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Supreme Court applies Federal Indian Child Welfare Act to prevent adoption

The July 26, 2012 South Carolina Supreme Court opinion in Adoptive Couple v. Cherokee Nation, 398 S.C. 625, 731 S.E.2d 550 (2012), had been long anticipated.  The story of two-year old Veronica ripped from her adoptive parents who had raised her since birth and returned to her biological father in Oklahoma was a local media sensation, with comments from the governor, and demonstrations and petition drives (described and documented in this earlier blog).  Six different parties filed briefs, including Amicus Curiae briefs from the American Academy of Adoption Attorneys, Catawba Indian Nation, the North American Council on Adoptable Children, the Child Welfare League of America, the National Indian Child Welfare Association, and the Association on American Indian Affairs.

The 3-2 decision leaves custody with the father.  The numerous bitterly disputed material factual issues resulted in a 29-page majority opinion, one 43-page dissent, and a second one-page dissent.  Because there are few South Carolina cases in which the Federal Indian Child Welfare Act (ICWA) applies, this opinion is unlikely to affect a major change in South Carolina adoption and custody law.  The basic legal dispute was over how much the ICWA limits South Carolina’s termination of parental rights statute.  Yet the majority opinion’s holding that termination of Father’s parental rights was not in the child’s best interests rendered application of the ICWA unnecessary to its affirmance.

In this case Father and Mother, who resided in Oklahoma, were engaged when Mother conceived the child at issue.  Their relationship soured and Father offered Mother no support during her pregnancy, even suggesting that he relinquish his parent rights.  Mother then distanced herself from Father and, before Baby Girl was born, located Adoptive Couple.  Mother prevented Father from attending the birth while the Adoptive Couple was present for Baby Girl’s birth.

Prior to Baby Girl’s birth, Mother informed the Adoptive Couple that Father may have been a member of the Cherokee Nation but she supplied the Adoptive Couple inaccurate information about Father’s name and date of birth.  Adoptive Couple’s attorney wrote to the Cherokee Nation to inquire about Father’s status as an enrolled Cherokee Indian.  Based on these inaccuracies, the Cherokee Nation responded with a letter stating that the tribe could not verify Father’s membership in the tribal records, but that “[a]ny incorrect or omitted family documentation could invalidate this determination.”

After Baby Girl’s birth, Mother signed required documentation, reporting Baby Girl’s ethnicity as “Hispanic” instead of “Native American.”  Thus, when the Adoptive Couple applied for consent from the State of Oklahoma pursuant to the Oklahoma Interstate Compact on Placement of Children (“ICPC”) as a prerequisite to removing child from that state, Oklahoma was unaware of child’s Indian heritage and approved the removal.  Adoptive Parents then took Baby Girl to South Carolina and filed an adoption action.

Upon being served with the adoption action, Father signed an acceptance of service and an answer which stated he was not contesting the adoption of Baby Girl and that he waived the thirty day waiting period and notice of the hearing.  Father testified he believed he was relinquishing his rights to Mother and did not realize he consented to Baby Girl’s adoption by another family until after he signed the papers.  Upon realizing that Mother had relinquished her rights to Adoptive Couple, Father testified, “I then tried to grab the paper up. [The process server] told me that I could not grab that [sic] because . . . I would be going to jail if I was to do any harm to the paper.”

Father then brought a custody action in Oklahoma, which was dismissed.  He then sought to challenge the adoption in South Carolina.  The Cherokee Nation also intervened and joined Father’s request that he be given the child.  After the trial, the family court determined that the ICWA applied, that Father developed parental rights to the child, and there were not grounds to terminate his parental rights.  As a result the court ordered the child be placed with Father. Adoptive Parents appealed and during the appeal physical custody was transferred to Father, who took Baby Girl to Oklahoma.

Due to Mother’s misinformation regarding Father’s name and date of birth and Baby Girl’s ethnic heritage, neither the State of Oklahoma nor the Cherokee Nation was timely made aware that Baby Girl’s placement fell under the protections of the ICWA.  Both the majority and dissent go into an extensive analysis of the ICWA.  Basically, this act is designed to limit the adoption of Indian children by non-Indian parents.  Both Indian parents and Indian tribes have rights under the ICWA, as part of the goal of this act is to allow Indian tribes to attempt family placement or tribal placement before a child can be placed outside of the tribe.

