SCOTUS Rules on ICWA

The Supreme Court issued a ruling yesterday in regards to adoption. The case before them involved a 3 year old girl, Veronica, who was adopted at birth by a couple in South Carolina. The biological parents were unmarried. Some media sources say the biological mother kept the biological father away during the pregnancy and did not let him become involved. Other media sources say the biological father had conflict with the biological mother and cut off contact with her, not supporting her during her pregnancy.

Either way, the biological father texted the biological mother early in the pregnancy saying he wouldn't support her. He signed a legal document prior to the birth stating he did not want to exercise his parental rights and did not provide support to the biological mother during her pregnancy (for those not versed in parental rights... many to most states use lack of support during pregnancy as a criteria to terminate parental rights... so this is a big deal). When Veronica was born, she was placed with the adoptive couple, as her biological mother planned.

Adoption doesn't finalize as soon as the baby is placed with the adoptive family. There is some lag, usually several months, before it can be finalized in court. When Veronica was 4 months old, the biological father was served with adoption paperwork. He did not want the adoption to occur. Since he is 2% Cherokee (and Veronica is 1% Cherokee), he was able to use the ICWA to fight the adoption in court. The proceedings drug on for months. When Veronica was 27 months, the state court decided due to the ICWA, the biological father was the rightful custodian. Veronica moved from her adoptive parents in South Carolina to her biological father in Oklahoma.

The adoptive parents filed an appeal that went all the way to the US Supreme Court (normally family/custody cases do not go to them, but since the issue was regarding a federal law, they agreed to hear it). A year and half went by, and a ruling was issued yesterday.

The Supreme Court said that since the biological father never established custody (he was not married to the biological mother, did not support her during her pregnancy, and signed paperwork saying he did not want parental rights) that the ICWA did not apply in his case. The ruling said the case should go back to the state court for additional proceedings (presumably, adoption finalization by the adoptive couple).

An excerpt from the ruling: "As the State Supreme Court read [the Indian Child Welfare Act], a biological [American] Indian father could abandon his child in utero and refuse any support for the birth mother — perhaps contributing to the mother's decision to put the child up for adoption — and then could play his ICWA trump card at the eleventh hour to override the mother's decision and the child's best interests. If this were possible, many prospective adoptive parents would surely pause before adopting any child who might possibly qualify as an Indian under the ICWA."

An excerpt from a news article explaining implications of the ICWA law the way it was used in this case: "The case also is about the autonomy of a non-Indian mother. The birth mother's lawyer, Lori Alvino McGill, contends that if Indian fathers can sweep in this way, based only on biology, and override the birth mother's decision, why couldn't sperm donors or rapists who are Indian do the same? 'No other set of men can choose to kind of sit back, renounce all responsibility but hold a back-pocket veto to an adoption choice,' she says." 

I think the court made the right decision. Adoption can have sketchy practices in regards to birth fathers. Some agencies do not make diligent efforts to locate biological fathers. Others bring birth mothers to deliver in certain states because they know it will be easier to evade the man's ability to assert his parental rights. I am firmly against any such practice. However, I also do not think it is fair for a father to bring life to a child but refuse to support the child during the pregnancy, no matter their relationship with the mother (I feel this way about pregnancies, no matter whether they lead to adoption or not).

My final thought is how I hope Veronica can be resilient with the tumultuous four short years she has already had. She has lived in two states with two different sets of caregivers. The first time she moved (from adoptive family to biological father), the "transition" was pitiful. Some adults totally uneducated in child development decided she should be given from adoptive parents to biological father at a office building. She had never met her biological father, but she was dropped off and remained with him. She drove all the way from South Carolina to Oklahoma with her blood family but virtual strangers. She had no contact with her adoptive family after that day. It's really sad to me that so many adults could not come together for what would obviously be best for the child. Hopefully there will be a more thoughtful plan this time. I hope she can have a therapeutic transition and can maintain contact with her biological father and his family. Only time will tell.