Adoptive Couple v. Baby Girl : A Review of the Decision and Relevant ICWA Provisions

1. Adoptive Couple v. Baby Girl: A Review of the Decision and Relevant ICWA Provisions Terry Cross, MSW, NICWA Executive Director

2. For Colonialism to Succeed Take Territory – Land Take Natural Resources – Energy/Food Take Sovereignty – Disrupt Leadership and Governance Take Away the Legitimacy of Thought – Worldview, Language, Spirituality, Healing Take the Children

3. Changes in the 1970s Association on American Indian Affairs Study Findings included: 25 – 35% of all Indian children had been removed from their families and placed in care. 85% of those children were being placed in non-Indian homes or institutions.

4. Indian Child Welfare Act • In response to the overwhelming evidence from Indian communities that the loss of their children meant the destruction of Indian culture, Congress passed the Indian Child Welfare Act in 1978.

5. Indian Child Welfare Act • Congress acknowledged that, “there is no resource that is more vital to the continued existence and integrity of Indian tribes than their children.”

6. What Does ICWA Do? • Establishes minimum federal standards for state removal of Indian children from their families • Provides framework for Indian tribes to exercise their sovereign authority over child custody and to operate child welfare programs

7. What Does ICWA Do? • Protects the right of Indian children to grow up with their own parents, extended family and tribe and all rights associated with tribal citizenship • Protects Indian parents from unwarranted or unscrupulous removal of their children, and their rights to due process • Protects the rights of tribes to protect their citizens and to exercise their sovereign authority over child custody

8. Voluntary Consent Under ICWA: A Review §1913(a);(c) Parents can voluntarily consent to the termination of their parental rights and the adoption of their child. Consent must be executed in writing after the child is at least 10 days old: • Consent must be recorded before a judge (or magistrate) in a court of competent jurisdiction; and • The judge must also certify that the terms and consequences of consent were fully explained and understood--in the appropriate language The placement preferences of ICWA must still be followed in voluntary adoptive placements (this has changed, somewhat due to the Baby Veronica case); however, a parent’s desire for anonymity must be considered.

9. Voluntary Consent: Adoption Considerations §1913(a);(c) • Consent must be obtained by BOTH parents • If voluntary consent cannot be obtained from both parents then the rights of the non-consenting parent must be terminated by involuntary procedures (this is what was attempted in the Baby Veronica Case) • An unwed father must be treated as a father if he has acknowledged or established paternity: • Filing an affidavit of parental rights, asserting his right as a parent in a court of law, proof that he is a punitive father • Acknowledgement of paternity does not have to meet state paternity standards • This question went unanswered in the Baby Veronica case

10. Voluntary Proceedings: Adoption Consent Contents §1913(a); FR E.2 • Name and birthdate of child • Name of tribe and tribal membership # • Name and address of consenting parent • Name and address of the person/entity through whom the adoptive/pre-adoptive placement was arranged • Parents’ right to w/draw consent at any point before an entry of order terminating parents’ rights • Right to be notified if the adoption is set aside or vacated • Right to have the proceeding in closed court

11. Voluntary Proceedings: Practice Tips • Good practice vs. minimum requirements of the law considerations • While notice is not required by federal law – do it, tribes are allowed to intervene at any point & placement preferences apply (ex. OK/WA) • While the contents of the consent are not required the rights and consequences of relinquishment must be discussed so inclusion makes sense

12. Voluntary Adoptions: Practice Tips Key considerations in good practice include: • Involve all people affected by placement (tribe and family members) (including unwed fathers) • Use effective planning and decision making processes (e.g. family group conferencing, father) • Explore alternatives to adoption (relative care and guardianship) • Ensure that collateral workers understand these principles and have skills to implement (i.e. ICPC, contract agencies)

13. Voluntary Proceedings: Withdrawal of Consent • Parent has the right to withdraw consent to the adoption of an Indian child or termination of parental rights at any time prior to the entry of a final decree. • Note: Consent to TPR may not be undone if the TPR decree is entered, EVEN if the adoption decree has not yet been finalized. • If consent was given under fraud or duress, parents may petition the court to vacate the adoption decree up to two years after the adoption.

14. Adoptive Couple v. Baby Girl

15. Quick Review of the Facts • Dusten and Mother were engaged • 1 month later Veronica was conceived • After learning of pregnancy Father tried to move wedding up—to support mother • Mother broke off engagement while Dusten was in pre-deployment training at Fort Sill

16. Quick Review of the Facts • Text messages were exchanged • Mother, without informing father placed Veronica for adoption • Incorrect notice was sent to Cherokee Nation (misspelled name and wrong birthdate of father) • Immediately after Veronica’s birth she was moved to a pre-adoptive placement in SC • ICPC paperwork did not identify Veronica as having native heritage

17. Quick Review of the Facts • 4 months after Veronica's birth and placement Dusten received notice of the pending adoption (delayed notice) • The next day Dusten contacted a lawyer and requested a stay of the adoption proceedings • He stated that he sought custody and did not consent to the adoption • His paternity was confirmed via paternity test

