Supreme Court Takes Case on Parentage, ICWA

One more quick note here.   Today the US Supreme Court agreed to review a case known as Adoptive Couple v. Baby Girl.   It’s rather an odd title but the issue it presents is potentially quite important.   Supreme Court forays into family law are infrequent (because most family law is controlled by state rather than federal law) and they are always worth following.

The link to the Scotus blog will take you to all the briefing of the case, but I found this brief particularly helpful.    I’ll summarize facts and background, taken from several briefs, here.

ICWA is the Indian Child Welfare Act.   It was enacted to protect Indian parents, children and tribes in response to a long history of systematically removing Indian children from their homes and their tribes.  It provides for enhanced procedural protections for an Indian child and for extra safeguards before the rights of an Indian parent can be terminated.This means, of course, that being a parent (and here it means legal parent) matters.  If you are not a legal parent then there are no safeguards.  If you are a legal parent, then there are safeguards.

Now there has been frequent discussion–most recently with regard to Utah–over the ways in which states assign legal parentage to unmarried men.    This is the point raised in the case before the Supreme Court.

Birth mother is not Indian.  She lived in South Carolina.   She wished to place the child for adoption.   Sometime during the pregnancy, Birth Father sent a text to Birth Mother stating that he wanted to relinquish any rights he might have.   Birth Father is a member of the Cherokee Nation.     After receiving the text, Birth Mother began adoption proceedings.  Adoptive Family (and not Birth Father) suppored Birth Mother during the last months of her pregnancy.  When the child was born, she went to live with Adoptive Family.

It seems clear that Birth Father did not do the things he would be required to do under South Carolina law to be recognized as a legal father.  (I’m not sure what they are, but it doesn’t seem to be important.)    As far as I contend,  no one contends that the South Carolina standard violates the US Constitution.    But the South Carolina Supreme Court decided that under ICWA Birth Father was a legal parent even though under South Carolina law he was not.   It’s not entirely clear to me what the standard the SC Supreme Court used was–but it’s certainly not ordinary SC law.

There’s enormous confusion among the states on this point.  Some states apply their own law to determine legal parental status first and only then turn to ICWA.  Others, like SC, view ICWA as providing an indepedent standard.   Ultimately the question is what makes an unmarried man a legal parent an where does the rule of law on that question come from–ICWA or state law?   It will be important to see what the Court has to say.

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26 responses to “Supreme Court Takes Case on Parentage, ICWA

  1. I do think it is good that the Supreme Court speaks to ICWA as it will provide guidance in future cases.

    Two questions:

    1. How does the law regarding protection of people serving in the military factor in – can’t remember the name. Does it factor in, should it factor in. He was in boot camp and deployed within days.

    2. By the time the Supreme Court rules (est. June) the child will have lived with the father for 18 months, compared to the 24 months with the other family. Given the recent 18 months – even if the Supreme Court rules in favor of the adopting couple – how is the BIC handled. I think I would argue that the 18 months is from a time period where the child has awareness and memories vs the 24 month period from birth – both from a recency and bond perspective and from a cognitive level. It is also consistent with the argument adopting parents use all the time.

    • I don’t think the Supreme Court will get to the second question you’ve got here. You can actually see the main questions it expects to address at the scotus blog. The thing is, if the man was a legal father within the meaning of ICWA then what happened here is legally correct. But if the meaning of “legal father” under ICWA is tied to “legal father” under state late, then this man is not a legal father and ICWA does not give him any special legal protections. In that case, what happened was wrong and the child should have remained with the adoptive parents.

      If the Supreme Court decides that state law controls who is a legal father–even under ICWA–then I think the Court will send the case back to the South Carolina Supreme Court to figure out what happens next. And that court will, I would guess, reinstate the earlier court order and return custody to the adoptive parents.

      This does mean there’s an awful lot of disruption in the child’s life and that’s a problem. But this is what happens in family law sometimes. It sometimes take courts a while to figure out what the law should be and as the time passes, the child does have to be somewhere.

