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Tuesday, April 16, 2013

Parental Rights, US Supreme Court to Define “Parent” in Adoption Case

The US Supreme Court will be deciding the fate of a baby girl who was put up for adoption and who had lived with her adoptive parents for two years since her birth. The child is now residing with the biological father and the father’s parents.

In January 2009, the biological mother, a non-Indian, became pregnant. At the time, she was the single mother of two children by another relationship and she was engaged to be married to the biological father, who was a member of the Cherokee Nation and serving in the United States Army and stationed in Oklahoma. In May 2009, she broke off the engagement and began to work with an adoption attorney to place the child with an adoptive, non-Indian couple in South Carolina. The biological father insists he did not understand that she was putting the child up for adoption. He thought that she was asking him to surrender his parental rights only to her, not to third-party non-Indian couple who wanted to adopt the child. In June 2009, the biological mother sent a text message to him asking if he would rather pay child support or surrender his parental rights. He responded via text message that he would relinquish his rights, but later testified that he believed he was relinquishing his rights to the biological mother alone and insists that, had he known about her plans to put the child up for adoption, he would have never considered relinquishing his rights.

State courts such as New Jersey, South Carolina and other state courts, generally use “the best interests of the child” standard in determining custody disputes.

The issues to be determined by the US Supreme Court 12-399 in a case entitled ADOPTIVE COUPLE V. BABY GIRL are:

The Indian Child Welfare Act of 1978 (ICWA), 25 U.S.C. §§ 1901-63, applies to state custody proceedings involving an Indian child. A dozen state courts of last resort are openly and intractably divided on two critical questions involving the administration of ICWA in thousands of custody disputes each year:

(1) Whether a non-custodial parent can invoke ICWA to block an adoption voluntarily and lawfully initiated by a non-Indian parent under state law.
(2) Whether ICWA defines "parent" in 25 U.S.C. § 1903(9) to include an unwed biological father who has not complied with state law rules to attain legal status as a parent.

Because this case involves an Indian child, any child custody proceeding must be decided within the parameters of the Indian Child Welfare Act ( ICWA) 25 U.S.C. § 1901–1963 (1978). The Indian Child Welfare Act was enacted out of rising concern over the consequences to Indian children, families, and tribes stemming from abusive child welfare practices that resulted in the separation of large numbers of Indian children from their families and tribes through adoption or foster care placement, usually in non-Indian homes. Miss. Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 32 (1988).

In the Decision below, 731 S.E.2d 550, decided by the South Carolina Supreme Court, the history and purpose of Indian Child Welfare Act was discussed by South Carolina Chief Justice Toal :

“The evidence presented to Congress during the 1974 hearings revealed that "25 to 35% of all Indian children had been separated from their families and placed in adoptive families, foster care, or institutions." ...Moreover, "[t]he adoption rate of Indian children was eight times that of non-Indian children" and "[a]pproximately 90% of the Indian placements were in non-Indian homes." Id. at 33 (citation omitted). At the Congressional hearings, a Tribal Chief described the primary reason for such removal as follows: One of the most serious failings of the present system is that Indian children are removed from the custody of their natural parents by nontribal government authorities who have no basis for intelligently evaluating the cultural and social premises underlying Indian home life and childrearing. Many of the individuals who decide the fate of our children are at best ignorant of our cultural values, and at worst contemptful of the Indian way and convinced that removal, usually to a non-Indian household or institution, can only benefit an Indian child. ..Although Congress primarily sought to prevent the involuntary removal of American Indian or Alaska Native Indian children from their families and tribal communities and placement of these children into both foster care and adoptive placements, ..Congress was likewise concerned with the voluntary adoptions of Indian children. Aside from the avoidance of culturally inappropriate removal of Indian children, Congress intended the ICWA to preserve tribal sovereignty with respect to its familial affairs. .....The numerous prerogatives accorded the tribes through the ICWA's substantive provisions . . . must, accordingly, be seen as a means of protecting not only the interests of individual Indian children and families, but also of the tribes themselves.”

When a native American child is to be place for adoption, Oklahoma law requires that the child’s Indian tribe be notified. However, here someone misspelled the father’s name and provided an incorrect date of birth, so the tribe was not put on notice of the proposed adoption to non-Indians. The pre-placement form indicated "Initially the birth mother did not wish to identify the father, said she wanted to keep things low-key as possible for the [Appellants], because he  registered in the Cherokee tribe. It was determined that naming him would be detrimental to the adoption." adoption

The opinion Filed July 26, 2012 by the Supreme Court of South Carolina states the sequence of events in this matter:

“Mother testified that she knew "from the beginning" that Father was a registered member of the Cherokee Nation, and that she deemed this information "important" throughout the adoption process.5 Further, she testified she knew that if the Cherokee Nation were alerted to Baby Girl's status as an Indian child, "some things were going to come into effect, but [she] wasn't for [sic] sure what." Mother reported Father's Indian heritage on the Nightlight Agency's adoption form and testified she made Father's Indian heritage known to Appellants and every agency involved in the adoption. However, it appears that there were some efforts to conceal his Indian status. In fact, the pre-placement form reflects Mother's reluctance to share this information:

Initially the birth mother did not wish to identify the father, said she wanted to keep things low-key as possible for the [Appellants], because he's registered in the Cherokee tribe. It was determined that naming him would be detrimental to the adoption."

