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Case Highlights Failure
to Follow ICWA Dictates

from the Summer 2012 Adoptalk

by Joe Kroll, executive director, NACAC

“There really are no words to describe the incredible heartbreak, disappointment, and pain we are feeling.” This sentiment was posted online in July 2012 after prospective adoptive parents failed in their bid to retain custody of 2½-year-old Veronica. The toddler left their home and went to live with her Cherokee birth father on New Year’s Eve 2011. In late August, the South Carolina Supreme Court rejected the family’s request for a rehearing.

This case, like other much-publicized contested adoption cases, has inspired impassioned pleas from the families involved, as well as child welfare advocates with varying views. Like the Baby Jessica and Baby Richard cases in the 1990s, the birth father was not immediately informed about the child’s adoptive placement. The difference in this case was that the child’s birth father was an enrolled member of the Cherokee Nation, and child welfare cases concerning American Indian children fall under the Indian Child Welfare Act or ICWA.

Passed in 1978, ICWA was created to curtail child welfare practices that separated far too many Indian children from their families and tribes and to recognize the sovereignty of tribal governments. Before ICWA, 25 to 35 percent of Indian children were removed from their homes, and 85 percent of the children who were removed were placed in non-Indian families.

All contested adoption cases cause heartbreak and trauma for the parties involved. Unfortunately, the pain of this case has led many to propose that ICWA be amended—proposals often based on misinformation about ICWA and the birth father’s actions and intentions.

The South Carolina Supreme Court opinion (No. 27148, filed July 26, 2012) outlines the facts of the case as follows.

Veronica’s birth parents were engaged and lived in Oklahoma when she was conceived, but the relationship soured and Mother broke up with Father in May 2009. Unbeknownst to Father, Mother then made an adoption plan and placed the infant with a South Carolina couple on September 16, 2009, the day after the baby was born.

Although Mother’s attorney contacted the Cherokee Nation about the birth father’s Indian status, the request misreported Father’s birth date and misspelled his name. Then, on forms that govern the transfer of children between states, Mother identified Veronica as Hispanic, not Indian. If her heritage had been reported accurately, Interstate Compact on the Placement of Children staff would have contacted the Cherokee Nation before the infant was allowed to leave Oklahoma.

The South Carolina couple petitioned to adopt in South Carolina on September 18, 2009. Father, however, did not receive notice of the adoption petition until January 6, 2010 when a process server approached him outside a mall near his military base. Father signed the legal papers titled “Acceptance of Service and Answer of Defendant” because he thought the action would relinquish his rights to Mother. When he realized the papers involved adoption, he tried to take them back but the process server prevented him from doing so. Father contacted a lawyer the next day and filed a stay on the adoption on January 11. Three days later, he filed a complaint in an Oklahoma district court to establish paternity, child custody, and support of his daughter.

Father was deployed to Iraq on January 18 and gave his father power-of-attorney rights to pursue the custody case. In March, Father’s Oklahoma filing was dismissed on jurisdictional grounds. In the meantime, the Cherokee Nation had identified Father as a registered member and Veronica as an “Indian Child” under ICWA. On April 7, 2010 the Cherokee Nation filed a Notice of Intervention in the South Carolina case. On April 19, 2010, Father filed an amended complaint to establish paternity and seek custody, noting that ICWA applied to the case.

The South Carolina trial started 16 months later on September 12, 2011, and on Novem­ber 25 the court granted Father custody of his daughter. The prospective adoptive parents appealed to the South Carolina Supreme Court, which heard the case in April 2012. In its July 26 opinion, three of the five high court justices confirmed that certain ICWA provisions supersede state law, and that:

  • Father is a “parent” under ICWA because he established his paternity and sought custody of his daughter.
  • Father’s adoption consent was invalid. ICWA requires that consents be “executed in writing and recorded before a judge of a court of competent jurisdiction and accompanied by the presiding judge’s certificate that the…[parent fully understood]… the terms and consequences of the consent.”
  • The adoption decree can only be granted if Appellants have grounds, under state law and ICWA, for involuntarily terminating Father’s rights.
  • Because the Appellants did not prove beyond a reasonable doubt that “the child will suffer physical or emotional damage if returned to…her biological father,” ICWA would not support termination of Father’s rights.

We are saddened that the prospective adoptive parents had to endure such anguish and heartache in their quest to become parents. But we strongly reject recent calls to amend ICWA in response to this case. Instead, we should all advocate that agencies and attorneys abide by ICWA and other laws designed to protect children, and adhere to laws governing birth fathers’ rights. Had agencies and attorneys carefully followed ICWA from the start, much of the pain could have been avoided. Had the birth father been properly notified about the adoption before placement, everything could have been very different.

When agencies place infants for adoption, they must make every effort to be sure that, whenever possible, both birth parents know about the adoption plan. When an infant’s parent or parents have ties to an American Indian tribe, agencies must contact the tribe before placement to determine if ICWA applies and if the tribe has jurisdiction.

The problem is not with ICWA. The fault lies with those who fail to follow the law’s intent and mandates at the outset of a potential adoption case and continue to ignore the importance of American Indian heritage to children. Indian children have a right to their culture, their traditions, and their tribes.

 

 


North American Council on Adoptable Children (NACAC)
970 Raymond Avenue, Suite 106
St. Paul, MN 55114
phone: 651-644-3036
fax: 651-644-9848
e-mail: info@nacac.org
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