Earlier this year, I was listening to a podcast called Radio Lab that told the story of a girl that was to be adopted by a couple in South Carolina. The biological mother and father’s relationship had deteriorated before the girl was born and they ultimately broke off their wedding and separated. The mother told the father that he could either pay child support or relinquish his rights. The father signed his rights away and he provided no financial assistance to the birth mother for the duration of the pregnancy and through the first four months after the girl’s birth.
When the girl was four months old, the adoptive couple provided the father with notice of the pending adoption and the father stated that he did not consent to the adoption. The father told the court that he thought was signing his rights away to the birth mother, not the adoptive couple. The main issue in the case, however, was that the father and the girl were part Cherokee. The birth mother was not Indian.
The Indian Child Welfare Act of 1978 (ICWA) was passed to “address the consequences of the abusive child welfare practices that separated Indian children from their families and tribes through adoption or foster care placement, usually non-Indian homes.” ICWA makes it more difficult to take Indian children away from their families and also gives placement preferences to members of the child’s extended family, other member’s of the Indian child’s tribe, and other Indian families.
The girl was 1.2% (3/256) Cherokee and the South Carolina Supreme Court found that certain provisions of the ICWA applied. The adoptive parents were ordered to give the child over to the father at the age of 27 months. The U.S. Supreme Court took up the case on appeal.
The Supreme Court ultimately found in favor of the adoptive parents because the provisions that the father argued did not apply. ICWA said that “no termination of parental rights may be ordered in the absence of a determination that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child.” In a nutshell, the court said that since the father never had custody of the child (nor prior contact), the continued custody portion of the provision would not apply. Also, since nobody from the extended family or Indian tribe attempted to adopt the child, the adoptive couple was able to take custody of the child.