18. Lower Court Decision The South Carolina Court(s) applied ICWA and: • Found that dad’s parental rights could not be involuntarily terminated because of the protections provided in ICWA 1912(d)&(f), • The adoption was denied, • Father was given custody

19. Questions Before the Court • Does ICWA’s definition of “parent” require unwed fathers to meet state law requirements to “acknowledge or establish” paternity? • Does ICWA apply when the child is not a part of an existing Indian family? • Child never lived with Indian parent • Indian father is viewed as never having had legal or physical custody

20. Question 1: Paternity The Court assumed that Dusten met ICWA’s definition of “parent” (without actually deciding) Effect on future cases: • The interpretation of “acknowledge or established” under ICWA was unaffected

21. Question 2: Application Limits The Existing Indian Family Exception was not accepted A different scheme was created by the Court to limit application • Based on statutory interpretation. • The interpretation only limits the rights of parents under two provisions of ICWA, the other protections of ICWA still apply to these parents.

22. Question 2: Application Limits No termination of parental rights may be ordered … in the absence of a determination, supported by evidence beyond a reasonable doubt…that the continued custody of the child by the parent… is likely to result in serious emotional or physical damage to the child. 25 U.S.C. § 1912 (f) • The Court found that these TPR protections only apply when a parent has legal or physical custody of the child at some point in time prior to the TPR/Adoption • The Court found that Dusten, under state custody laws in OK/SC had neither legal or physical custody, prior to the TPR/Adoption

23. Question 2: Application Limits Effect on future cases: • Parents who do not have legal or physical custody at some point in time prior to TPR/Adoption may not have the protection of the ICWA standards • Breyer warns that this could exclude “too many” fathers, and narrows the circumstances • Questions about use of qualified expert witness, 1912(e) where father has not had custody

24. Question 2: Application Limits 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 U.S.C. § 1912 (d) • The Court found that this TPR protection is not required to prevent the break up of an Indian family when a parent abandons a child before birth and has never had physical or legal custody of the child • The Court found that Dusten, had abandoned the child and never had physical or legal custody

25. Question 2: Application Limits Effect on future cases: • Parents who are considered to have abandoned their child and had no physical or legal custody are not guaranteed Active Efforts. • Breyer warns that this could exclude “too many” fathers, and narrows the circumstances. • Questions about foster care application.

26. Additional Issue Raised: Placement 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. 25 U.S.C. § 1912 (a) • The court found that these placement preferences are not triggered until a family under these preferences has filed for an adoption

27. Additional Issues Raised: Placement Preferences Effect on future cases: • Private/voluntary adoption caseworkers or facilitators may feel they no longer have a legal obligation to seek out family, tribal member or other Indian families. • What if a placement preference home filed for a guardianship instead of an adoptive placement? • Questions about integration of other state and federal laws (e.g. Fostering Connections: notice to relatives, placement preference for relatives, higher state law standards).

28. Constitutional Issues • Majority–“Such an interpretation would raise equal protection concerns” • When a father abandons a child and refuses to pay any support, maybe helps decide to place the child for adoption, then last minute “plays the ICWA trump card” to override mothers decision. • Thomas– Maj. Concurrance ( gives own opinion) • Indian Commerce Clause argument

29. What happened to Veronica? • Supreme Court opinion appeared to created a path for Veronica to remain with Dusten. • South Carolina’s Supreme Court Ordered the case be remanded to the lower (family) court and that the adoption be finalized • Ordered nobest interest hearing • Dusten and Cherokee asked the S.C. supreme court to rehear this decision. It was denied • Dusten and Cherokee asked the Supreme Court to stay the adoption. It was denied.

30. What happened to Veronica? • Oklahoma courts recognized the South Carolina adoption • Dusten and Cherokee asked Oklahoma Supreme Court to stay the adoption. This was granted. • After mediation failed, the Oklahoma Supreme Court lifted the stay and Veronica was removed from her father’s home and placed with the South Carolina Couple • Dusten and Cherokee drop all civil actions • Dusten and Veronica continue to have contact at the discretion of the adoptive family

31. Rights of Tribes Under ICWA • Right to jurisdiction and to hear and determine child custody cases of member children in a manner consistent with tribal code/tradition • Exclusive, concurrent, and right to transfer • Right to provide child welfare services to member children and families • Right to intervene in foster care placement or TPR • Upon intervention the rights/due process granted to all parties • Right to full faith and credit of tribal court law and orders • Right to petition for invalidation of a court order in violation of certain ICWA provisions • Right to define placement preferences, and extended family

32. What We Know • Thanks to all of our efforts ICWA still stands as law • We did everything we could to help Veronica and her family • Now we must turn our attention to helping and protecting all of the children in our communities

33. What We Do Now • It starts now, and it starts at home… • Know your rights under ICWA and help your community members know their rights • Consider what you are personally doing to help vulnerable kids in your community • Be a foster parent… or a foster auntie or foster uncle • Share ICWA success stories

34. What Else We Do Now Request the DOJ conduct an investigation of the adoption Indian children Ask BIA to promulgate regulations pursuant to ICWA and to update ICWA state court guidelines Advocate with state policymakers to strengthen ICWA implementation

35. www.nicwa.org National Indian Child Welfare Association Protecting Our Children, Preserving Our Culture