      I just realized I had written about this case just a year ago and in fact raised some of those same concerns about the passage of time. https://julieshapiro.wordpress.com/2012/01/04/when-adoption-is-undone/

  2. i do not understand why it matters if icwa is applied before or after?

  3. Wow. The birth of his offspring makes him a parent. If she had not wanted to relinquish their child for adoption, you can be sure that the birth of his offspring would have been sufficient for the law to hold him accountable to and for his child’s care and upbringing. Even if a long period of time had gone by without him being named on the birth record and even against his wishes the law would hunt him down and hold him accountable for his offspring in arrears back to the date of birth for child support because his child is entitled to his support and care whether or not his identity is yet known. If he was not identified until the child was 5 years old, he would ow child support for the previous 5 years because he always was the child’s father always was responsible for taking care of her the child always had the right to have him do that because he is her father.
    Why does the child suddenly loose that right because of the desires of the adults involved

    • Remember the recurrent thing in this blog is a focus on who is a LEGAL parent, not who is a genetic parent. I hope it is clear by now that (while people may not like it) being a genetic parent does not necessarily make you a legal parent. The law is (unsurprisingly) all about LEGAL parentage.

      The question in this case, with this guy is whether given the facts (which include his genetic relationship) is he a LEGAL parent and what body of law do we use to figure that out. It’s clear that were he a non-tribal member that under South Carolina law (which seems to apply) he would not be a legal parent. Does ICWA change that? We will see. But please understand that this is not some sort of easy question just because he is genetically related, even though you would like it to be.

      • I think I am addressing whether or not he’d be a legal parent. You don’t read past my first sentences do you? If the mother were not attempting to relinquish this child for adoption, tell me Julie would the law have viewed this man as the legal father of this child? Would she have been able to file a paternity suit and win support for their child based solely upon the fact that he is the genetic father? Or had she filed for state assistance, would the state have been able to recoup its losses and garnish his wages based solely upon the fact that he is the genetic father? In either instance would the child have been entitled to her genetic father’s financial support under the Uniform Parentage Act given the fact that her genetic parents are unmarried? Would this man be considered this child’s legal father based solely upon genetic relationship if the mother did not wish to relinquish the child for adoption? Yes he would have been whether he liked it or not, that is exactly how it would go down in any state in the union. So why is it that the rules change and the child deserves suddenly less when the mother is not interested in raising the child herself?

        I say it is financially motivated on the part of the state because it leaves the child with one or possibly two parents on public assistance and that is wrong. But don’t say that I’m just talking about genetics willy nilly that is not fair to me I’m talking about legal parenthood too I know the point of the blog. I stop by here every now and again. I know the menu.

        • It’s true that I went off on your first sentence, but that is because it is either confusing or wrong. The birth of the offspring does not make him a legal parent. It does make him a genetic parent. I don’t know which you mean. But the first sentence appeared to me to be the premise of the comment (which I did read through) so I thought I’d best take issue with it. After all, other people read this besides you and and me. Perhaps I am wrong in this, but I am disinclined to let statements like the first one pass without comment for the reasons just noted–at the very least it is confusing.

          You are quite likely right that had the mother sought to retain custody and then needed/wanted child support then the genetic father would have been found to be a legal father, too. I think we’ve talked about this elsewhere on the blog but perhaps not recently. When the state (or the mother) needs to find a father, particularly for financial reasons, resort to genetics is not uncommon. It has the virtue of guaranteeing that there will be some man out there who fits the bill.

          I think there are two things going on here. First, as the case developed it was one with too many parents rather than too few. In other words, there were people who wanted to be adoptive parents plus the genetic father. When there are too many parents different rules come into play. You can say this is wrong, but I offer it as an observation–I think it describes the way things work.

          Second, you could understand this as similar to what goes on in Utah. We (society) would like to place the child with a nice married family. “Married” being the key. If the genetic parents were married there would be no issue here, but they are not. Under those circumstances, if the genetic mother wants to give the child up for adoption so it can be raised by that mythical nice married family, then many states make it easy for her to do so. Utah perhaps most of all, but it is maybe a question of degree rather than direction. Perhaps this is tied to the too many parents point–maybe it is fair to say that legal parenthood based on genetics alone is a fallback–invoked when there isn’t anyone better to pick? Again, I do not mean you need to agree with this, but I’m wondering if it is an accurate description of how it is treated.

