowledged or established.”

ICWA grants parents and Tribes a variety of procedural protections.  When a court is considering the involuntary termination of parental rights, both the parent and the Tribe involved are entitled to notice of the proceedings.  Pursuant to Section 1912(d) of the Act, the party seeking the involuntary termination must also show that “active efforts had been made to provide remedial services and rehabilitation programs designed to prevent the breakup of the Indian family and that these efforts have proved unsuccessful.”  Moreover, Section 1912(f) provides that parental rights may not be terminated without 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.”

In cases involving the adoption of an Indian child, Section 1915(a) of the Act requires that “[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.”

As so often happens in child custody battles, many of the facts of this case – for example, who may have been responsible for misspelling the biological father’s name at various points in time, leading the Cherokee Nation to inaccurately state that Baby Girl, the child at the center of this case, was not an Indian child – remain hotly disputed.  However, it is undisputed that, in September 2009, a South Carolina couple (known in the Supreme Court proceedings only as “Adoptive Couple,” although their real names have been made public elsewhere) traveled to Oklahoma for Baby Girl’s birth.  Baby Girl’s biological mother (“Mother”) – who is not Indian – had previously chosen them to adopt her daughter and had signed papers in which she renounced her parental rights and agreed to allow Adoptive Couple to adopt her daughter.

Baby Girl’s biological father (“Father”) – who was then serving in the U.S. Army – was estranged from Mother.  When the child was conceived, the couple had been engaged.  But Father had declined to provide support unless the wedding date was moved up and the two were married.  Mother eventually called off the engagement, and a few months before Baby Girl’s birth, she had sent Father a text message in which she asked him whether he “would rather pay child support or surrender his parental rights.”  Father responded, also via text message, “that he would relinquish his rights.”

Adoptive Couple returned with Baby Girl to South Carolina, where they began adoption proceedings.  A few months later, when Father learned that Baby Girl had been given up for adoption, he quickly retained a lawyer and sought to put the adoption proceedings on hold.  Four months after that, in May 2010, DNA testing confirmed that he was indeed Baby Girl’s biological father.

The South Carolina family court issued its decision in November 2011.  Two parts of its ruling are not at issue in this case:  everyone agrees that Baby Girl is an “Indian child” for purposes of ICWA, and that the state court proceedings are “child custody proceedings” under the Act.

The South Carolina court further held that Father is a “parent” for purposes of the statute, because he had “both acknowledged paternity and paternity has been conclusively established . . . through DNA testing.”  Because Father had not agreed to the adoption and there were no state law reasons to terminate his parental rights, the court awarded him custody.

The South Carolina Supreme Court affirmed, by a divided vote. The court held that the case was governed by ICWA and that the statute’s grounds for terminating Father’s rights were not satisfied.

Adoptive Couple filed a petition for certiorari, which the Court granted in January of this year.


The case has attracted an all-star line-up of Supreme Court advocates. Adoptive Couple are represented by Lisa Blatt of Arnold & Porter; former Solicitor General Paul Clement filed a brief supporting reversal of the lower court’s decision on behalf of the guardian ad litem appointed by the state courts to represent Baby Girl’s interests.  On the other side, Father is represented by Charles Rothfeld of Mayer Brown and Yale’s Supreme Court clinic; he has the support of the current Solicitor General, Don Verrilli, who filed an amicus brief on behalf of the federal government agreeing that Father should have custody of Baby Girl.

The threshold issue before the Supreme Court is whether Father is a “parent” for purposes of ICWA; if he is not, none of ICWA’s protections are available to him.  To Father and the federal government, this is a simple question.  No one disputes that he is in fact Baby Girl’s biological father.  And ICWA’s exception for unwed fathers who have not “acknowledged or established” paternity does not apply because he has done both by agreeing that he is Baby Girl’s father, taking a paternity test to prove it, and filing this lawsuit.

For Adoptive Couple, however, the fact that Father agrees and has shown that he is Baby Girl’s father is insufficient.  Instead, the important question is whether he has rights as a parent under South Carolina law – which he does not, because state law does not require an unwed father’s consent for adoption if the father has failed to support the child and her mother.   That result, they argue, is more consistent with both the Act’s purpose of protecting existing parental rights (as opposed to “resuscitat[ing] parental rights expressly repudiated by an unwed father”) and the states’ traditional power over domestic relations.  And a contrary result would have the further undesirable effect of allowing unwed fathers to “shirk their parental responsibilities while retaining a back-pocket veto over the mother’s choice for an adoptive placement of her parent,” thereby “punish[ing] Indian children desperately in need of adoptive homes.”

If the Court agrees with Father and the United States that he is indeed a “parent” for purposes of ICWA, it must then move on to the next question:  whether, under ICWA, his parental rights can be terminated without his consent.  On this point, the Adoptive Couple return once again to the idea that although the Act was intended to “prevent the involuntary dissolution of an existing Indian family,” in this case – in which Baby Girl was placed for adoption by her non-Indian Mother after her absentee Father renounced his parental rights – “there is no ‘Indian family’ that includes the father to break up.”  Thus, they contend, Section 1912(d) of the Act – which requires the party seeking to have Father’s parental rights terminated to show that “active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family” – just doesn’t apply here.  Indeed, in their view any other interpretation would require would-be adoptive parents to “find and convince the father who abandoned that child to grasp the reins of parenthood,” which “would be both perverse and cruel.”

