July 26, 2012 South Carolina Supreme Court published opinion

Adoptive Couple v Baby Girl, Birth Father and Cherokee Nation

Couple attempted to adopted a child through a private adoption. The biological father is a registered member of the Cherokee tribe in Oklahoma. Father thought he gave his rights to the biological mother and claimed he did not realize he was consenting to the adoption. The Tribe was unaware of the adopted child’s heritage and did not object to her removal from Oklahoma to South Carolina. The Tribe did intervene in the adoption proceedings in South Carolina based on its belated discovery of biological father’s status. After a hearing, the family court awarded custody to biological father and the child was returned to Oklahoma. On appeal, the Court, 3-2, affirmed. The majority found that it had jurisdiction over the case as Oklahoma courts had declined jurisdiction. It also rejected the “existing Indian family” doctrine which excludes illegitimate Indian children from the protection of the Indian Child Welfare Act. It held biological father was a “parent” under the ICWA as he acknowledged his paternity during the proceedings and established it though DNA testing. It held that biological father did not voluntarily terminate his rights both because the purported surrender document did not comply with ICWA and father’s later objections withdrew any consent. The majority held that involuntary termination was inappropriate as no remedial efforts were undertaken to keep the Indian family together and there was no evidence beyond a reasonable doubt that placing the child in biological father’s care would subject her to serious physical or emotional harm. The majority held that the best interests of the Indian child were best served by her return to custody of her Indian father. Additionally, ICWA gives preference to Indian family members, Tribe members then other Indian tribal members and adoptive couple meets none of these criteria. The dissent argued that biological father had abandoned the child and took every possible step to indicate his utter lack of interest in being a parent. Based on this, the dissent would have terminated his rights under state law. As to ICWA, the dissent argued that the trauma to child from the severing of her bond with her adoptive family satisfied the serious emotional harm element and that remedial efforts here would have been futile. Finally, it rejected as chilling the position that all Indian children should be placed with Indian caretakers without considering the totality of the circumstances. Based on father’s behavior and the bond of the adopting family, the dissent would have found good cause to place the child with the adoptive couple.


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