          • Ahh that is better. So OK as a person that values consistency, it is very frustrating to observe that he is for all intents and purposes a legal parent absent the adoption.
            So the child has this right to a relationship and support from her unmarried bio father when the mother does not want to give her up for adoption. hmm

            So the child really has no right to anything unless the mother says so? The UPA is all kinds of skidgywampus

  4. As this case has been very close to my heart, I’ve followed it for a long time. I just wanted to clarify a few points here for you. Bio mother and father are both from Oklahoma (bio mom isn’t from SC and doesn’t live there as you reported). Parental rights cannot be relinquished via text and especially not in cases involving Native Americans. There was much arguing back and forth between mother and father via text and the text messages shown seem to be out of order. Mother admitted to the court that by admitting father’s Indian heritage, she knew the adoption would not take place so she chose to lie about it. She also reported his information incorrectly so that when they checked his tribal membership, they were unable to find him, hence the tribe would not step forward and ICWA rights could be circumvented. Further, he waited NO time to come forward and claim his baby once notified, however, adoptive parents and mother chose to hide the birth and not inform him of baby’s whereabouts or intent to adopt until a few days before his deployment to Iraq (and while he was on another base in another city). As soon as he found out, he filed for custody.

    • First off, thanks for the corrections. I may have just wrongly assumed that the genetic mother was from South Carolina. I do know that the facts are in dispute and you can tell that if you read through more of the briefs on the Supreme Court website. I recommend this for anyone who really cares about the case.

      I think the Supreme Court will try to avoid the messy factual questions. There is actually a significant legal question it hopes to resolve: Whether the law you use to figure out whether the man is a legal father is South Carolina law or whether you refer to some special body of ICWA law. State courts are badly split on this–some use their own law in ICWA cases and some don’t. The idea of the Supreme Court taking the case is to get to some kind of uniformity. It makes no sense that some states are using their own law while other states think they cannot use their own law.

      It might be that under South Carolina law Dusten Brown would be a legal father. The facts you recite suggest that this is the case, though I think some state court held that he would not qualify. But certainly Brown can argue that he wins under either standard. This, however, is not what the Supreme Court will focus on –it will try to sort out what the right standard is. Perhaps it is a sorry commentary but the individual case often really is just a vehicle for the larger legal issue.

      • He probably would not have been found a legal father under South Carolina law, because a non-Indian father who did much more than him lost in the SC Supreme Court just a few months before this case was heard there. The case was Roe v. Reeves.

    • I have helped several vets find their lost children and what is happening to this father is a travesty of justice. The fathers I helped were not lucky enough to find out that their children existed until it was all too late. They were in Vietnam. One involved an adoption and the other involved the girlfriend getting married shortly after the birth of my friend and naming him as father on the birth record. They colluded in that effort to falsify the record and my friend’s identity it was not paternity fraud against the husband only against the child and of course the father who was getting shot at over seas.
      It’s just not right. It is also not fair that Native American children have better protection against this sort of kidnapping than all other American children. I wish this law were more broadly applied or I wish the law was that if the father does not surface to give his consent then tough luck no adoption no dice

      • You raise an interesting equal protection angle to the case. It seems pretty clear to me that ICWA means that rights are different depending on whether the parents (whatever the word turns out to mean) are tribal members or not. I think there is a justification for differential treatment–the dark history of systematically removing tribal children from their homes in an effort to destroy tribal cultures. But it will be interesting to see how the Supreme Court talks about this aspect of the case. Rebecca’s earlier comment also highlights this–a non-tribal father lost in the S.C. supreme court and this man won on what may be weaker facts.

