Lessons on Adoption from the Supreme Court

From Adoptions Together's Blog:  Dawn Musgrave, Associate Director/General Counsel, Adoptions Together, Inc. Click here for original post.

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.

Birth Mother Expenses

In most states, the payment of expenses to a birth mother making an adoption plan is a common practice.  

We began to hear of more and more local birth moms who chose to be matched out of state because of the possibilities of paid expenses.  These moms would sometimes not be able to have a counselor, or appropriate representation in the case and we wanted Maryland to be on the same level as other states so that moms are pushed away from local adoptive parents!

More and more agencies and states are paying for the housing, food, clothing, etc. of birth mothers in the midst of an adoption plan. Well in Maryland, this was illegal up until very recently. Maryland is one of
only three states
that restrict payment of adoption-related expenses for birth parents to only
medical and legal costs. 


 We were so happy to discover that the bill had been approved by the Senate and House of Representatives of the Maryland General Assembly and now we're awaiting the Governor's signature!

I was very fortunate to be able to testify about my opinions and experiences on this bill in front of the judicial committee of the Maryland House of Delegates. House Bill 563 was a collaboration of Delegate DuMais and adoption agencies, birth parents, and adoptive parents.

Here is a video of our testimony starting at 5:35 (Maryland House Judicial Committee Testimony Video)

Here is my written testimony submitted to the Maryland House and Senate Judicial Committees!

When posed with
the question of whether receiving financial assistance would be helpful to the
expecting mothers I serve, the answer is undoubtedly, yes.   Every expecting birth parent that crosses my
path struggles in some way.  Most of my
clients are either unemployed or working only part-time and in positions that
cause them to struggle even while employed. 
Many clients are living with family or with extended family, or renting
rooms in a household.  Some are living in
homeless shelters and recently, within the cold winter months, even the shelter
programs are full with many month long waiting lists.  Finding housing and food assistance for my
clients has always been a struggle with the limited resources in the area.  They often feel the stress of burdening a
family member they are living with or living in an uncomfortable environment
while pregnant.   Some mothers are only
allowed to live with family because they are pregnant but have to leave soon
after delivery and feel the anxiety of the approaching deadline daily.  Many have come to know that finding a job
while visibly pregnant is almost impossible in this area.  There are also those who are employed, but
must hide the fact that they are pregnant, if possible, to avoid termination.  These women and their families have a clear
and basic need for financial assistance.


To some,
purchasing maternity clothing may not be a necessity, and a mother may even
agree when faced with the decision to purchase food and pay rent, but to any
woman who has been pregnant, the need becomes clear.  Many clients could benefit from properly
fitting maternity clothing as pregnant women expand in clothing size and shoe
size.  I’ve come across clients who wear
the same ill fitting clothing, coats that no longer close and shirts and pants
that are uncomfortable to wear because as stated earlier, sheltering and feeding
herself and her family comes first.


In addition to the
women who struggle the most visibly there are expectant moms that cross my path
who could benefit from the assistance that a little extra income could
provide.  Clients who are able to
maintain employment often still need all the help they can get.  Many are struggling to pay rent and all the
other necessities of life and would welcome assistance with open arms.   Regarding the mothers who are currently
working, some do not take one day off from work during their pregnancy for fear
of losing their jobs.  Other mothers
leave the hospital and return to work the day after delivery, against the
medical advice of the physician, because they simply cannot miss a day of work
and risk unemployment.   If pregnant women are instructed to stop
working by a physician, this bill would allow for those moms to stop working
and tend to their physical needs, something that is often not possible for
them.  For the moms that do stop working,
they are in great need of help paying bills. 
If these women were able to receive even just a small amount of financial
assistance to assist in paying rent or obtaining food or purchasing maternity
items, they would possibly be able to relax and gain a bit more peace of mind
during the pregnancy.  As stressful as it
is to carry an unplanned pregnancy and be in the process of making an adoption
plan, any relief of that stress would be greatly beneficial.

We would love to hear about your story and whether adoption expenses were helpful or would have been helpful during your adoption planning time.

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