Adoptive Couple v. Baby Girl in the Supreme Court NOW

My apologies for neglecting all the comments on the last post.  It’s the travel thing this time.  I’ll do my best to catch up.  But I also wanted to pick up and what may prove to be a very important argument (or not-it is always hard to tell in advance.)  Today–right now–the Supreme Court hears argument in Adoptive Couple vs. Baby Girl.   There’s an excellent pre-argument summary here and I’ve written about the case before, too.   Indeed, I had picked up on this case when the previous opinion (from the South Carolina Supreme Court) was issued.

As the pre-argument discussion I linked to makes clear, there are a number of issues here and lots of directions that the Court could choose to take.  This is why it is hard to say whether it will (in retrospect) turn out to be an important case.    It’s also a feature that makes me worry–not so much that the Court will do the wrong thing (though of course that is possible) but that the Court will do not appreciate the complexity and range of issues before it and will therefore unsettle the law in areas beyond what is before the Court.

Perhaps this last concern sounds strange–this is the US Supreme Court, after all and one might assume that they are wise and competent.  But the truth is, many very fine federal judges (and many very fine federal judge’s law clerks) don’t have much exposure to/experience with family law.     Family law is generally committed to the state courts and, even there, often is lower status law.  (I suppose this is because there isn’t always money at stake and hence, not a lot of money to be earned?)   In any event, the Supreme Court’s forays into family law are infrequent and some of the recent ones (Troxel, I’m thinking) suggest to me a lack of clarity about what’s going on.

One clearly complicating issue in this case is the passage of time problem.   I’ve written about this a bunch of times in different contexts, but it isn’t always easy to find the posts.  Some are here.   The young girl in this case was adopted at birth–and thus never knew her genetic father.   She lived with the adoptive parents (who by all accounts were fine parents) for the first period of her life–I think it was over two years by the time all is said and done.   And that’s because the litigation took time to wend its way through the courts and, of course, she had to live somewhere during that time.

When the adoptive parents lost in the South Carolina Supreme Court the girl moved to live with her genetic father–who she had, up till that point, never known.   And she’s been living there (with no contact with the former adoptive parents) since December 2011–well over a year now.

I’m quite sure that no one will be arguing that switching custody back and forth like this is good for a child.   This might seem like a strong argument for leaving the child right where she is now–with the genetic father.  And it actually might be a good argument if all you want to do I what is best for this one girl.

The problem is that the US Supreme Court did not take this case to decide what was best for one girl.   That’s just not how they operate.  It took the case to clarify some important issues of law.   The core legal questions are about how ICWA (the Indian Child Welfare Act) fits in with state laws governing the rights of unmarried men who father children.   Resolving them may depend on cool and bloodless doctrines like statutory interpretation.    Proper analysis of these issues does not include any particular consideration what is best for this child.   What I mean is that if the Supreme Court of South Carolina misinterpreted the law, then the decision ought to be reversed—and the fact that this means moving the child again shouldn’t matter to the outcome of the case.

But can it not matter?  Really?   It’s asking a lot to say that it will not matter at all to any of the justices.   (I’m very curious to see if this question–of the particular child–comes up in argument.   I’ll let you know if it does tomorrow.)

That’s just one small sliver of what might make this a tough case.   There’s a larger issue, too–in general the treatment of the Native American tribes in the US Courts (and more generally in law) has been less than favorable.   Indeed, I saw a quote yesterday suggesting that the tribes do even worse than prisoners–also not a favored group.   One might be moved to correct for past wrongs by a more generous attitude here–but is that what courts should do?  And at the same time one worries about perpetuation of past mistreatment.

All stuff to look for in the argument.   Might be over by now, but reports will trickle out.  I’ll write about it tomorrow.


23 responses to “Adoptive Couple v. Baby Girl in the Supreme Court NOW

  1. I read part of the brief submitted by the American Bar Association which supports the father, and clearly defines how he met the requirements to be granted rights as a father. It was interesting and perhaps the least likely to be biased either way.

    Another point is that I saw recently that Washington state has written into the adoption act, the distinct difference in relinquishment times for an First Nation child. To me that makes sense – include the requirements into the act so there is no confusion. Note I did not look at how father’s rights were written.

    I do understand the concern that the Supreme Court may not understand all the nuances in family law or adoption. And, unless the ruling upholds ICWA as it is and provides instructions to the states on when it comes into play and how it trumps state laws – the impact on the child of another move could be very harmful.

  2. I think it would be bad to move the child again, but I don’t like that the rules are different for unmarried fathers based on their heritage, and I don’t like ICWA as written for other reasons as well, because of how it applies to adoptions that are voluntary by both parents, and it seems to demand an Indian home for a mixed race child, even if that mixed raced child is an older foster child whose parents specifically chose to raise them in another culture up until that point. Two wrongs don’t make a right.

    • Arent indian tribes semi autonomous entities? if so i dontsee a problem woth having different law for pwrsons undet a separaye jurisdiction.

