United States Supreme Court reverses on South Carolina Indian Adoption case

Posted Tuesday, June 25th, 2013 by Gregory Forman
Filed under Adoption/Termination of Parental Rights, Audience:, Child Support, Not South Carolina Specific, Of Interest to Family Law Attorneys, Of Interest to General Public, United States Supreme Court Decisions

In a highly anticipated case that generated much local notoriety, and in which some of my friends and colleagues participated, the United States Supreme Court reversed the South Carolina Supreme Court in the case of Adoptive Couple v. Baby Girl, 133 S.Ct. 2552 (2013), and “remand[ed] the case for further proceedings not inconsistent with this opinion.”

This case involved a South Carolina couples’ request to adopt a baby girl who whose father initially attempted to relinquish his parental rights but later changed his mind. The child was placed with Adoptive Couple when she was four months old.  Father was a member of the Cherokee Nation and the issue on appeal was whether the Indian Child Welfare Act of 1978 (ICWA) applied despite the child never being in father’s custody prior to the adoption request. The South Carolina family court decided the ICWA applied, denied the Adoptive Couples’ request for adoption, and ordered the child placed with father.  After the South Carolina Supreme Court denied supersedeas, on December 31, 2011 the child was removed from Adoptive Couple and went to live with father in Oklahoma.  In a subsequent 3-2 decision with two passionate dissents and in which I predicted that the United States Supreme Court might accept certiorari, the South Carolina Supreme Court affirmed.

In a June 25, 2013, 5-4 decision the United State Supreme Court reversed the South Carolina Supreme Court, holding that:

Contrary to the State Supreme Court’s ruling, we hold that 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. We further hold that §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. Finally, we clarify that §1915(a),which provides placement preferences for the adoption of Indian children, does not bar a non-Indian family like Adoptive Couple from adopting an Indian child when no other eligible candidates have sought to adopt the child.

Among the noteworthy items in this decision is that it didn’t strictly hold to the conservative-liberal 5-4 splits typical of the current Supreme Court, where Roberts, Scalia,Thomas and Alito are on one side; Ginsburg, Breyer, Sotomayor and Kagan on the other side; and Kennedy provides the deciding–and typically conservative–vote.  Here Breyer joined with the conservatives and Scalia joined with the liberals in a case that doesn’t appear to present any obvious ideological positioning.

Justice Thomas’ concurring opinion raised constitutional concerns that the ICWA was outside the authority of the Indian Commerce Clause, Art. I, §8, cl. 3, as child custody proceedings involved neither commerce nor Indian tribes (as opposed to individual Indians).

Justice Sotomayor’s principal dissent–joined, at least in part, by the other three dissenters–felt the majority gave too narrow a reading to the language in the ICWA:

A casual reader of the Court’s opinion could be forgiven for thinking this an easy case, one in which the text of the applicable statute clearly points the way to the only sensible result. In truth, however, the path from the text of the Indian Child Welfare Act of 1978 (ICWA) to the result the Court reaches is anything but clear, and its result anything but right.

The reader’s first clue that the majority’s supposedly straightforward reasoning is flawed is that not all Members who adopt its interpretation believe it is compelled by the text of the statute, see ante, at 1 (THOMAS, J., concurring); nor are they all willing to accept the consequences it will necessarily have beyond the specific factual scenario confronted here, see ante, at 1 (BREYER, J., concurring).  The second clue is that the majority begins its analysis by plucking out of context a single phrase from the last clause of the last subsection of the relevant provision, and then builds its entire argument upon it. That is not how we ordinarily read statutes. The third clue is that the majority openly professes its aversion to Congress’ explicitly stated purpose in enacting the statute. The majority expresses concern that reading the Act to mean what it says will make it more difficult to place Indian children inadoptive homes, see ante, at 14, 16, but the Congress that enacted the statute announced its intent to stop “an alarmingly high percentage of Indian families [from being] broken up” by, among other things, a trend of “plac[ing] [Indian children] in non-Indian . . . adoptive homes.” 25 U. S. C. §1901(4). Policy disagreement with Congress’ judgment is not a valid reason for this Court to distort the provisions of the Act. Unlike the majority, I cannot adopt a reading of ICWA that is contrary to both its text and its stated purpose.

Justice Scalia’s dissent raises an interesting issue that I had addressed in a previous blog on this case:

While I am at it, I will add one thought. The Court’s opinion, it seems to me, 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.” 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.

This is the second time in two years that the United States Supreme Court has reversed the South Carolina Supreme Court on a family law case.  Given that the United States Supreme Court issues very few family law opinions, this coincidence is unusual.  Further the United States Supreme Court remanded the case rather than simply ordering the adoption go forward.  Since child has now been living with father for 18 months, it is unclear whether he will be entitled to a de novo review.

As for the folks who expressed curiosity regarding my opinion of the correctness of the United States Supreme Court’s ruling, I don’t really have one.  As I wrote when the South Carolina Supreme Court opinion was issued:

Father’s repeated manifestations of disinterest in parenting this child until he was served with adoption proceedings render him unsympathetic.  That Adoptive Couple obtained placement of Baby Girl and removed her from Oklahoma based on inaccurate information supplied by Mother undercuts their legal position without it necessarily being their fault.  The Cherokee Nation’s federally protected interests in having its children raised within its culture adds factors rarely encountered in adoption cases.  This was a hard case.

Eleven months later it remains a hard case.