        I think a system where adoption was impossible if the genetic father didn’t agree would be unworkable or at least undesireable. It would leave some kids with no permanant place in the world–their legal mothers would give them up but their missing genetic fathers wouldn’t take them on and they couldn’t be adopted. Perhaps it depends on how many of these cases one thinks there would be? In any event I think there is lots of middle ground–the circumstances under which an absent genetic father’s consent is uncessary could be defined more narrowly (although I’m not sure what specific content I’d support) and you could perhaps have some serious penalties for abusing the system.

        • I tentatively oppose ICWA for that very reason- law is supposed to be applied equally and not based on a person’s ethnicity. tentatively, because I don’t know all that much about it. On the other hand if the law is structured as an agreement with a sovereign tribal nation, than the discrimination doesn’t come into play because their an independent nation.
          Do you think that nowadays there is still a concern about children being deliberrately removed from native american homes as in the past? I thought that was a thing of the past. If there is still a concern, certainly extra safeguards need to be put in place. However, I don’t think its possible to redress past wrongs.

          • I oppose ICWA in general for a number of reasons and would love to see this ruling overturned (which may surprise some since I generally support biological fathers). But ultimately, I feel the rule needs to be the same for everyone whether they are married or unmarried or one race/culture or another. That fathers in the same state that have done more have lost while this father won comes across as unjust and unequal. I also have concerns about the application of ICWA in situations unrelated to this case. The number of mixed marriages and relationships keeps going up which results in a lot of kids that technically fall under ICWA (because one of their parents was registered as a tribal member as a child) but who have other cultures/heritages. If those children are primarily raised in another culture then something happens and it becomes a child welfare case (parents die or are unsafe to care for the child anymore) ICWA seems to make no provisions for placing those kids in a similar home to where they came from and would instead prefer to have them placed in a tribal home – which may be very different culturally from how their parents were raising them and is yet another thing the children would have to adapt to on top of losing their parents from death or abuse or jail or whatever the reason. I think ICWA should really be limited to trying to place kids being raised within Indian culture in a similar home should they need a new home. The whole reason this law was passed in the first place was because so many kids were being removed from their culture, yet ICWA is written in a way that pretty much demands the removal of some children from their culture they were being raised with, should something happen to their parents.

            • it’s not just about culture, its about membership

              • I understand that that is the view of the tribes, but for children whose parents have specifically chosen to raise them without tribal contact/culture or any knowledge of it, I think the children’s interests in not being totally uprooted from everything familiar should take precedence for things like testamentary guardianship, child welfare/abuse cases, etc over the tribe’s desire for more members. A lot of parents who chose to have no contact with the tribe may not realize that having been registered as a child will apply this law to their own children even if they choose not to register their children. This happened to someone I knew online – registered in the Cherokee tribe as an infant by a non custodial father she rarely saw, she was 1/256 Cherokee. Didn’t identify with the culture at all. She got pregnant at 18 and was considering adoption but only if she could have another Jewish family adopt her child (culture/religion she identified with). Tribe said no. She didn’t want her child in any other type of home and was unable to revoke her own membership in time to have her child adopted so she ended up raising the child. While it wasn’t necessarily a bad outcome as the child is older now and happy and healthy, I know this made an agonizing decision significantly harder for her. She later gave up her membership in the tribe and is so resentful to this day that she plans to teach her daughter very negative things about the tribe in hopes she never chooses to be registered so this cannot possibly affect any future children/grandchildren. I do not think this is the sort of situation or outcome the lawmakers had in mind when this law was passed. I think the intentions were good but the law was too broadly written.

        • I also agree that sometimes it is necessary not to wait for the biological father’s consent. Like if he is served a bunch of times but doesn’t bother to respond. Can’t wait around forever. But, he is entitled to some form of due process.
          It doesn’t solve the problem though, of what to do when people actively lie as to his identity or whereabout.

          • Is it the father that is entitled to the due process Ki or is it the child? I think its the child who is entitled to the due process because the child has something to loose from not having her parents provide the care – the parents don’t loose anything by not raising their bio child, the child owes them nothing at all its hard to say what it is that a bio parent has the right to from the child unless you see the child as property of the bio parent being taken and made property of the adoptive parent. The parent does owe the child something and I think the child is entitled to receive it from the bio parent so due process is for the child not the parent.

