When the adoption of an Indian child is voluntarily and lawfully initiated by a non-Indian parent with sole custodial rights, the Indian Child Welfare Act of 1978’s, 25 U.S.C.S. §§ 1901- 1963, primary goal of preventing the unwarranted removal of Indian children and the dissolution of Indian families is not implicated.
Birth Mother (who was predominantly Hispanic) and Biological Father (who was a member of the Cherokee Nation) became engaged in December 2008. One month later, Birth Mother informed Biological Father--who lived about four hours away--that she was pregnant. After learning of the pregnancy, Biological Father asked Birth Mother to move up the date of the wedding. He also refused to provide any financial support until after the two had married. The couple’s relationship deteriorated and Birth Mother broke off the engagement in May 2009. In June, Birth Mother sent Biological Father a text message asking if he would rather pay child support or relinquish his parental rights. Biological Father responded via text message that he relinquished his rights. Birth Mother then decided to put Baby Girl up for adoption. Because Birth Mother believed that Biological Father had Cherokee Indian heritage, her attorney contacted the Cherokee Nation to determine whether Biological Father was formally enrolled. The inquiry letter misspelled Biological Father’s first name and incorrectly stated his birthday, and the Cherokee Nation responded that, based on the information provided, it could not verify Biological Father’s membership in the tribal records. Working through a private adoption agency, Birth Mother selected Adoptive Couple, non-Indians living in South Carolina, to adopt Baby Girl. Adoptive Couple supported Birth Mother both emotionally and financially throughout her pregnancy. Adoptive Couple was present at Baby Girl’s birth in Oklahoma on September 15, 2009, and Adoptive Father even cut the umbilical cord. The next morning, Birth Mother signed forms relinquishing her parental rights and consenting to the adoption. Adoptive Couple initiated adoption proceedings in South Carolina a few days later, and returned there with Baby Girl. After returning to South Carolina, Adoptive Couple allowed Birth Mother to visit and communicate with Baby Girl. Approximately four months after Baby Girl’s birth, Adoptive Couple served Biological Father with notice of the pending adoption. (This was the first notification that they had provided to Biological Father regarding the adoption proceeding). Biological Father signed papers stating that he accepted service and that he was “not contesting the adoption.” But Biological Father later testified that, at the time he signed the papers, he thought that he was relinquishing his rights to Birth Mother, not to Adoptive Couple. Biological Father contacted a lawyer the day after signing the papers, and subsequently requested a stay of the adoption proceedings. In the adoption proceedings, Biological Father sought custody and stated that he did not consent to Baby Girl’s adoption. A trial took place in the South Carolina Family Court in September 2011, by which time Baby Girl was two years old. The Family Court concluded that Adoptive Couple had not carried the heightened burden under §1912(f) of proving that Baby Girl would suffer serious emotional or physical damage if Biological Father had custody. The Family Court therefore denied Adoptive Couple’s petition for adoption and awarded custody to Biological Father. The South Carolina Supreme Court affirmed the Family Court’s denial of the adoption and the award of custody to Biological Father.
Should the award of custody to Biological Father be upheld?
The court reversed the judgment of the South Carolina Supreme Court and remanded the case for further proceedings. The Supreme Court held that the phrase “continued custody” in 25 U.S.C.S. § 1912(f) referred to custody that a parent already had and did not apply where the Indian parent never had custody. This interpretation comported with the statutory text and the ICWA purpose to counteract the unwarranted removal of Indian children; when an Indian child’s adoption was voluntarily and lawfully initiated by a non-Indian parent with sole custodial rights, the ICWA’s primary goal was not implicated. Similarly, § 1912(d) applied only where an Indian family’s “breakup” would be precipitated by the termination of the parent’s rights; when an Indian parent abandoned an Indian child prior to birth and never had custody, there was no relationship that would be discontinued, and § 1912(d) was inapplicable. The 25 U.S.C.S. § 1915(a) adoption preferences were not implicated because the father did not seek to adopt the child, but argued that his parental rights should not have been terminated.