A recent U.S. Supreme Court ruling provides an important victory for the rights of adoptive parents. The decision rejected the attempt by a Native American father to use a “twelve hour” claim under the federal Indian Child Welfare Act (ICWA) to prevent a lawful adoption under state law. In a narrow 5-4 split decision, the justices ruled that the father could not invoke this “trump card” to override the best interest of the child and wishes of the mother who pursued the option of having the child adopted after the father indicated he preferred to have his parental rights terminated than pay child support.
The ICWA was enacted in 1978 because of the widespread practice of children being taken illegally from Indian families by social workers, which ultimately led to the children being placed for adoption. The law was intended to prevent the breakup of Native American families and the decline of tribal populations. The court found that the safeguards afforded by the ICWA do not extend to situations where the parent asserting protection under the act has “abandoned the child” prior to birth and “never had custody.”
Some child welfare advocates urged the court to find that the ICWA required that the child be placed with the biological father because he was 1.2 percent Cherokee and an enrolled member of the tribe in the state where the case was litigated. The case represents an important acknowledgement by the nation’s highest court of the rights of prospective adoptive parents who abide by the process and rules as well as the welfare of the child.
The majority opinion written by Justice Samuel Alito Jr. and joined by the other conservative members of the court and Justice Stephen J. Breyer ruled that the ICWA was not intended as a tool that could be used to take a 27 month old child from the only parents the baby had ever known so that the child could be placed with a father who had sought to relinquish his rights and who had no prior contact with the child. The justices ruling overruled the highest court in the state where the case was heard, which had ruled that the ICWA superceded state adoption law.
The American Association of Adoption Attorneys and the National Council for Adoption along with a guardian ad-litem appointed to advocate for the best interest of the child all supported keeping the child with the prospective adoptive parents. The guardian ad-litem advised the court that the child’s best interest was served by not allowing the adoptive process to be reversed at this stage.
Wichita, KS adoption attorney Thomas C. McDowell has been practicing law for over two decades. We provide legal representation in agency, foreign and step-parent adoption. We offer a free consultation so that we can evaluate your situation so call us today at 316-269-0746 or submit an online case evaluation form.