Baby Veronica’s Saga Continues

056The United States Supreme Court handed down its decision this morning in Adoptive Couple v. Baby Girl or the Baby Veronica case as it is known here in Charleston.  The Court reversed the decision of the South Carolina Supreme Court and remanded the case for “further proceedings.”

What was the question before the Court?  The issues before the Court were: ” (1)  Whether a non-custodial parent can invoke ICWA to block an adoption voluntarily and lawfully initiated by a non-Indian parent under state law. and (2) Whether ICWA defines “parent” in 25 U.S.C. § 1903(9) to include an unwed biological father who has not complied with state law rules to attain legal status as a parent.”

How did the Court answer those questions?  In a 5-4 decision, with concurring opinions appearing in both the majority and dissent, the Court examined the legislative history via H.R. Rep. 95-1386 (1978) and definitions from the American Heritage Dictionary, Oxford English Dictionary, and Webster’s Third New International Dictionary. The majority scrutinized and parsed the language of the Indian Child Welfare Act, focusing upon the legislative intent.  The Court stated that “…the statutory text expressly highlights the primary problem that the statute was intended to solve:  ‘an alarmingly high percentage of Indian families [were being] broken up by the removal, often unwarranted, of their children from them by nontribal pubic and private agencies.'”

Is Baby Veronica returning to Charleston?  Possibly.

According to the Court, the Indian Child Welfare Act, 25 U.S.C. Section 1912(f), is not applicable in this particular case because the “relevant parent never had custody of the child.”  Examining Section 1912(d), the Court  concluded that the statute’s mandate to “…show(ing) 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 the majority concluded that Section 1915(a) did 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.”

The majority stated that “…[i]t is undisputed that, had Baby Girl not been 3/256 Cherokee, Biological Father would have had no right to object to her adoption under South Carolina law.”

What happens next?  Since the case was remanded to the South Carolina Supreme Court, it seems likely that the South Carolina Supreme Court will send the case back to the Charleston Family Court.  The Family Court could finalize the adoption or conclude that the biological father’s parental rights were not properly terminated.  More court proceedings will ensue before it is finally decided where Baby Veronica will reside.  To assure stability for the child, one hopes these decisions occur quickly.

Did the Court uphold the Indian Child Welfare Act?  Yes the Court upheld the Act, concluding only that the facts of this particular case did not fit the legislative intent of the Act.

Can it happen again?  Yes as history demonstrates, adoptions gone awry will always be with us.   During oral arguments, Justice Kennedy stated “If we could appoint King Solomon, who was the first domestic relations judge, as special master, we would do it.  But we can’t.”    Remember Baby Jessica?

Stay tuned.

About Lisa Smith-Butler

Associate Professor of Law Charleston School of Law 385 Meeting St., Suite 322B Charleston, S.C. 29403 843.377.2144
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