For Father and the federal government, there is no need for the Court to look at the alleged purpose of the Act at all, because the plain language of Section 1912(d) makes clear that it applies to all proceedings seeking the termination of parental rights.  No efforts were made to comply with this requirement; therefore, Father’s parental rights cannot be terminated.  And contrary to the Adoptive Couple’s contention, terminating Father’s parental rights would indeed break up an Indian family because it would sever his link to Baby Girl.  Moreover, to the extent that the purpose of ICWA is relevant, the Adoptive Couple’s insistence that a court should focus on whether the termination would break up an existing nuclear family is too narrow, as Congress in ICWA specifically contemplated that “Indian family” would extend well beyond the nuclear family to a much broader extended family.

In a similar vein, the Adoptive Couple contend (and the federal government, parting ways with Father on this point, agrees) that Father cannot rely on Section 1912(f), which allows a termination of parental rights only when there is a determination, “supported by evidence beyond a reasonable doubt, . . . that the continued custody of the child by the parent . . . is likely to result in serious emotional or physical damage to the child.”  Here, the Couple argue, because Father never had custody of his daughter, there would be no way for a court to determine what effect continued custody might have.  Father counters that nothing in the provision “states affirmatively that it is inapplicable to non-custodial parents”; rather, the difficulty of determining possible harm to the child when the parent at issue currently lacks custody suggests that the parent’s rights cannot be terminated.  But in any event, he adds, this case demonstrates that such a determination can be made from the record.

Even if the Court were to agree with Adoptive Couple that Father cannot avail himself of the protections available in cases seeking to terminate parental rights, they must overcome a final obstacle:   the South Carolina court’s alternative holding that Adoptive Couple could not adopt Baby Girl because Section 1915(a) of ICWA expresses a preference for Indian children to be adopted by their extended family or, barring that, other Indians.  The Adoptive Couple maintain that, as with other ICWA provisions at issue in this case, the Section 1915(a) preferences do not apply to cases that do not involve the break-up of an existing Indian family.  And at the very least, the preference does not apply when (as here) no one from any of the preferred categories came forward in the state court proceedings seeking to adopt the Indian child.  Once again, Father rejects these interpretations as inconsistent with the plain language of the provision; he adds that the argument is “nonsensical” in this case, in which he is seeking custody “and there would have been no reason for other members of Baby Girl’s extended family or of her Tribe to step forward unless Father were found unsuitable.”

The Adoptive Couple and Baby Girl’s guardian ad litem urge the Court to reverse the decision below for a further reason:  to avoid the constitutional concerns that they see implicated by the lower courts’ (and Father’s) interpretation of ICWA.  The guardian ad litem, for example, asserts that applying ICWA to Baby Girl’s adoption proceedings because she possesses a “sliver” of Indian heritage deprived Baby Girl, based solely on her race, of the “best interests of the child” inquiry that would otherwise be used in the South Carolina adoption proceedings; similarly, it violated her right to equal protection of the laws.  Adoptive Couple and the guardian also contend that the South Carolina court’s interpretation of ICWA raises federalism concerns and gives a preference to non-Indian fathers.

Such constitutional concerns are, the United States and Father argue, misplaced.  No federalism issues arise because the Constitution explicitly gives Congress power over Indian affairs; consistent with its traditional role of protecting Indians, Congress enacted ICWA to protect Indian children.  Moreover, any clash between ICWA and state law reflects a deliberate choice by Congress, given the states’ role in creating the very problems that ICWA was intended to address.  With regard to the equal protection concerns cited in the Couple’s and guardian’s briefs, to the extent that ICWA treats Indian children differently, it does so not because of their race but instead based on political concerns – membership in a tribe.  It therefore easily passes constitutional muster because it advances the Tribe’s interest in maintaining its membership.  Finally, ICWA does not violate due process by depriving Baby Girl of her right to a “best interests” inquiry.  Although she has no such constitutional right and the South Carolina Supreme Court held that her placement with the Father was in her best interests, in any event Congress’s enactment of ICWA reflects its judgment that the law was intended to further the best interests of Indian children generally.


This case is unlikely to conclude with a happy ending:  either Baby Girl’s Father, with whom she will have lived for nearly eighteen months by the time the Court issues its decision, or Adoptive Couple, with whom she spent the first twenty-seven 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.

Having said all that, the plain language of the ICWA does seem to encompass this case, and that may be enough for at least five Justices.  On the other hand, the Court overwhelmingly grants certiorari to reverse the lower court’s decision – a statistic that no doubt has ICWA supporters concerned, particularly when combined with the overall poor track record of Native Americans at the Court in recent years.  (As one Native American attorney and activist explained last year, “[p]risoners fare better at the Supreme Court than Native Americans.”)

Recommended Citation: Amy Howe, Argument preview: Court to take on law and emotion in Indian adoption case, SCOTUSblog (Apr. 13, 2013, 8:40 PM),