Dawn Musgrave, Associate Director/General Counsel
The Supreme Court decision released recently interpreting the Indian Child Welfare Act (ICWA) is too complex to synthesize in just a few paragraphs. (For the full opinion see, Adoptive Couple v. Baby Girl, http://www.supremecourt.gov/opinions/12pdf/12-399_8mj8.pdf). It’s hard to see who the winners are in this case, too. Certainly, the child who is at the center of this controversy has already suffered and will continue to do so. When she was 2 years old, she was removed from her adoptive parents and placed with her biological father whom she had never met. Now, she will almost certainly be removed from her father and returned to her adoptive family, facing yet another loss that cannot possibly be understood by any 3 ½ year old.
Based on the facts recounted by the Court, it’s easy to sympathize with all of the adults involved in this case as well. The child’s mother, facing the disintegration of her relationship with her unborn child’s father, turned to adoption as the best option to give her baby a good life. By all accounts, the adoptive parents acted responsibly and worked with professionals to ensure that the adoption was completed properly, including a good faith, albeit flawed, attempt to comply with the requirements of ICWA. And the child’s father seems equally motivated by a genuine desire to raise his child.
Faced with a choice rivaling that of King Solomon, the Supreme Court in a closely divided opinion overturned the decisions of the South Carolina courts, holding that their reliance on ICWA was incorrect. In justifying this result, the Court greatly eroded the applicability of ICWA in voluntary infant adoption cases. Simply put, the Court ruled that ICWA applied only to the break-up of an existing custodial relationship between an Indian child and his Indian parent. Given that the father of this child had never held custody of the child before the state court’s decision to follow ICWA, the court determined that ICWA did not apply.
The opinion raises many questions that still need to be answered. For example, in determining that the father did not have custody of the child, the court relied on statutes in South Carolina and Oklahoma that give a presumption of custody to an unmarried mother. Many states’ laws are silent about presumptions of child custody when parents are unmarried. Other states have laws that presume both parents are equally entitled to custody of a child. Would the result in this case be different had the father resided in a state where the law favored joint custody?
Further, the majority seems bothered by the minimal blood connection of this child to her Indian heritage. In the first sentence of the decision, Justice Alito writes, “This case is about a little girl (Baby Girl) who is classified as Indian because she is 1.2% (3/256) Cherokee,” and subsequently makes 3 more references to the 3/256 blood line. Would the case have been decided differently if the child were 50% Cherokee? Did the Court make its far-reaching decision limiting the applicability of ICWA because it believed the connection of the child to her Indian heritage was too tenuous?
Another question is whether this case signals the weakening of long-settled case law about the rights of biological parents to raise their children. In a series of Supreme Court decisions from the early 1980’s, the Court recognized that the interest of parents in raising their children is precious, and that there must be a significant State interest at stake before a court may interfere with such a cherished bond. Justice Sotomayor, writing for the dissent, and Justice Breyer, in a separate opinion that while supporting the result reached by the majority questioned its analysis, both challenged the breadth of the majority opinion. For example, should ICWA apply in a case where a father was obstructed from involvement with his child because he was falsely told the pregnancy ended in miscarriage or abortion?
And, what should a Court do when faced with deciding the fate of a child whose adoption is contested? It’s easy to spout rhetoric about the best interest of the child in cases like this, but what does that really mean? Can any judge truly predict whether it is better for a child to be raised by an adoptive family who will love, cherish and provide the child with stability and resources that are lacking in many birth parents’ lives or whether the child will thrive and grow stronger in his biological family where he will likely have more challenges and thus more opportunities to learn the importance of perseverance and overcoming obstacles?
Hopefully, these questions and others will be addressed by courts across the country in the years to come. Yet, there is one clear lesson to take home from this complicated and difficult case. Let there be no doubt… adoption is complicated. All parents, biological and adoptive, need to be fully informed about their rights and responsibilities when making an adoption plan. Qualified caring professionals need to help all parties reach agreement in planning an adoption. When disputes arise and agreement is not possible, all of the adults who care about the child must be willing to put the child’s interests above their own desires.
How do we do this? We, adoption agencies and professionals, prospective adoptive parents and parents who are contemplating placing a child for adoption, must take the time to carefully consider what we will do in contested adoption situations before they occur. We must decide, as individuals and organizations, the point at which we will bow out of a contested case and spare an innocent child the risk of additional grief and loss that will result from another forced disrupted placement. Adoption agencies and professionals must make these decisions within the context of the codes of ethics and legal regulations that govern our practice. And, we need to raise these issues with parents and prospective parents who seek our help. Waiting to consider these questions when our judgment is clouded by the joy of holding a baby in our arms or with the pain of relinquishment will only cause further harm to the children we seek to protect.
As adopted children move toward adulthood, most seek to learn more about their biological families and many chose to establish ongoing relationship with the birth relatives. In deciding which contested adoption situations require aggressive advocacy and which are best served by compromise and concession, we must recognize that someday we will likely have to explain to an adult adoptee how he came to be part of his adoptive family. The actions we take today when our children are young may well look quite different in 20 years when we explain them to an adopted adult who is seeking to create a meaningful relationship with his biological family.