Supreme Court silently ignores clear text of Indian Child Welfare Act, "needlessly demeans parenthood"

The majority opinion in Adoptive Couple v. Baby Girl (U.S. S.Ct. June 25, 2013) displays a disturbingly dismissive attitude towards unwed fathers, and indeed all non-custodial parents, and toward the purposes of the  Indian Child Welfare Act, while making a textually decent case that three particular pieces of ICWA do not apply to the case: 25 USC § 1912 (d) and (f), which appear to be written primarily for children removed from Indian homes and put in foster care, which sound like good, safe rules to apply to adoptions in order to protect parents' and children's basic constitutional rights, but which may not literally apply to adoptions the way they are written; and 25 USC § 1915 (a), which clearly comes into play only AFTER a decision that a child will be put up for adoption, giving preference to extended family, other members of the tribe, and then Indians from other tribes.  But those statutes are not the primary ones covering this case. The clearly stated, fundamental rule covering this case is the rule on voluntary consents to adoption:

"25 USC § 1913 - Parental rights; voluntary termination. (c) Voluntary termination of parental rights or adoptive placement; withdrawal of consent; return of custody. In any voluntary proceeding for termination of parental rights to, or adoptive placement of, an Indian child, the consent of the parent may be withdrawn for any reason at any time prior to the entry of a final decree of termination or adoption, as the case may be, and the child shall be returned to the parent."

This provision is the clearest and simplest basis for dismissing the adoption and immediately returning the child to the father. It makes it unnecessary to consider the other ICWA provisions, which gave the Court so much difficulty and dissension.  It was cited in the South Carolina Supreme Court opinion below, Adoptive Couple v. Baby Girl, 398 S.C. 625 (2012), and I cannot imagine why it is mentioned not at all in the majority opinions, and only once, briefly, in the otherwise-awesome dissents. That lower-court opinion also contains several key facts of the case, conveniently omitted from the majority opinion. Such as that the father had filed a paternity suit.
What is truly scary about this case is the way it talks about non-custodial parents and unwed fathers, echoing some of the justices' comments in the oral arguments of Abbott v. Abbot, about the Hague Convention on international child abduction. The majority justices equate being a non-custodial parent with complete abandonment of any role as a parent, as if they were personally unfamiliar with the widespread realities of family breakdown and non-marital pregnancy, and had made no effort to investigate how these things work in contemporary society and law. They are extremely skeptical that the Act could have been intended to be used by unwed fathers who have not already had custody, and that skepticism colors their textual interpretation. On the other hand they gush about the adoptive parents, and how the adoptive father cut the umbliical cord himself -- even though the actual father was not invited to do so and it makes no difference whatever to the child. As Justice Scalia, dissenting, sums it up:
"The Court’s opinion … 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.”"
In this case the father had earlier agreed to the mother keeping the child, which is not the same as agreeing to adoption. It did not seem like the same thing to the father, nor does it to most people, nor does the law treat it that way, but the majority opinion sees it as the moral equivalent of "abandoning" a child. He later signed something which would count as a proper consent to adoption, but claimed he didn't understand that the mother was putting the chld up for adoption by third parties -- which is certainly believable given that everyone from young unwed fathers to the Chief Justice of the U.S. Supreme Court has a lot of difficulty understanding basic concepts and distinctions in family law. But anyhow, the federal Indian Child Welfare Act gave him the right to revoke that consent at any time up until the final adoption order was issued, and he did that within that time limit -- in fact, the very next day.  That should have been the end of it, and the baby, then four months old, was supposed to have been returned to him immediately at that point under the Act.
Adoption is wonderful, of course, but at that point the child was not up for adoption. “We must remember that the purpose of an adop­tion is to provide a home for a child, not a child for a home.” In re Petition of Doe, 159 Ill. 2d, at 368, 638 N. E. 2d, at 190, quoted by Justice Sotomayor, dissenting.
 Now, I can't do justice to the dissents. They are splendid. They are required reading for anyone interested in family law or constitutional law. Including those of us who are forced to become interested in family law only when family law becomes interested in us. And Justice Sotomayor seems to be the one Justice who accepts that family breakdown is not a stigmatized aberration, but a widespread fact of life that should be dealt with in a way that respects everyone's dignity, i.e., that non-custodial parents have valuable roles, responsibilities and rights; who believes that if the Court gets involved in family law it should educate itself about family law, about what statutes and case law are in force and are followed in practice; and who looks back to the last era when the Court got involved in family law and defined parents' constitutional rights in family law cases. (Although I guess the same care and values should be attributed to the justices who joined her dissent, Scalia, Ginsburg and Kagan.) Here is just one out of many extremely quotable passages:
“The majority’s focus on “intact” families … begs the question of what Congress set out to accomplish with ICWA. In an ideal world, perhaps all parents would be perfect. They would live up to their parental responsibilities by providing the fullest possible financial and emotional support to their children. They would never suffer mental health problems, lose their jobs, struggle with substance dependency, or encounter any of the other multitudinous personal crises that can make it difficult to meet these responsibilities. In an ideal world parents would never become estranged and leave their children caught in the middle. But we do not live in such a world. Even happy families do not always fit the custodial-parent mold for which the majority would reserve IWCA’s substantive protections; unhappy families all too often do not. They are families nonetheless. Congress understood as much. ICWA’s definitions of “parent” and “termination of parental rights” provided in §1903 sweep broadly. They should be honored.” -- Justice Sotomayor, dissenting.
Here are the statutes discussed by the majority opinion:
25 USC § 1912 (d) Remedial services and rehabilitative programs; preventive measures. Any party seeking to effect a foster care placement of, or termination of parental rights to, an Indian child under State law shall satisfy the court that active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and that these efforts have proved unsuccessful.
25 USC § 1912 (f) Parental rights termination orders; evidence; determination of damage to child. No termination of parental rights may be ordered in such proceeding in the absence of a determination, supported by evidence beyond a reasonable doubt, including testimony of qualified expert witnesses, 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.
25 USC § 1915 (a) Adoptive placements; preferences. In any adoptive placement of an Indian child under State law, a preference shall be given, in the absence of good cause to the contrary, to a placement with
(1) a member of the child’s extended family;
(2) other members of the Indian child’s tribe; or
(3) other Indian families.


