Indian Child Welfare Act boys in cadet uniforms,
Carlisle Indian School Prior to the adoption of the ICWA in 1978, Native American children could be forcibly removed from their homes, and placed in either
Native American boarding schools or in non-Native American foster and adoptive homes. Studies conducted in 1969 and 1974 indicated that as many as 25–35% of tribal children were being removed from their homes, and consequently from tribal culture. Testimony in the
House Committee for Interior and Insular Affairs showed that in some states, the per capita rate of Native American children in foster care was nearly 16 times higher than the rate for non-Native Americans. In some cases, the
Bureau of Indian Affairs (BIA) paid the states to remove tribal children, and to place them with non-Native American families and religious groups.
Congress determined that tribal survival would be threatened if Native American children continued to be removed from Native American homes at this rate, and stated that tribal stability was as important as the best interests of the child. One of the factors in this judgment was that, because of the differences in culture, what was in the best interest of a non-Indian child was not necessarily what was in the best interest of an Indian child, especially due to the influence of extended families and tribal relationships. In 1978, the Indian Child Welfare Act (ICWA) was enacted to protect Indian tribes and their children. The ICWA applies to "Indian children", defined as "any unmarried person who is under age eighteen and is either: (a) a member of an
Indian tribe, or (b) is eligible for
membership in an Indian tribe, and is the biological child of a member of an Indian tribe." Additionally, in the case of a voluntary
adoption of an Indian child, the courts must follow specific guidelines for the Indian birth parents to waive their parental rights or have them terminated. The ICWA provides that to relinquish parental rights, an Indian parent must: • do so in writing, • do so before a
judge, • who must certify that the parent understood his or her actions, • understands spoken English or has a translator available, and • a relinquishment may not be executed prior to ten days after the child's birth. The Indian parent may also withdraw their consent to an adoption at any time prior to a final order, or within two years of the final order if their consent was obtained through fraud or under duress. If involuntary termination occurs, it must be "supported by evidence beyond a reasonable doubt". Tribal rights are also covered by the act. Tribal courts have
exclusive jurisdiction for cases arising on
Indian reservations and
concurrent jurisdiction elsewhere. The case may be removed from a
state court to a tribal court at the request of the tribe unless one of the Indian child's parents object. In any case, the tribe has a right to intervene in the proceeding and to act to protect the tribal rights of the child. and served in the
United States Army at
Fort Sill,
Oklahoma. Christina Maldonado was a non-Indian single mother of two. Brown and Maldonado became engaged to be married in December 2008, and Maldonado informed Brown that she was pregnant in January 2009. On learning that Maldonado was pregnant, Brown began to press her to go ahead and marry him, and refused to provide any financial support until after the two had married. In May 2009, Maldonado broke off the engagement by text message, and cut all communications with Brown. In June, Maldonado sent Brown a text message asking if he would rather pay child support or relinquish his parental rights. Brown responded via text message that he relinquished his rights. A few months prior to the baby's birth, Maldonado began to work with an adoption attorney to place the child with Matthew Capobianco and Melanie Duncan Capobianco of
James Island, South Carolina. The adoptive couple provided financial support to Maldanado during her pregnancy, and attended Baby Girl's birth (in Oklahoma Although Oklahoma law requires that an Indian tribe be informed if an Indian child is to be adopted, Maldonado's attorney misspelled Brown's name, and provided an incorrect date of birth. As a result, the tribe was not notified about the proposed adoption. After receiving permission from Oklahoma authorities, based in part on the identification of the child as just Hispanic rather than both Hispanic and Native American, the Capobiancos took the child to South Carolina. Four months after the birth of the child, Dusten Brown was served with a notice of the proposed adoption. Brown signed the document, believing that he was relinquishing rights to Maldonado. Brown contested the adoption, and the Cherokee Nation intervened as a party in its own right in the case. The court denied the Capobiancos' petition to adopt the child, and ordered that the child be returned to Brown as the biological father. On November 25, 2011, the court issued a ruling, holding that the ICWA applied and was not unconstitutional. The
"Existing Indian Family" exception was inapplicable in this case; Brown did not consent to the termination of his parental rights or the adoption of his child, and the Capobiancos had failed to show by
clear and convincing evidence that Brown's parental rights should be terminated. The Capobiancos then appealed to the
Supreme Court of South Carolina.
