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The All-Powerful Indian Child Welfare Act: How To Avoid An Adoption Nightmare

A recent South Carolina Supreme Court decision has garnered national attention. The story line is straight out of a movie and the stuff of nightmares. A married couple, eager to adopt, enlists the assistance of an adoption agency to expand their family. The Adoptive Mother has a Master’s Degree and a Ph.D., and the Adoptive Father is an automotive body technician with Boeing. They live a simple life in Charleston, South Carolina, and want to adopt a child to expand their family from two to three. The Adoptive Parents are connected with the Birth Mother through the agency. Birth Mother selects the Adoptive Parents deciding that they can give her daughter a stable upbringing, something Birth Mother lovingly acknowledges she can not do.

Birth Mother and the Birth Father had a relationship which resulted in an engagement. Father was active duty Army, stationed four hours away from Birth Mother. Birth Mother became pregnant but the relationship was already stained and ended shortly thereafter. After Birth Mother called off the engagement, she ceased communicating with Birth Father. On one occasion, Birth Mother sent a text message to Birth Father asking if he would rather pay child support or surrender his parental rights. Father responded via text message that he would relinquish his rights, but would later testify that he believed he was relinquishing his rights to Birth Mother (not to anyone else).

Birth Mother and Adoptive Parents begin the adoption process through the Adoption Agency. That’s where the story gets complicated. Birth Mother would later testify in various hearings that she knew Birth Father was a registered member of the Cherokee Nation. Birth Mother would testify that she reported Father’s Indian heritage on the agency’s adoption form and told Adoptive Parents about Birth Father. But, other evidence at trial would show that there were efforts by Birth Mother to conceal Birth Father’s identity and therefore his Indian status.

During the adoption process, Adoptive Parents hire an attorney for Birth Mother. Birth Mother advises her attorney that Father has Cherokee Indian heritage. And as per the Indian Child Welfare Act, Birth Mother’s attorney contacted the Child Welfare Division of the Cherokee Nation to inquire about Father’s status as an enrolled Cherokee Indian. In the letter written to the Cherokee Nation, Father’s name is inadvertently misspelled and Father’s birth date is misrepresented.

Because of the inaccuracies in the requested information, the Cherokee Nation responds with a letter stating that the tribe could not verify Father’s membership. Based on that letter, Adoptive Parents believe the child is not of Indian descent. Adoptive parents are present for the birth of the child, and the day after the child is born Birth Mother relinquishes her parental rights.

Birth Father only becomes aware of the adoption process some four months after the birth of the child. Birth Father is days away from deploying to Iraq, and is served with court papers entitled “Acceptance of Service and Answer to Defendant.” These papers state that he is not contesting the adoption and that he waives South Carolina’s thirty day waiting period and notice of the hearing. He signs the papers, but upon realizing that Birth Mother had relinquished her rights to the Adoptive Parents, Birth Father requests a stay of the adoption proceedings under the Servicemembers Civil Relief Act and begins litigation to assume custody of the child.

A procedural court battle ensues in both Oklahoma and South Carolina. The trial court finds that the Indian Child Welfare Act applies, and that Birth Father did not voluntarily consent to the termination of his parental rights or the adoption. The court also finds that the Adoptive Parents failed to prove by clear and convincing evidence that Birth Father’s parental rights should be terminated or that granting custody of the child to Birth Father would likely result in serious emotional or physical damage to the child. The Adoptive Parents appeal the case to the South Carolina Supreme Court and the court affirms the trial court’s ruling. The Adoptive Parents, who by this time have cared for the child for two years, are required to turn the child over to Birth Father. The child of course does not know her biological father, nor had she ever lived with him.

Every person who hears about the South Carolina decision asks the same question, “how could this happen?” Some people ask it with the focus on the father who had to wait two years to get a child back that he never understood was being adopted. Others focus on the adoptive parents and how the court could rip a child from the only home she has ever known. The unfortunate answer is that this nasty case happened because the necessary steps to ensure the success of the adoption were not taken.

In every adoption case and in some custody cases, the court must consider the Indian Child Welfare Act (the ICWA). The federal government passed the ICWA in 1978 to address concerns over Indian children being adopted or placed through foster care in non-Indian homes. As explained in the South Carolina decision, Prior to the law being enacted, testimony before Congress highlighted the fact that “90% of the Indian placements were in non-Indian homes” and that such homes may be unknowledgeable about Indian heritage and culture. The federal government passed the ICWA to protect the best interests of Indian Children, to promote tribal sovereignty, and to create minimum standards for removing Indian children to non-Indian placements.

Throughout the various court hearings, evidence in the South Carolina case showed that, but for the fact that Birth Father’s name was misspelled and his date of birth was incorrectly given, the Cherokee Nation would have given notice that Birth Father was Indian and would have intervened in the adoption process. Had the correct information been provided, the likely outcome would have been that Birth Mother would have decided to keep the child, Birth Father would have assumed custody after the child’s birth, or the Cherokee Nation would have found a suitable placement (e.g., extended family members). It is extremely unlikely that the adoption would have continued. However, the wrong information was given and both Birth Father and Adoptive Parents spent thousands of dollars and two years of their lives battling for what they believed to be in the best interest of one small child.

Some commentators have opined that the application of the ICWA in this case is a perversion of the law’s intent. Some are of the opinion that the ICWA dissolved an existing family unit, and in a way that is accurate. The child had lived with the Adoptive Parents for two years.

I am of the opinion that intent of the ICWA was met in this case. The Indian community should not lose out on raising an Indian child simply because the Birth Mother and maybe the adoption agency misrepresented information. When the proper information came to light, the Cherokee Nation intervened as it is permitted to do through the ICWA, and actions were taken to ensure the Indian child remained within the Indian community.

The story is horrifying on multiple levels, and serves as a cautionary tale to any potential adoptive parent. It is unlikely that the facts that lead to the South Carolina Supreme Court’s decision will ever present themselves in exactly the same way again. Therefore, potential adoptive parents should not be discouraged– but they do need to be mindful that the ICWA is complied with in their case.

The first thing adoptive parents must do is enlist the services of a reputable attorney and/or adoptive agency. They should make sure the attorney and/or agency keeps them informed throughout the process. Second, adoptive parents should be cautious when working with birth parents. Birth parents usually have the best intentions; they want their child to be raised in a better home than they could offer. But, if the birth mother is not willing to provide the necessary information, such as the birth father’s ethnicity, then the adoption could later be at risk. If simple answers about the ethnicity, height, weight, and build of the biological parent cannot be given or confirmed, then the adoptive parents may want to reconsider. The desire to expand one’s family can be powerful but so can the heartache of losing a child.

Finally, adoptive parents should educate themselves on the process. Knowledge is power, and having an understanding of the various types of adoptions is empowering and can provide an added sense of comfort.

The adoption lawyers at Livesay & Myers, P.C. represent clients in Fairfax, Manassas, Woodbridge, Prince William County, Stafford, Fredericksburg, Spotsylvania, Alexandria, Arlington, and throughout all of Northern Virginia. If you require assistance with an adoption, contact us to schedule a consultation today.