Appellants hired an attorney to represent Mother's interests during the adoption. Mother told her attorney that Father had Cherokee Indian heritage. Based on this information, Mother's attorney wrote a letter, dated August 21, 2009, to the Child Welfare Division of the Cherokee Nation to inquire about Father's status as an enrolled Cherokee Indian. The letter stated that Father was "1/8 Cherokee, supposedly enrolled," but misspelled Father's first name as "Dustin" instead of "Dusten" and misrepresented his birthdate.

Because of these inaccuracies, the Cherokee Nation responded with a letter stating that the tribe could not verify the father's membership in the tribal records, but that "[a]ny incorrect or omitted family documentation could invalidate this determination." The mother testified she told her attorney that the letter was incorrect and that the father was an enrolled member, but that she did not know his correct birthdate. The adoptive Mother testified that, because they hired an attorney to specifically inquire about the baby's Cherokee Indian status, "when she was born, we were under the impression that she was not Cherokee." .. When the birth mother arrived at the hospital to give birth, she requested to be placed on "strictly no report" status, meaning that if anyone called to inquire about her presence in the hospital, the hospital would report her as not admitted

The adoptive parents, who had given financial support to the mother during the pregnancy, were in the delivery room when mother gave birth on September 15, 2009. The adoptive father cut the umbilical cord. The next morning, the birth mother signed forms relinquishing her parental rights and consenting to the adoption by the adoptive parents who were required to receive consent from the State of Oklahoma pursuant to the Oklahoma Interstate Compact on Placement of Children ("ICPC") as a prerequisite to removing the baby from Oklahoma. The birth mother signed the forms which reported the baby’s ethnicity as "Hispanic" instead of "Native American." After the baby was discharged from the hospital, the adoptive parents remained in Oklahoma with the baby for approximately eight days until they received ICPC approval and then took the baby to South Carolina. According to the testimony of a Child Welfare Specialist with the Cherokee Nation, had the Cherokee Nation known about the baby’s Native American heritage, the adoptive parents would not have been able to remove the baby from Oklahoma. The adoptive parents filed the adoption action in South Carolina three days after the baby’s birth, but did not serve or otherwise notify the birth father of the adoption action until January 6, 2010, approximately four months after she was born and a couple days before Father was scheduled to deploy to Iraq. The birth father testified he believed he was relinquishing his rights to the birth mother alone and did not realize he consented to the baby’s adoption by another family until after he signed the papers. On January 11, 2010, he requested a stay of the adoption proceedings under the Service Member's Civil Relief Act ("SCRA"). The adoption case was heard in Family Court in September 2011. The birth father contested the adoption, and the Cherokee Nation intervened. The family court found in this case that during her pregnancy and after the child's birth, the birth father was a full time member of our military, earning income. Though he had the ability to do so, he never attempted to offer any type of meaningful financial or other support to the birth mother or his child. In essence, prior to being served with the adoption lawsuit when the child was four months old, he made no meaningful attempts to assume his responsibility of parenthood . . . .

Despite this finding, the family court concluded the biological father did not willfully fail to support the child under state law. The court denied the South Carolina’s couple petition to adopt the child, and ordered that the child be returned to the biological father. On November 25, 2011, the court issued a ruling, holding that the Indian Child Welfare Act applied and was not unconstitutional, that the "Existing Indian Family" exception was inapplicable in this case, that the biological father did not consent to the termination of his parental rights or the adoption of his child, and that the adoptive parents had failed to show that the biological father’s parental rights should be terminated. Adoptive Couple v. Baby Girl, 398 S.C. 625; 731 S.E.2d 550 (2012)

The court then ordered the the adoptive parents to turn over the child. The case was widely reported in the media, including the New York Times, the Charleston City Paper and the Charleston Post and Courier,

The case was then appealed to the Supreme Court of South Carolina.

The South Carolina Supreme Court had to decide the following issues:

I. Whether Appellants properly transferred Baby Girl to South Carolina.
II. Whether the ICWA defers to state law in determining whether an unwed father is a "parent" as defined by the ICWA.
III. Whether Appellants proved grounds to terminate Father's parental rights under the ICWA. cite to judicial opinion.

At issue was whether the termination of parental rights was rightfully sought on the basis of the biological father’s willful abandonment of parental rights and responsibilities. While the biological father was in Iraq until December 2010, he failed to request visitation until he was deposed in this case. At the time of his request, the baby girls was twenty-two months old, and he had returned from active duty seven months earlier.