State Supreme Court Chief Justice
Jean H. Toal delivered the opinion of the court on July 26, 2012. The five members of the court split 3–2, with Justices
Costa M. Pleicones and
Donald W. Beatty joining the majority opinion, while Justice
John W. Kittredge, joined by Justice
Kaye Gorenflo Hearn, dissented. The opinion decided three issues: First, whether the Capobiancos had improperly removed the child from Oklahoma; second, whether state law or the ICWA is determinative of Brown's status as a parent; and third, whether the Capobiancos met their
burden of proof to terminate the parental rights of Brown. She noted that at this point, the case was properly before the court, and proceeded to address the second issue. The Capobiancos argued that it takes more than mere biology to invoke the provisions of the ICWA, and under South Carolina law, a father must not only reside with the mother for the six-month period preceding the birth of the child, but also contribute to pregnancy-related expenses in order to have paternity rights. However, the Court determined that the ICWA does not defer to state law, and the trial court properly determined that the ICWA grants Indian fathers greater rights than state law. Toal then turned to the last issue: the trial court's refusal to terminate Brown's parental rights. The Capobiancos could not show that Brown had agreed to consent to the adoption. The court noted that the ICWA set out clear procedural guidelines, and the Capobiancos did not comply with those requirements. The Capobiancos also failed to show by clear and convincing evidence that Brown's parental rights should be terminated. Under the ICWA, prior to terminating an Indian parent's rights to the Indian child, the party seeking to terminate parental rights "shall satisfy the court that active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family, and that these efforts have proved unsuccessful." The court noted that the Capobiancos made no efforts to comply with this requirement of federal law, but had actively sought to prevent the father from obtaining custody since the child was four months old. The court then addressed the
best interests of the child. Toal said, quoting
Mississippi Band of Choctaw Indians v. Holyfield, "Where an Indian child's best interests are at stake, our inquiry into that child's best interests must also account for his or her status as an Indian, and therefore, we must also inquire into whether the placement is in the best interests of the
Indian child," and that this was "based on the fundamental assumption that it is in the Indian child's best interest that its relationship to the tribe be protected." Toal stated that the best interest of the child was to be with her father, which also preserved her tribal affiliation. Finally, Toal addressed the placement requirements of the ICWA, which requires that placement preference be given, in this order, to: 1) another member of the child's family, 2) another member of the child's tribe, and 3) another Indian family. The court stated that neither Maldonado nor the Capobiancos had intended to comply with the statute, and that the Capobiancos could not thereby claim that the breaking of the bond formed by the child with the Capobiancos is grounds to ignore the statute. The court affirmed the decision of the Charleston County Family Court in returning the Indian child to her father, and reiterated that the ICWA preempts state law in the termination of parental rights for Indian parents.
Dissent Justice John W. Kittredge, joined by Justice Kaye G. Hearn, dissented. Kittredge argued that the state standards for best interest of the child should trump those of the ICWA, and concluded that the trial court judge erred in her findings of fact. He noted that Brown had an income of approximately $23,000 in 2010, had paid nothing to assist with pre-birth expenses, and had indicated that he did not intend to do so. In addition, Kittredge stated that the record reflected that Maldonado informed both the adoption agency and the adoption attorney of the child's Cherokee heritage, but the notification to the tribe did not have the correct identifying information for the father. At the child's birth, the Capobiancos were present, and Matt Capobianco had cut the umbilical cord. Kittredge then evaluated the ICWA, noting that South Carolina law did not allow a father in Brown's position to contest an adoption. Brown acknowledged paternity, and a
DNA test conclusively proved that he was the biological father. Because Brown met the definition of an Indian parent, the ICWA did apply to the case. Even if Brown had not acknowledged paternity, the child was still an Indian, and the federal law would apply. However, Kittredge then stated that even though the ICWA applied, Congress did not intend the ICWA to replace state law with regard to a child's best interests. He noted that the Capobiancos provided the child with a loving and stable home. Finally, he would have ruled that termination of Brown's parental rights was in the best interest of the child, and would have reversed the decision of the trial court. ==Supreme Court==