The third family law case which the Supreme Court ruled on at the end of June 2013 was also another 5-4 decision. The Court was quite varied in the several opinions that make up the case. Writing for the majority was Justice Alito, joined by Justices Kennedy and Roberts. Justice Breyer and Justice Thomas filed separate but concurring opinions. Justice Scalia filed a dissenting opinion. Justice Sotomayor filed a dissenting opinion in which Justice Ginsburg and Justice Kagan joined, and in which Justice Scalia joined in part. Apparently the final reading is that a non-custodial parent may not block his child’s adoption, even if he is a Native American.
Baby Girl is a case in which a mother from Oklahoma agreed to allow a South Carolina couple to adopt her newborn daughter after the baby’s biological father disclaimed any interest in raising the child, though his parental rights were never severed. When he learned of the planned adoption, he objected. And because he is a registered member of an Indian tribe, the lower courts ruled that a federal law protecting Native American families, the Indian Child Welfare Act (ICWA), barred the adoption. As a result, the South Carolina Supreme Court halted the adoption and gave custody of the girl to the biological father.
The Supreme Court of the United States, therefore, had before it two competing interpretations of the ICWA: the more expansive version, advocated by the biological father, argued essentially that ICWA applies whenever a court is considering whether to terminate parental rights of a Native American parent; the competing interpretation, advanced by the adoptive parents, argues that ICWA’s coverage is limited to the kinds of cases that Congress most likely had in mind when it passed ICWA — namely, those in which social workers and other government officials are seeking to remove Indian children from an existing Indian family. Megan Lindsey, Regent Law 2008, now working with the National Council for Adoption, drafted an excellent and persuasive amicus brief in support of adoption.
The Court took an approach based upon the latter interpretation, holding that the relevant sections of ICWA were designed to prevent the dismantling of Indian families by the removal of Indian children. Justice Alito interpreted Congress’s design of Section 1912(f), which addresses the involuntary termination of parental rights with respect to an Indian child, as excluding cases in which an Indian parent never had legal or physical custody of the child in question. “In sum … [where] the adoption of an Indian child is voluntarily and lawfully initiated by a non-Indian parent with sole custodial rights, the ICWA’s primary goal of preventing the unwarranted removal of Indian children and the dissolution of Indian families is not implicated.” And Section 1912(d), like 1912(f), applies “only in cases where an Indian family’s ‘breakup’ would be precipitated by the termination of the parent’s rights.” That section, the Court explained, is “sensible” when it is applied “to state social workers who might otherwise be too quick to remove Indian children from their Indian families. It would, however, be unusual to apply [Section] 1912(d) in the context of an Indian parent who abandoned a child prior to birth and who never had custody of the child.”
Consequently, the Court held that ICWA’s provisions were not designed to apply to the circumstances presented by this case. The Court reversed the judgment of the South Carolina Supreme Court and remanded for further proceedings. Justice Thomas concurred to emphasize that the Court’s result was compelled by constitutional avoidance. Justice Breyer also concurred separately. Justice Sotomayor wrote the principal dissent, joined by Justice Scalia (in part) and Justices Ginsburg and Kagan in full, noting the potential for other sections of the ICWA to allow for the child’s Cherokee grandparents to object to the adoption. The full text of the case can be found here.
This case can be seen as good for adoption, troubling for parental rights, and troubling for racial disparity all at once. It is helpful for adoption in that it recognizes how adoption provides a stable, secure home for a child who needs one. It is troubling for parental rights in that a non-custodial parent appears now to have no assertable parental rights, and it is troubling for racial disparity because the opinion seems to disregard the great harm that has been done to Native Americans by United States law in the face of a federal rule that was designed to protect those racial families from separation. (A forum on racial profiling in the law was held at Regent University this past spring; Daryl Hayott (Regent Law 2013) presented the key substance, and for readers with a Regent ID, his presentation can be viewed here).
The majority opinion in Adoptive Couple v. Baby Girl (U.S. S.Ct. June 25, 2013) displays a troubling attitude towards unwed fathers, and even to all non-custodial parents, and toward the purposes of the Indian Child Welfare Act, as set out by the Family Law News Blog. More details on the case can be read in the New York Times. While this case was being argued, Russia decided to ban adoptions of Russian children by foreign couples.
While an adoptive family had a child restored to them, natural parents, even those who objected to the adoption and were thought to be protected by a federal code, experienced greater family breakdown. As for the child, she was four months when the father objected to her adoption, two years old when she was removed from their care by South Carolina to her Cherokee family, and is now almost three and a half years old being moved back to her adoptive family. The instability for Baby Veronica is a bit alarming.
For a Supreme Court that has virtually no family law jurisdiction (as domestic relations law is reserved for the States), there certainly were some significant aspects of family law that were decided by the High Court in 2013, making family strengthening through restoration more challenging in the future.