In a complex and heart-wrenching case, a divided Supreme Court ruled Tuesday that the parental rights of a Native American father may be terminated if he has failed to establish a history of "continued custody" of his biological child.
The decision in Adoptive Couple v. Baby Girl, however, is viewed as narrow and leaves intact the the 1978 federal law known as the Indian Child Welfare Act. The law was designed to stop the historically brutal and improper removal of Native American children from their families for adoption or foster care by white parents.
"I'm not personally happy with the decision, but I think it is very narrow, and very case- and individual-specific," says Kevin Leecy, tribal chairman of the Bois Forte Band of Chippewa. "It did not alter the protection given to tribes and their members."
But its immediate effect is a repudiation of efforts by Dusten Brown, a member of the Cherokee Nation, to wrest his biological daughter from her adoptive parents in South Carolina. Brown in late 2011 had won custody of his then-2-year-old daughter when lower courts ruled in favor of his argument that his rights under ICWA trumped state adoption law.
The adoptive parents, Matt and Melanie Capobianco, who arranged the private adoption with Brown's non-Native American former girlfriend, Christy Maldonado, appealed to the Supreme Court claiming ICWA is unconstitutional.
The court's decision, which steered clear of the law's constitutionality, was still a disappointment to Indian family advocates who say it undermines ICWA's efforts to keep Native American families, and culture, intact.
"This is a hard disappointment for me," says Mary Jo Brooks Hunter of the Child Advocacy Clinic at Hamline University's School of Law. "There is still a lack of awareness of the need to keep Native American heritage alive, and we are not in a good place in terms of the Supreme Court."
But others hailed the 5-4 decision as a boon to state courts seeking to hold accountable unmarried fathers, no matter their heritage, and asserted that the ruling poses no threat to ICWA's constitutionality.
"My basic view has been that ICWA is an excellent and important piece of legislation that applies and should apply primarily to circumstances where state agencies seek to remove children from their tribal families," says Joan Heifetz Hollinger of University of California, Berkeley, School of Law, a leading authority on adoption law.
Her argument, made in an amicus brief filed on behalf of the adoptive parents, hinges on Brown's failure to financially or emotionally support his pregnant ex-girlfriend during the time she was carrying the child.
"This is a case that dealt with a situation where a biological father, who knows about the pregnancy and a birth ... sits on the sidelines," Heifetz Hollinger says. "This is a message to mothers and fathers that simply using the biological trump card is not a way to establish or sustain a family relationship."
An analysis at SCOTUSblog says that the court had "two competing interpretations of the ICWA." The more expansive one, advocated by the biological father, argued that ICWA applies whenever a court is considering whether to terminate parental rights of a Native American parent. The competing interpretation, says Mike Gottlieb of SCOTUSblog, 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 Native American children from an existing Native American family."
In his majority opinion, Justice Samuel Alito wrote that during Maldonado's pregnancy, and for four months after that, Brown did not involve himself in the child's life, nor provide financial help. He never had legal custody of the child; Maldonado did, and she acted lawfully when she initiated adoption proceedings.
But when Brown saw paperwork of the pending adoption, he sought custody of the girl under the ICWA and was given it by a South Carolina family court.
The high court's ruling turns on the phrase "continuing custody" and the argument that a family that was never intact cannot be fractured.
Alito noted that even if Brown met the standard of a parent under ICWA, two sections of that act do not bar the termination of his parental rights. The ruling says at the time of the adoption, Brown had never had legal or biological custody of his child, or "continuing custody."
Thus a section noting "continued custody" of a child doesn't apply. However, the girl now lives with Brown.
Alito also wrote that only the adoptive parents sought to adopt the child — not Brown, nor members of his family or the Cherokee Nation. Alito says the biological father instead "argued that his parental rights should not be terminated in the first place."
Justice Sonia Sotomayor, in a dissent, argued that the majority decision wrongly hangs on the meaning of "continued custody" of a child and may hurt other Native American parents in the future:
"Moreover, notwithstanding the majority's focus on the perceived shortcomings of the Birth Father, its reasoning necessarily extends to all Indian parents who have never had custody of their children, no matter how fully those parents have embraced the financial and emotional responsibilities of parenting."
She adds that this transforms a uniform federal standard for child custody involving Indian children and their biological parents into "an illogical piecemeal scheme."
Justice Antonin Scalia joined with Sotomayor in her dissent, but he added one final thought:
"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 interests 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. 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."
In April, NPR's Nina Totenberg wrote of the child, "Videos of her with her father, now married, seem to show a little girl equally happy. Her birth mother says that while she spent time with her child at the adoptive parents' home in South Carolina and listened to her child on the phone regularly, she now does not even know where her daughter lives. Neither do the adoptive parents. Dusten Brown says he has kept his daughter apart for the past 16 months to allow her to become used to her new home, away from the chaos and bitterness of the legal fight."
The case is expected to go back to court in South Carolina, where judges will have to factor in today's high court decision when they decide where the little girl — who spent two years with her adoptive parents, and the past year-plus with her biological father — will end up.
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