Supreme Court to hear child custody fight; at crux is law on tribal rights

US Supreme Court on Tuesday hears an appeal of an adoptive couple seeking the return of the girl they raised for two years. The child now lives with her father, a member of the Cherokee Nation, per order of a lower court.

By , Staff writer

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    An American flag flies in front of the Supreme Court in Washington, D.C., June 2012.
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“Adoptive Couple v. Baby Girl” is not the kind of case that usually finds its way to the US Supreme Court. On Tuesday, the justices take up an appeal that could well require the wisdom of Solomon, and then some.

The emotionally charged case involves a dispute over custody of a young child known in court papers simply as “Baby Girl.” At issue is the applicability of a federal law designed to preserve the culture and heritage of native Americans and the viability of their tribes.

Caught up in the dispute are the birth mother, known as “Mother” in court papers, who put the child up for adoption, the objecting “Father,” who is a member of the Cherokee Nation, and the “Adoptive Couple,” who are not members of a native American tribe.

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The case is important because it will help clarify for judges across the country how to weigh conflicting claims at the intersection of state child custody laws and a federal law known as the Indian Child Welfare Act.

Here are the facts:

Baby Girl was born to an unwed mother in Oklahoma in September 2009. The next day, she was placed with Adoptive Parents and raised in Charleston, S.C. When Baby Girl’s biological father discovered she’d been placed for adoption, he opposed the action.

Lawyers for the adoptive couple argued that the father had relinquished his parental rights by failing to provide any financial support for the birth mother during her pregnancy.

But there is an important twist in the case. The father is a member of the Cherokee Nation, and a federal law – the Indian Child Welfare Act – generally bars the adoption of an Indian child by non-Indians.

Congress passed the ICWA in 1978 to address abusive child-welfare practices that had resulted in 25 percent to 35 percent of all Indian children being removed by government authorities from their families and placed for adoption or in foster homes. Ninety percent of adopted children were placed in non-Indian homes.

The ICWA was designed to protect the rights of every child born of Indian heritage, as well as the rights of the Indian community and tribe to preserve its culture by retaining and raising its own children.

Citing the ICWA, a South Carolina family court judge ordered the adoptive couple in Charleston to turn the child over to her father in Oklahoma. Until that point, the adoptive mother and father were the only parents the 2-year-old toddler had ever known.

The family court judge determined that the ICWA trumped state child custody laws that otherwise would have upheld the adoption. The South Carolina Supreme Court affirmed by a 3-to-2 vote.

“We do not take lightly the grave interests at stake in this case,” the state high court said, acknowledging that the law required that the child be transferred to the biological father.

“Adoptive Couple are ideal parents who have exhibited the ability to provide a loving family environment for Baby Girl,” the court said. “Thus, it is with a heavy heart that we affirm the family court order.”

Baby Girl was turned over to her biological father on Dec. 31, 2011. She has lived with her father and his parents in Oklahoma ever since. She is now 3 years, 7 months old.

The adoptive parents want her back and they are asking the US Supreme Court to make it happen.

Their lawyers argue that the father forfeited any potential parental rights when he refused to provide financial support to the mother during her pregnancy and expressed no interest in the child’s welfare prior to objecting to the adoption.

But that is only one side of the story. When the mother learned she was expecting a child, the mother and biological father were engaged to be married. When he learned she was pregnant, the father urged his fiancée to move up the wedding so that the child would be born to a married couple.

The mother, who already had two children from a prior relationship, refused. She wanted the father to provide financial support, but she was unwilling to marry him. He was unwilling to provide financial support until she agreed to marry him.

The relationship deteriorated.

After he refused to provide support, the mother decided to put Baby Girl up for adoption. The father, a soldier in the US Army, was not informed of this fact until 12 days before his 11-month deployment to Iraq (where he would receive a Bronze Star). Legal papers for the adoption had been filed four months earlier in South Carolina.

Lawyers for the adoptive parents argue in their brief to the court that the biological father never took any responsibility or action that would qualify him as a “parent” under the ICWA. Being the biological father alone isn’t enough.

“Congress did not plausibly intend to extend ICWA to sperm donors and indeed, even rapists who can prove a biological relationship to an Indian child,” Washington lawyer Lisa Blatt wrote in her brief.

If the South Carolina court decisions are upheld, she said, it would “permit biological fathers of Indian children to repudiate their parental responsibilities under state law while retaining a back-pocket veto over the mother’s choice to place her child for adoption.”

Lawyers for the father, offer a different perspective. “Baby Girl’s natural father unquestionably is a ‘parent’ protected by ICWA’s guarantees against the termination of parental rights,” wrote Washington lawyer Charles Rothfeld in his brief.

“Petitioners assert that ‘Father stepped in at the eleventh hour to block an adoption that was lawful and in the ‘best interests’ of Baby Girl. That statement is false and cannot go unchallenged,” Mr. Rothfeld said.

“In fact, Father asserted his claim to raise his daughter literally the moment he was belatedly informed of the attempted adoption, which never would have gone forward at all had accurate information about Father and Baby Girl been provided to Oklahoma authorities and the Cherokee Nation,” he wrote.

Blatt argued that the ICWA is designed to prevent the breakup of preexisting Indian families, but Baby Girl was never part of an Indian family.

The birth mother is of Hispanic heritage and Baby Girl is deemed to be 3/256ths Cherokee. She never lived on tribal land and her Indian father had severed all ties with her mother before Baby Girl was born, Blatt said.

“Neither the father nor the tribe has any legitimate interest or right to dictate how the child is raised by the non-Indian mother with sole custody,” she wrote.

Lawyers for The Cherokee Nation disagree. They wrote in their brief that Congress fashioned the ICWA broadly to protect Indian children in a variety of situations, including adoptions at birth where there would be no preexisting contact with an Indian family.

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