Supreme Court Narrows Indian Child Welfare Act

I haven't looked under the hood of this decision yet, but this sounds like exactly the typical kind of case where ICWA would apply and would keep the child in the tribe. The Indian being an unwed father should not make any difference, and is certainly not a novel and unforeseen twist. The news stories quote Scalia's dissent:

"This father wants to raise his daughter, and the statute amply protects his right to do so. There is no reason in law or policy to dilute that protection."

And Sotomayor's dissent:

Sotomayor said the court's decision turns the law "upside down, reading it from bottom to top in order to reach a conclusion that is manifestly contrary to Congress' express purpose in enacting ICWA: preserving the familial bonds between Indian parents and their children and, more broadly, Indian tribes' relationships with the future citizens who are 'vital to (their) continued existence and integrity.'"

"The anguish this case has caused will only be compounded ... Baby Girl has now resided with her father for 18 months," she said. "However difficult it must have been for her to leave Adoptive Couple's home when she was just over 2 years old, it will be equally devastating now, if at the age of three and a half, she is again removed from her home and sent to live halfway across the country."

Court: Child isn't required to go to Indian father

By JESSE J. HOLLAND | Associated Press

Justices Say Law Doesn’t Require Child’s Return to Indian Father

By  and  - NY Times



US rightly refuses Hague Convention case for child-stealing, but state court can return child

I've never heard of a nation's government refusing to process a request for return of a child under the Hague Convention on child abduction, and to let the petitioner then go to a court for a decision on whether to return the child. It must happen sometimes, but you don't tend to hear of it. But the U.S. State Department is absolutely right to do that in the case of Anyeli Hernandez, who was abducted from Guatemala over a year before the Convention went into effect there. "Hernandez, now seven, was abducted in November 2006 and wound up, illegally, with an adopting American couple. ... Guatemalan authorities have prosecuted three people for kidnapping and for placing Anyeli Hernandez up for adoption." ("U.S. will not return illegally adopted Guatemalan girl" - Agence France-Presse, Tuesday, May 15, 2012)

The Hague Convention very clearly says that it only applies to cases where the Convention was in effect between both countries at the time of the abduction. But as the State Department points out, the real mother in Guatemala can still go to the local courts where the child lives to enforce her custody order and undo the adoption. That is not just a theoretical cop-out by the State Dept. - it is something that we and other lawyers do all the time, using a uniform state law, the Uniform Child Custody Jurisdiction and Enforcement Act. It helps many parents in cases where the Hague Convention does not apply.


Open Adoption is Now the Norm

New report: Boom in ‘open’ adoptions as most birthmoms stay in contact with child’s new family - AP 3-20-12

Excerpts: ... only about 5 percent of infant adoptions in the U.S. now take place without some ongoing relationship between birth parent and adoptive family, according to a comprehensive new report ... based on a survey of 100 adoption agencies.

Of the roughly 14,000 to 18,000 infant adoptions each year, about 55 percent are fully open, with the parties agreeing to ongoing contact that includes the child, the report said. About 40 percent are “mediated” adoptions in which the adoption agency facilitates periodic exchanges of pictures and letters. ...

The Donaldson institute, citing its own research and numerous other studies, said most participants find open adoptions a positive experience. In general, the report said, adoptive families are more satisfied with the adoption process, birthmothers experience less regret and worry, and the adopted children benefit by having access to their birth relatives, as well as to their family and medical histories.




Are some Chinese adoptees actually abducted, trafficked? - NYT

"For Adoptive Parents, Questions Without Answers" - New York Times 9-16-11 reports on the effect on international adoption families of an earlier Times story from China:

Chilling news for many adoptive parents: government officials in Hunan Province, in southern China, had seized babies from their parents and sold them into what the article called “a lucrative black market in children.”

... the latest in a slow trickle of reports describing child abduction and trafficking in China. ... Child abduction and trafficking have plagued other international adoption programs, notably in Vietnam and Romania, and some have shut down to stop the black market trade.