      • I would tend to agree if it’s a case of parents who are both domiciled on the reservation and thus under exclusive tribal jurisdiction, but the mother here was non-Indian US citizen, the child is mixed race and US citizen, and the father was a tribal member who didn’t live on tribal lands. Under this interpretation a father can basically pull a bait and switch and end up with full custody while the mother who gave up a child solely because the father abandoned them is left with nothing. The father was apparently fine allowing the mother to raise the child, who would presumably be raised Hispanic, and never see her again as long as he didn’t have to pay child support, but once the mother couldn’t handle that he’s suddenly concerned about her? Where was his concern months earlier? Maybe if he hadn’t said what he said or did what he did she would have kept the child and this all could have been avoided. But he shouldn’t get a do-over on a child he showed no interest in for months past the birth if other men don’t have that right too. But because he’s given special rights he gets a child he basically abandoned while non-Indian fathers who fought before their child was even born, who NEVER wavered in wanting that child, are left with nothing.

      • Man F that K is the child an American citizen or not? All U.S. Citizens heck all people should have the same damn rights and responsibilities. Foolishness that ones race or physical location – stuff that is total luck of the draw- would have any bearing on their basic rights and responsibilities as an individual or member of the global community.

        • Well, I wouldn’t commend the father too much for taking care of his responsibilities now – because to this day, which was restated in a recent statement from him in a Washington Post article, he maintains that he only had an obligation to take care of the child since the mother decided to give her up.


        • Oh, and he’s also told the girl her stepmother is her mother – which is going to be confusing someday when she runs into her mother who lives IN THE SAME TOWN!

        • It’s been a long time since I’ve read through the comments, for which I apologize. I think this one is across whatever imaginary line there is that I draw. The relationships between the tribes and our federal government is, to say the list, complicated. Our history–by which I mean primarily the US history shaped by white settlers–is far less than admirable. Given that I’d like to suggest a more thoughtful and respectful attitude (at least) is warranted. I’m not looking for agreement but rather for mutual respect.

  3. ICWA requires tribal approval for the adoption – non-tribal adoptions happens more often than you think when the lawyers do their job correctly and request approval from the tribe. Yes, it’s more hoops but they are known hoops, and that is how lawyers earn their fees is by understanding the law and following it. That’s why there are quad A Adoption Attorneys.

    In this case the lawyers didn’t do their job correctly – this is the result – if done correctly, the adoption wouldn’t have been allowed to reach state court because the father had rights under ICWA and asserted them.

    • See, my problem isn’t, in itself, the the child is being raised by a biological father rather than an adoptive family. After all, I generally support that.

      It’s that he can act like he doesn’t want the child, not do anything to legally establish paternity in any state for 4 months – he’s going off to war, he would have ensured benefits for the child had he died, but he was apparently more concerned about making sure he didn’t have to pay child support. And after all that, he gets a do-over and is rewarded with sole parental rights to a child he acted like he going to abandon and did in fact abandon for a few months. While I do not know the mother or anyone involved personally, what appears to be non disputed is that she was a single mother already, with two kids from previous relationship(s) and was struggling financially. That seems to indicate that she doesn’t make much money, and was either not getting support from the other father(s) or they could not afford to pay very much. It therefore stands to reason that she feared adding another child without adding any financial support would perhaps make it impossible to support any of them. So it seems likely that the words and actions of the father, and his subsequent disappearing act, played a part in her decision to sign away her rights. A father should not be rewarded for playing bait and switch like that. If he gets rights after claiming complete disinterest in the child for months, the mother should get hers back, too.

  4. Rebecca – while the facts as you laid out might be, probably are the reality – the alternate reality is also that this was an engaged couple, apparently engaged prior to conception, and she is the one who broke it off. From the transcript if they married, the father could have put them on his health insurance and perhaps he would have qualified for more pay so he was willing to support her – but she chose to break it off. Relationships are messy at the best of times – break-ups are even more complicated and feelings run high. Not saying he did it right, but human beings are capable of showing their worst side when hurt, and who knows how she acted either and how that played into it. So, after the birth and his acknowledged paternity she would have been supported by the father through child support and he was obviously working and recieving a regular paycheck.

    • I’m just tired of the people putting this biological father up on a pedestal while determined to paint the mother as a complete villain who did the whole thing out of malice and nothing more. This was a bad breakup and the father continues to admit (he even had a recent quote in an article, I think Washington Post?) that he didn’t feel an obligation as long as he believed the mother had her. To me it seems a terribly unjust world that this guy has full custody because of ICWA while someone like John Wyatt who always made it clear he wanted his child and filed for custody very early (less than a week after a birth that had been hidden from him) will probably never even get to meet his child, ever.

  5. Somehow you seem to avoid the truth to the ciaos. You fail to repot the mother and the adoptive couple concealed the baby’s heritage.

    This proves they knew the father has his rights to the child but the mother and adoptive couple took it upon themselves to keep the baby girl at any means. Their means is to lie about the heritage of the child.

    If they openly admitted the baby girls’ heritage then the father could be at labeled as neglecting his fatherly duties.

    Put your racism aside and look at the law. The Indian Child Welfare Law that is upheld by the state government and the federal government.

