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Name: Adoptive Couple v. Baby Girl
Case #: 12-399
Court: US Supreme Court
District USSup
Opinion Date: 06/25/2013
Subsequent History: 133 S.Ct. 2552; 186 L.Ed.2d 729

Two ICWA provisions (§1912(d) and §1912(f)) addressing involuntary termination of Indian parental rights do not apply where an Indian father never had legal or physical custody of the Indian child. While Birth Mother was pregnant with Biological Father’s child, their relationship ended, and Father, a member of the Cherokee Nation, agreed in a text message to Mother to relinquish his parental rights rather than pay her child support. Mother placed Baby Girl for adoption with Adoptive Couple. About four months later, Father was served notice of the adoption and signed papers stating he did not contest it. Realizing he misunderstood the papers, Father sought custody and Baby Girl was ultimately turned over to Father, whom she had never met, at the age of 27 months. The South Carolina Supreme Court held that ICWA applied because the child custody proceeding related to an Indian child, that Father was a “parent” under ICWA, and that two statutory provisions of ICWA – §§1912 (d) and (f) – barred termination of his rights. In this 5-4 split decision, the United States Supreme Court reversed the orders and remanded for further proceedings, finding that the ICWA provisions did not apply in this case. 25 U.S.C. §1912(f) – which bars involuntary termination of a parent’s rights in the absence of a heightened showing that serious harm to the Indian child is likely to result from the parent’s “continued custody” of the child – does not apply when, as here, the relevant parent never had custody of the child. And, §1912(d) – which conditions involuntary termination of parental rights with respect to an Indian child on a showing that remedial efforts have been made to prevent the “breakup of the Indian family” – is inapplicable when, as here, the parent abandoned the Indian child before birth and never had custody of the child. It was undisputed that Father never had physical custody, never provided financial assistance even though Mother asked and he had the ability to do so, and instead agreed to relinquish his parental rights prior to Baby Girl’s birth. Further, §1915(a)’s preference for the adoptive placement of an Indian child is also not applicable in cases where no alternative party has formally come forward to adopt the child. Here, neither Father nor other members of the Cherokee Nation formally sought to adopt Baby Girl, only Adoptive Couple did so. [J. Thomas concurred separately because the majority interpretation avoids constitutional questions, such as whether the Constitution grants Congress power to override state custody law whenever an Indian is involved. J. Breyer concurred separately because: (1) ICWA does not address how to treat an absentee Indian father who had next-to-no involvement with his child in the first few months of her life, (2) the Court should not decide issues that are not before it, and (3) other statutory provisions not now before the Court may nonetheless prove relevant in cases of this kind. The dissent by Sotomayor, in which Kagan, Ginsburg, and Scalia joined, noted §1903 recognizes Birth Father as Baby Girl’s “parent,” and, in conjunction with ICWA’s other provisions, establishes a “parent-child relationship” that is protected under federal law. The dissenters viewed the entire foundation of the majority’s argument that subsection (f) does not apply is in the phrase “continued custody,” which it concluded “cannot bear the interpretive weight the majority would place on it.” J. Scalia also dissented separately, commenting, the majority “needlessly demeaned the rights of parenthood.”]