By: Molly McDonough
Blog Category: Racial Implications of Recent Supreme Court Decisions
On June 25, 2013, the Supreme Court of the United States issued a 5-4 decision in Adoptive Couple v. Baby Girl. In this case, Biological Father, a member of the Cherokee Nation, informed Birth Mother that he would agree to relinquish his parental rights. Birth Mother put Baby Girl, 1.2 percent Indian, up for adoption and selected Adoptive Couple, a non-Indian couple. During the adoption proceedings, Biological Father sought custody and stated he did not consent to the adoption.
Under the Indian Child Welfare Act (ICWA), Indian parent’s rights were not to be terminated, but in the event their parental rights were terminated, the adoption placement preferences would apply. These preferences require Indian children to be placed with family, tribal members, or another Indian family before other possible placement. The Supreme Court held that ICWA does not apply where the Indian parent never had custody of the child. In this case, Biological Father should not have been able to invoke the ICWA because he had never had custody of the Baby Girl. The Court also ruled that the adoption placement preferences are inapplicable in cases where no alternative party has sought to adopt the child. In this case, Baby Girl’s paternal grandparents or other members of the Cherokee Nation never filed for adoption. The Court reversed and remanded the case back to the lower courts to determine Baby Girl’s placement using state law and the Supreme Court’s interpretation of ICWA.
On July 8, 2013, Biological Father’s stepmother and Baby Girl’s paternal grandparents filed to adopt Baby Girl. Now, the lower courts will be faced with the issue of whether the ICWA is inapplicable when there is no alternative party who has formally sought to adopt the child before the commencement of the alternative adoption proceedings or if the ICWA can become applicable during any point of the proceedings. Since there is now a placement preference for Baby Girl, it seems likely that she may have to leave the custody of Adoptive Couple to be placed with the Cherokee Nation.
The opinions expressed herein are strictly those of the author and do not necessarily reflect the opinions of the Widener Journal of Law, Economics & Race.
Adoptive Couple v. Baby Girl, No. 12-399, 2013 U.S. LEXIS 4916 (2013).
Adoptive Couple v. Baby Girl: Information and Resources, National Indian Child Welfare Association (2013), available at http://www.nicwa.org/BabyVeronica/.