Earlier this year, I wrote about a pending case involving the Indian Child Welfare Act. This week, the Supreme Court issued its ruling, and severely narrowed the scope of the law. Essentially, it’s now very hard for Indian parents who do not gain custody of their children to exercise rights under the Act.
One provision of the Act requires, before a court involuntarily terminates an Indian parent’s parental rights, that the court find that “continued custody” by the Indian parent would be harmful to the child. The Supreme Court ruled that because the father in the recent case never actually had custody before adoption proceedings were begun, his rights could be terminated without making a finding about continued custody. The dissenting justices argued that this reading overemphasized the phrase “continued custody” when the important language should have been “termination of parental rights,” which do not necessarily rely on custody previously existing instead of potentially coming into existence later.
A second provision requires, before termination of an Indian parent’s parental rights, that unsuccessful attempts have been made to provide rehabilitative services to “prevent the breakup of the Indian family.” The Court ruled that when the family had never formed, this didn’t apply because there was nothing to break up. The dissenting justices argued that this reading improperly failed to include biological parent-child relationships within the class of families that might be broken up.
The third part of the Act that came before the Court was a requirement that in cases involving adoptions of Indian children, preference be given to members of the child’s extended family, other tribal members, or other Indian families. The Court said that this did not apply to the father himself because he wasn’t trying to adopt the child, only to get custody back as a biological parent. Because the rest of his family, and the Cherokee tribe, backed the father, none of them presented any other potential adoptive parents, leaving only the non-Indian couple that the non-Indian mother had located. This simply doesn’t make sense as a matter of policy.
I think the Court’s ruling was simply wrongly decided. Not only did the majority ignore the spirit of the law and undermine the policy decisions Congress made, but it also ignored part of the letter of the law by a narrow interpretation of “continued custody” and by not applying adoption placement preferences to favor birth parents who do not in fact seek to adopt, but only to vindicate their own parental rights. The Court’s ruling, instead, substituted a policy preference for ensuring that children are placed with adoptive families – exactly what Congress said it was trying to prevent when it enacted the law. I expect that most tribes and intertribal organizations will be lobbying Congress to revise the Act and reverse the Court’s ruling.
Unfortunately, this ruling creates a road map for unscrupulous non-Indian parents: convince, confuse, or coerce the Indian parent into giving up parental rights before they have custody, and then find an adoptive parent whom the Indian parent might not agree to. Act before the Indian parent establishes custody, and the Supreme Court will allow the Indian parent’s rights to be evaded. When one considers the history behind the Act, this ruling is dismaying.
In the meantime, cases involving Indian parents against non-Indian parents may turn into custody battles. I think this is bad for the children, but it may be the only way Indian parents can ensure that they have rights under the Act. Parents in an Indian/non-Indian mixed relationship who foresee relationship difficulties either before or after the birth of a child should consult a lawyer to decide how they want to resolve the problem.