    INM — ESC Idle No More

    • The baby was listed as Hispanic/Native American/Caucasian on the paperwork. I don’t see how that is concealing the child’s heritage, all three were listed. Does the father being Native American mean the child got no heritage at all from the Hispanic/Caucasian mother?

    • Oh Sablan don’t even go there. Not everyone who disagrees with you is a racist.

  6. Actually Rebecca – on the ICPC (?) paperwork to take the baby out of state they listed her race as Hispanic. Up until that point the mother had told the PAPs, the Agency, and her lawyer that the baby was First Nations. Her lawyer was the one who in Aug 2009 wrote to the Cherokee Nation – but spelled the fathers name wrong, and his D.O.B. wrong, so they responded that they could not find his membership – but if the information provided was incorrect that their response would not bear weight (not their words). She also had a no-advisory status at the hospital so the father wouldn’t have been able to find out she was there. (according to the State Supreme Court transcript).

    Far too many troubling aspects in the case – but the ICPC (?) paperwork listing the baby as Hispanic and the incorrect spelling and D.O.B. submission are just wrong. I am questioning why her lawyer did the paperwork vs the Agency as well – doesn’t sound right at all. Following proceedures, and providing accurate information – should not be difficult for people who profess to do that for a living.

    • I am going to see if I can find the document or court ruling I read that in again – I know there was some kind of paperwork that listed all three, I will check again which paperwork that was.

  7. Rebecca – please re-read my comment – it was at the point of the paperwork to permit the transfer across state lines (which can cause an adoption to fail if not done correctly so that both the sending and receiving states approve the transfer) that ICPC paperwork the baby was listed as Hispanic.

    From the transcript:

    “Appellants 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 Baby Girl from that state. Mother signed the necessary documentation, which reported Baby Girl’s ethnicity as “Hispanic” instead of “Native American.” After Baby Girl was discharged from the hospital, Appellants remained in Oklahoma with Baby Girl for approximately eight days until they received ICPC approval, at which point they took Baby Girl to South Carolina. According to the testimony of Tiffany Dunaway, a Child Welfare Specialist with the Cherokee Nation, had the Cherokee Nation known about Baby Girl’s Native American heritage, Appellants would not have been able to remove Baby Girl from Oklahoma.8″

  8. This is what I was thinking of, I think:

    “IOn September 16, 2009, Mother executed an Inter-state Compact Placement Request form pursuant to the Interstate Compact on the Placement of Children (ICPC), Okla. Stat. tit. 10, § 577, which governs interstate adoption placements. Mother identified Father by name as Baby Girl’s biological parent. JA 28. In the box titled “Ethnic Group,” Baby Girl’s eth-nicity was reported as “Caucasian/Native American Indian/Hispanic,” and Hispanic was circled by hand. Id. Oklahoma’s ICPC administrator reviewed and signed the form on September 18, 2009, and South Carolina’s ICPC administrator counter-signed the form on September 21, 2009, authorizing the inter-state placement with Adoptive Parents. Id.; see id. 29 (final approval); Okla. Stat. tit. 10, § 577, art. V.”

  9. Interesting Rebecca – what brief/opinion did that come from because that is not what the SC Supreme Court Opinion that I posted directly above states.

  10. Ethnicity, Sovereignty, Blood Quota. Only reason for 1/4 blood quota is so the United States Government would not give the beloved commodities to the wrong people and to not educate the less then 1/4 bloods. Sovereignty, ethnicity, blood quota will always be an issue, idea. We are humans! What ever happens we feel sad for her. She’s famous now! Or infamous! Too young to remember. May the Great Spirit protect her. Yakama, full blood.

  11. I’ve had a chance to read through these comments and there’s much to talk about. I’ve also just been to a couple of conferences where the Adoptive Couple case was widely discussed by a whole range of people. None of this makes the case easier for me. I don’t know if I have enough to say to add another main post, but I did want to add a comment.

    Part of what makes this hard for me in particular is this. On the one hand, I respect the right of the tribes to define themselves. This, it seems to me, is a crucial and necessary element of sovereignty. Most (but I think not all) of the tribes define themselves by quantum of blood–so if you are this much Cherokee or whatever the relevant tribe is. (There may be additional requirements besides blood.)

    But there’s that other hand—I (for one) do not like defining parenthood solely by blood. I don’t think the man who sleeps with a woman and takes off, never to be seen again, should have any particular parental rights.

    You can probably see the dilemma–if that man happened to be a tribal member with double the appropriate blood quantum or more, then the child may very well be an indian child as the tribe defines it–and I agree that the tribe does get to define it. Yet I don’t want the man to have parental rights. A woman who gets pregnant with a man who has that amount of tribal blood is in a different position from a woman who gets pregnant with a man who does not. These tensions make the issues hard for me to resolve.

    • While I would give more rights to biological fathers compared to you, I still feel this father did too little too late, and I really feel everyone should be treated the same. I think before ICWA tribes had too little rights, and now they have too many – from one extreme to another. The only part of ICWA I really agree with is the part about children living on tribal lands.

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