            • Wow so you think a parent whose child is wrongfully adopted when they wanted them loses nothing? The lost relationship is of no importance? The grief and agony means nothing? The emotional relationship they could have had with the child means NOTHING?

              • Rebecca – oh sure I do but I have an angle now which is that we stop with Parental rights altogether and look at what the child has a right to. You get better results approaching it that way than the other way around. When you look at the situation from the point of view of parents rights, you ask the question well what does that parent deserve? Then you ask well they deserve what they’ve earned based on the effort and time invested. Well if they have not invested any time or effort either because they did not know the child existed or because their attempts have been thwarted by either the other parent or hopeful adoptive parents or by CPS or whomever then your stymied. Your stuck because well then someone else has been putting in effort and time and what do they deserve for all that effort and time? Don’t they get something don’t they deserve something? Don’t they deserve rights to the child they put in the effort. Then a shallow play for best interests of the child will again be based upon the level of effort put in by those who had access to the child or by those with more resources. What is best for the child will certainly change depending on who has more of what. A good parent gets a lot out of doing their job of raising their child. It is emotionally rewarding. A good parent is also deeply wounded and heartbroken at the thought of never being allowed to do those things for their child, never being allowed the opportunity to have put forth the effort that others say would earn them the right to their child but really they are upset that their child is not receiving what they deserve from them and their own family.
                If you look at it from what does the child have a right to the child has a right to her own damn father and anyone that gets in the way of that is f’g with her rights. Its just a shorter path to the same destination Rebecca. Less messy less opportunity for vulchers.

        • Because I think I favor changes in adoption that would require the relinquishing parents to retain some responsibility certainly for being parents of medical record and for never terminating the legal kinship relationships for them to the child or their family members I think it could work to where the adopting party understood that if the father were ever to surface that he’d still have to fulfill his obligations to the child which would include some measure of support and contact or possibly shared contact depending upon the circumstances. The adoptive couple would retain authority over the child as long as he never surfaced and never contested. It would be enough for most adopters to move forward but would not terminate the child’s right to death benefits or support or to legal recognition as a family member should they ever figure out who their father is or was and be able to prove it through dna testing because siblings and cousins are locating eachother on ftdna and dsr and they should be treated as legal kin.

  5. But then you have the issue of but for bio mother’s lies, the child would never have been taken to SC. And ICWA states and Indian child is any child eligible for enrollment and the biological child of an enrolled member. That alone would seem to qualify him as her parent. It all gets so complex.

    • It is often difficult to separate the disputed facts from the legal issue. But my hunch is that the Court will want to avoid the disupted facts and thus will go with the facts as summarized in the South Carolina opinion. They are pretty complicated as it is. http://www2.bloomberglaw.com/public/document/Couple_v_Baby_Girl_Opinion_No_27148_2012_BL_192980_SC_July_26_201
      In the past there have been occasions where the US Supreme Court has taken a family law case possibly in the hopes of setting some broad new law and then ended up getting quite tangled in the facts. This could turn out to be another one of those cases. They often turn out not to do too much good in terms of clarifying the law.

      • I think I read that the child has been living with her bio father- and big sister- already for quite some time now. So if the adoptive parents want to make the claim- whether legally or whether to garner sympathy- based on their having bonded with the child, their point is really irrelevant by now.
        Also, here is where law and ethics sometimes part company. Law by and large is based on cut and dry categories, the question would be, what the adoption valid or not? If yes, the adoptive parents have the full status of parent with all the accordant rights and responsibility.
        But on an ethical level, I think a non-biological parent no matter what their legal status. if their relationship with the kid ended with the kid being basically too young to remember- it is their responsiblity to overcome their feelings and step out of the picture once the kid is with their biological family. They need to grieve their loss for sure, but the kid is not suffering a loss and by trying to fill their loss th ey will just cause another loss for the kid.

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