Before an Indian Child can be placed with a non Indian family and an Indian parent’s parental rights terminated, Section 1912(f) of the ICWA requires a qualified expert to provide evidence satisfying the court 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.”  At trial a licensed clinical psychologist and designated forensic psychologist testified that he believed beyond a reasonable doubt that Baby Girl’s removal from Adoptive Couple would cause serious emotional harm.  However, he could not say what long-term harm would result from Baby Girl’s removal.  Thus the family court found there was insufficient evidence to overcome Section 1912(f).  The family court further found that it was in Baby Girl’s best interests to be with Father.  The majority opinion concurred with both of these findings.

The dissents “[w]ith great respect for the majority” contested these findings, often with impolitic language, to wit:

I believe it [the majority] has recast the facts to portray Father in an undeserved favorable light, thus creating the illusion that Father’s interests are in harmony with the best interests of the child.

Because Father had evaded all parental responsibilities, he did not learn that Baby Girl was placed for adoption until he was served with a copy of Appellants’ adoption complaint on January 6, 2010, a fact that the majority somehow believes inures to Father’s benefit.

Before acknowledging this issue is not before us, the majority’s superfluous discussion attributes nefarious motives to Appellants and refers to Baby Girl’s transfer to South Carolina as improper.

I would adopt this well-reasoned approach and reject the majority’s approach of applying ICWA in a rigid, formulaic manner without regard to the facts of the particular case and the best interests of the Indian child.

The majority avoids the family court’s findings with respect to termination of Father’s parental rights under state law.

Unlike the majority, my view is predicated upon the guiding principle that “[t]he welfare and best interests of the child are paramount in custody disputes.”

I cannot understand the majority’s continued emphasis on the primacy of tribal sovereignty as determinative of the outcome of this action.

The Court notes “that even under South Carolina law, we do not terminate parental rights merely because a parent is not a perfect parent.”  I agree, as this is simply another example of the majority attributing to me a position I do not take.  It is clear to me from the totality of the majority’s analysis that its application of ICWA has eviscerated any meaningful consideration of Baby Girl’s best interests, despite its lip service to this settled principle.

I would not minimize, as the majority does, the telling fact that Father told Mother in writing after Baby Girl’s birth that he would relinquish his parental rights rather than support her and Baby Girl, and I do not join the majority in accepting his laughable explanation that he did this as a way to convince Mother to marry him.

Nevertheless, today, the majority goes out of its way to re-cast the facts in a light unfavorable to Adoptive Couple and overlooks Father’s clear course of conduct, affording him a second chance at fatherhood, all at great emotional cost to Baby Girl and Adoptive Couple.

This is pure speculation but I note that Justice Kittredge’s dissent is both longer than and reprises much of the lengthy factual recitation of the majority opinion.  It is possible that Kittredge was initially drafting a majority opinion when either Justice Beatty or Justice  Pleicones defected.  Such a defection might also explain the noteworthy bitterness of Kittredge’s dissent.

Being no expert on the ICWA, I have no opinion on how the court should have balanced the greater protections Indian tribes and Indian parents are granted to prevent such adoptions against South Carolina’s law on termination of parental rights.  However, I find the majority opinion disingenuous in its agreement that even absent the ICWA protections it would have been in child’s best interests to be raised by Father.  Just last year the Supreme Court denied parental rights to a Father who seemed to have been much more proactive than this Father, and therefore allowed adoption of his child absent his consent. Roe v. Reeves, 392 S.C. 143, 708 S.E.2d 778 (2011).  In 2010 the Supreme Court reversed the Court of Appeals and denied parental rights to a father who showed a similar disinterest in his child until he filed a visitation action when his child was nine months old. Doe v. Roe, 386 S.C. 624, 690 S.E.2d 573 (2010).

Father’s repeated manifestations of disinterest in parenting this child until he was served with adoption proceedings render him unsympathetic.  That Adoptive Couple obtained placement of Baby Girl and removed her from Oklahoma based on inaccurate information supplied by Mother undercuts their legal position without it necessarily being their fault.  The Cherokee Nation’s federally protected interests in having its children raised within its culture adds factors rarely encountered in adoption cases.  This was a hard case.  A narrow holding for Father on the basis of the ICWA may be justified.  But the majority’s finding that under South Carolina it was not in Baby Girl’s best interests that Father’s parental rights be terminated cannot be reconciled with Roe v. Reeves and Doe v. Roe.  This is one of those rare family court cases capable of United States Supreme Court review.  I would not be surprised to see Adoptive Parents seeking reconsideration and then certiorari.

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