High Court Sides With Girl’s Adoptive Parents

CHARLESTON, S.C. (CN) - The Indian Child Welfare Act does not require that a Cherokee child be taken from her adoptive family and given to a father she never knew, a divided Supreme Court ruled Tuesday.

Writing for the 5-4 majority, Justice Samuel Alito said the federal law, invoked by the girl's biological father, "does not apply when, as here, the relevant parent never had custody of the child."

The biological mother and father of the Cherokee girl were engaged when the mother discovered she was pregnant. The father then pressured the expectant mother to move up the wedding, and when she refused, he refused to provide any financial support until after they had married. The birth mother broke off the engagement in May 2009 and soon found herself in financial straits.

After an exchange of text messages in which the father allegedly said he'd rather give up his parental rights than pay child support, the birth mother put the baby girl up for adoption, ultimately choosing to place her with a South Carolina couple because of their marital stability. She remained with them for a little over two years.

When the birth mother's attorneys notified the biological father about the pending adoption, he refused to consent and sought custody of the child.

State courts awarded custody of the girl to her biological father, concluding that he was a "parent" under the Indian Child Welfare Act, or ICWA, because his daughter was 1.2 percent (3/256) Cherokee. The law specifies that native children be adopted by other members of the tribe if possible.

The act is a vestige of the 1970s, when there were widespread concerns about what was then seen as the wholesale removal of American Indian children from their birth families through abusive child welfare practices.

At the time of its adoption, many children were put up for adoption or into foster care, usually in non-Indian homes.

Alito paid particular attention to a provision barring involuntary termination of a parent's rights absent a heightened showing that the Indian child could be seriously harmed from the parents' "continued custody."

He said this provision "is inapplicable when, as here, the parent abandoned the Indian child before birth and never had custody of the child.

Alito also noted that no one else had sought to adopt the baby girl, and that the biological father himself was not trying to adopt her but was merely arguing that his parental rights should not be terminated.

He said the placement preference among Indian families "does not bar a non-Indian family like Adoptive Couple from adopting an Indian child when no other eligible candidates have sought to adopt the child."

The majority also took particular issue with the South Carolina Supreme Court's suggestion that ICWA mandated measures such as "attempting to stimulate [Biological] Father's desire to be a parent.'"

"But if prospective adoptive parents were required to engage in the bizarre undertaking of 'stimulat[ing]' a biological father's 'desire to be a parent,' it would surely dissuade some of them from seeing to adopt Indian children," Alito wrote. "And this would, in turn, unnecessarily place vulnerable Indian children at a unique disadvantage in finding a permanent and loving home, even in cases where neither an Indian parent nor the relevant tribe objects to the adoption."

Alito was joined in the opinion by Chief Justice John Roberts and Justices Anthony Kennedy, Clarence Thomas and Stephen Breyer, the latter two of whom wrote concurring opinions.

Justice Sonia Sotomayor struck a different tone in the dissenting opinion. She said the path the majority took from the text of ICWA is "anything but clear," and the result "anything but right."

"The majority begins its analysis by plucking out of context a single phrase from the last clause of the last subsection of the relevant provision, and then builds its entire argument upon it," she wrote. "That is not how we ordinarily read statutes."

She continued: "in the majority's view, a family bond that does not take custodial form is not a family bond worth preserving from 'breakup,'" adding that "there are apparently no limits on the contaminating power" of the phrase "continued custody."

When the majority's interpretation "excludes noncustodial biological fathers from the Act's substantive protections, this textually backward reading misapprehends ICWA's structure and scope," she wrote.

Sotomayor was joined by Justices Ruth Bader Ginsburg, Elena Kagan and Antonin Scalia, who joined in part and wrote his own dissent.

Explaining that he largely stood with Sotomayor's opinion, Scalia wrote: "I reject the conclusion that the Court draws from the words 'continued custody' ... not because 'literalness may strangle meaning' ... but because there is no reason that 'continued' must refer to custody in the past rather than custody in the future."

"While I am at it, I will add one thought," Scalia continued. "The Court's opinion, it seems to me, needlessly demeans the rights of parenthood. It has been the constant practice of the common law to respect the entitlement of those who bring a child into the world to raise that child. We do not inquire whether leaving a child with his parents is 'in the best interest of the child.' It sometimes is not; he would be better off raised by someone else. But parents have their rights, no less than children do."

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