Chief Justice Toal stated in his opinion,

"I find disingenuous Father's claimed lack of awareness of his parental rights—by his own admission he knew of Mother's pregnancy and was informed of Baby Girl's expected due date. ....Yet, other than his intervention in the adoption proceeding, his conduct towards Baby Girl remained unchanged until February 2011 when he first attempted to support the child....... It is of no moment that a father is under no family court order requiring support payments............A finding of abandonment necessarily encompasses "conduct on the part of the parent which evinces a settled purpose to forego all parental duties and relinquish all parental claims to the child." Hamby v. Hamby, 264 S.C. 614, 617, 216 S.E.2d 536, 538 (1975)."

Nevertheless, Chief Justice Toal further described why he reached the decision that the child should be with the biological father and not adopted:

“ While the best interests of the child standard is always a guiding consideration when placing a child, any attempt to utilize our state's best interests of the child standard to eclipse the ICWA's statutory preferences ignores the fact that the statutory placement preferences and the Indian child's best interests are not mutually exclusive considerations. Instead, the ICWA presumes that placement within its ambit is in the Indian child's best interests. See In re C.H., 997 P.2d 776, 784 (Mont. 2000) ("[T]he best interests of the child . . . is an improper test to use in ICWA cases because the ICWA expresses the presumption that it is in an Indian child’s best interests to be placed in accordance with statutory preferences. To allow emotional bonding—a normal and desirable outcome when, as here, a child lives with a foster family for several years—to constitute an 'extraordinary' emotional need [comprising good cause to deviate from the preferences] would essentially negate the ICWA presumption." (emphasis added)). Therefore, "the unfettered exercise of [state] discretion poses a real danger that the ICWA preferences will be overridden upon the slightest evidence favoring alternative placement." Barbara Ann Atwood, Flashpoints under the Indian Child Welfare Act: Toward a New Understanding of State Court Resistance, 51 Emory L.J. 587, 645 (2002). Thus, the bonding that has occurred between Appellants and Baby Girl has not satisfied this Court that custody with Father is against Baby Girl's best interests. For this reason, under these facts, we cannot say that bonding, standing alone, should form the basis for deviation from the statutory placement preferences."

The South Carolina State Supreme court affirmed the family court order that the child stay with the biological father. It ruled that because this case involves an Indian child, the ICWA applies and confers conclusive custodial preference to the Indian parent, and all of the other determinations flow from this reality. The Court viewed this as a case as one in which the dictates of federal Indian law supersedes state law where the adoption and custody of an Indian child is at issue. In particular the birth Father, a native American, never consented to baby’s adoption, and the court could not find that custody by the biological father would result in serious emotional or physical harm to the child . The opinion stated that under the federal standard the court could not terminate biological father's parental rights and so affirmed the family court's transfer of custody to Father and denial of the adoption decree.

The court’s opinion however was not unanimous and there was a strong dissent. Justice Kittredge dissented that the Court was not considering the child without regard to her best interests and welfare. She disagreed that Congress intended the Indian Child Welfare Act32 (ICWA or Act) to be applied in derogation of the child's best interests and welfare or that the ICWA replaces state law with regard to a child's best interests"). According to Judge Kittredge, the ICWA envisioned a symbiotic relationship between the additional protections of the Act and well-established state law principles for deciding custody matters in accordance with the best interests of the child and because a child is an "Indian child" is should not alter the “best interests of the child standard for the placement question." It was Judge Kittering view that Congress intended ICWA cases to be decided based on a preference for placement with an Indian family, not an absolute mandate for an Indian family placement. Justice Kittredge wrote in her dissent that she would reverse and remand for the entry of an order terminating the father's parental rights and approving the adoption, and order the immediate return of the minor child to the adoptive parents.

Justice Hearn joined Justice Kittredge's dissent. Like Justice Kittredge, Justice Hearn viewed both the facts of this case which emanate solely from biological father's conduct and the legal principles underlying termination of parental rights and adoption as requiring judgment in favor of the adoptive parents. Justice Hearn’s review of the record convinced him that the biological father turned his back on the joys and responsibilities of fatherhood at every turn. Justice Hearn believed the majority minimized the telling fact that the biological father told the biological mother in writing after the child’s birth that he would relinquish his parental rights rather than support her and the child. “I do not join the majority in accepting his laughable explanation that he did this as a way to convince Mother to marry him. In stark contrast to Father's behavior in completely shirking his parental responsibilities, every action taken by Adoptive Couple since they learned she was going to be their child has demonstrated their deep and unconditional love and commitment to Baby Girl. ....I profoundly disagree with the majority's elevation of the Indian Child Welfare Act (ICWA) to a position of total dominance over state law and settled principles of the best interests of the child, a position which I find totally unsupported by ICWA jurisprudence. As Justice Kittredge demonstrated, Father's last-ditch efforts to embrace a relationship with his daughter under the cloud of litigation are far too little and much too late. I cannot fathom that Congress intended ICWA to require the return of a child to a parent who consistently, by his words and actions, evinced a desire to forego his responsibilities as a father.”

Contact Hope A. Lang, Attorney at Law, today for a free consultation.

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