Sunday, April 21, 2013

SCOTUS To Decide What Is An Indian Family

Just as the United States Supreme Court recently heard oral arguments on Defense of Marriage Act (DOMA)  there were other cases questioning child welfare law.

One of the issues that did not make it before the one hour window for oral arguments was shuttered was the question of the rights of military.  The father was deployed oversees for war when the State of South Carolina decided he was not considered he and his daughter were not considered to be a family.

The Supreme Court's agenda of this session is heavily seasoned with child welfare cases.  Even though the term may not headline a particular case, child welfare has made it to the national agenda. 

It is time we, as a nation, re-examine how we define child welfare because so far, the country's track record is not looking too good.


Facts of the Case 
When the biological mother of Baby Girl became pregnant she did not live with the father and the father did not support the mother financially. The mother sent the father a text message asking if he would rather pay child support or relinquish his parental rights. He sent a text back, saying that he would relinquish his rights, though he later testified that he thought he was relinquishing his rights only to the mother. The biological father was a registered member of the Cherokee Nation. The biological mother attempted to verify this status, but spelled the father’s name wrong and misrepresented his birthday in the request, so the Nation could not locate the father’s registration. The mother listed Baby Girl’s ethnicity as “Hispanic” instead of “Native American” on the birth certificate. The mother decided to put Baby Girl up for adoption because she had two other children that she struggled to support.

Adoptive Couple, who resided in South Carolina, began adoption proceedings in that state. The Cherokee Nation finally identified the father as a registered member and filed a notice of intervention, stating that Baby Girl was an “Indian Child” under the Federal Indian Child Welfare Act (ICWA). The father stated that he did not consent to the adoption and would seek custody of Baby Girl. After trial, the family court denied Adoptive Couple’s petition for adoption and granted custody to the biological father. The court held that the biological father was a “parent” under the ICWA because of his paternity and pursuit of custody as soon as he learned that Baby Girl was being put up for adoption. Adoptive Couple did not follow the procedural directives in the ICWA to obtain the father’s consent prior to initiating adoption proceedings. The Supreme Court of South Carolina affirmed.

Can a non-custodial parent invoke ICWA to block an adoption voluntarily and lawfully initiated by a non-Indian parent under state law?
Does ICWA define “parent” to include an unwed biological father who has not complied with state law rules to attain legal status as a parent?

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