In re T.S.W., Kansas ICWA Case on Finality for Appeal and Placement in Private Adoptions


The Kansas Supreme Court again comes out with strong language in support of ICWA. In addition, the case, which has a complicated procedural history given the actions of the private adoption agency, provides an interesting analysis of what is a “final order” in an ICWA case and a discussion of the collateral order doctrine:

Under the circumstances presented here, we conclude the district court’s order permitting a deviation from ICWA’s placement preferences did not dispose of the entire merits of the case and left open the possibility of future action by the district court with respect to T.S.W.’s placement. Thus, the Tribe has not appealed from a “final order, judgment or decree” under K.S.A. 2011 Supp. 59-2401a(b)(1), and we lack statutory authority to hear this appeal.
But that holding does not end our analysis. Alternatively, the Tribe urges us to exercise jurisdiction under the collateral order doctrine. That doctrine, which we sparingly apply, provides a narrow exception to the final order requirement. It “allows appellate courts to reach ‘not only judgments that “terminate an action,” but also a “small class” of collateral rulings that, although they do not end the litigation, are appropriately deemed “final.” [Citation omitted.]'” Kansas Medical Mut. Ins. Co., 291 Kan. at 611-12 (quoting Mohawk Industries, Inc. v. Carpenter, 558 U.S. ___, 130 S. Ct. 599, 605, 175 L. Ed. 2d 458 [2009]).

This case is also an illustration of the difficulties of ICWA and private adoptions. The adoption agency initially refused to consider any placements provided by the Cherokee Nation if the families couldn’t pay the $27,500 fee:

In this case, we need not extensively consider whether the Agency followed the placement preferences before seeking a deviation from those preferences. It did not. While the Agency made some effort to satisfy the second placement preference when it requested the Tribe provide available adoptive family profiles, the Agency impermissibly qualified its request in at least two ways. First, the Agency provided the Tribe with Mother’s extensive “criteria” for any prospective adoptive family. Second, the Agency specified that prospective adoptive families be able to pay the Agency’s $27,500 fee requirement. And while the Agency eventually indicated a willingness to modify its fee based on an unspecified sliding scale, the parties never agreed as to the parameters of that scale because Mother chose a non-Indian family based on profiles presented to her from the Agency.
Essentially, the Agency grafted its substantial fee requirement as well as Mother’s placement criteria (which ironically specified that the adoptive parents be Caucasian) onto ICWA’s placement preferences. Common sense dictates that ICWA’s placement preferences cannot be undermined in this manner. In fact, the Agency’s actions appear to fly in the face of Congress’ intent in enacting ICWA. See Holyfield, 490 U.S. at 37 (ICWA “‘seeks to protect the rights of the Indian child as an Indian and the rights of the Indian community and tribe in retaining its children in its society’ . . . by establishing ‘a Federal policy that, where possible, an Indian child should remain in the Indian community'” and ensuring that Indian child welfare determinations are not based on a white, middle-class standard that often forecloses placement with an Indian family).

The Court found that the agency and the lower court did not follow the placement preferences of ICWA, even after the Nation provided 17-20 (!) potential adoptive families for the child, and reversed the decision.

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4 Responses to In re T.S.W., Kansas ICWA Case on Finality for Appeal and Placement in Private Adoptions

  1. Mark Fiddler says:

    The problem with this case is that it violated the right of the birth mother to choose a placement, a right protected as her due process liberty interest. So the birth mother thus has to choose between parenting the child herself (she can revoke the consent at any time to any adoptive parent not of her choosing) or consent to a person not of her own choosing. Did Congress really intend that? In any other adoption, the birth mother’s preference is conclusive, so long as the adoptive parents are suitable. The child in these private adoption cases is not “free” to be placed with whomever the court or tribe thinks might be more desirable. After termination, yes, but not in these private adoption cases. This result, not even mandated by ICWA, gives it a bad name.

  2. Kate Fort says:

    Yes, Congress did contemplate this fact pattern as ICWA specifically applies to “voluntary” proceedings, including any adoption of an Indian child. 1903(1)(iv); 1915(a). In addition, the Supreme Court in Holyfield also made it clear ICWA applies to voluntary adoptions.

  3. Rebecca says:

    Intended or not, it does lead to a rather absurd legal result. The child will be returned to the non-Indian biological mother, and the father (who was the Indian parent) will likely be completely uninvolved in the child’s life as the termination of his rights (which I believe was based on unfitness or abandonment) was never appealed.

  4. Pingback: ICWA By The Numbers | Turtle Talk

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