ICWA adoption – Turtle Talk

(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.

Lower court decision here.

Marcia Zug on Slate Supporting the South Carolina SCT ICWA Decision

August 23, 2012Matthew L.M. Fletcher

Here.

An excerpt:

Veronica’s case is deeply troubling, and our hearts should go out to all involved, but the problems it highlights are not problems with ICWA. Rather, her case reveals the problems with ignoring ICWA. This case agonizingly demonstrates the importance of observing ICWA’s placement and termination procedures in order to prevent impermissible adoptions from occurring and then being invalidated later. Everyone involved in Veronica’s adoption knew she was an American Indian child, and if the ICWA requirements had been followed, Veronica would not have been placed with the Capobiancos in the first place. It was because of this mistake that Veronica was 2 years old rather than an infant when she was reunited with her father. The lesson from Veronica’s case is not that ICWA is some obscure loophole that should be closed. Rather, the ongoing court battle demonstrates that ICWA is a pivotal piece of American Indian legislation that cannot be ignored without traumatic consequences.

Cal. COA Decides ICWA Case involving Yurok Traditional Adoption Statute

August 22, 2012Matthew L.M. Fletcher

Here is the opinion:

In re HR

An excerpt:

In 2010, legislation was enacted establishing “tribal customary adoption” as an alternative permanent plan for a dependent Indian child who cannot be reunited with his or her parents. Tribal customary adoption is intended to provide an Indian child with the same stability and permanency as traditional adoption under state law without the termination of parental rights, which is contrary to the cultural beliefs of many Native American tribes. In this case, the Yurok Tribe (the tribe) intervened in the dependency proceedings prior to the jurisdictional hearing and recommended tribal customary adoption as the permanent plan for the minor. The tribe now contends the juvenile court erred in terminating parental rights and selecting traditional adoption as the permanent plan. We disagree with the tribe’s contention that the court was required to select tribal customary adoption as the child’s permanent plan simply because the tribe elected such a plan but conclude that, in the absence of a finding that tribal customary adoption would be detrimental to the minor, the court erred in failing to select such a permanent plan in this case.

Split South Carolina SCT Complies with ICWA and Affirms Return of Child to Cherokee Father

July 26, 2012July 26, 2012Matthew L.M. Fletcher5 Comments

Here is the opinion:

Adoptive Couple v Cherokee Nation

An excerpt:

We do not take lightly the grave interests at stake in this case. However, we are constrained by the law and convinced by the facts that the transfer of custody to Father was required under the law. Adoptive Couple are ideal parents who have exhibited the ability to provide a loving family environment for Baby Girl. Thus, it is with a heavy heart that we affirm the family court order. Because this case involves an Indian child, the ICWA applies and confers conclusive custodial preference to the Indian parent. All of the rest of our determinations flow from this reality. While we have the highest respect for the deeply felt opinions expressed by the dissent, we simply see this case as one in which the dictates of federal Indian law supersede state law where the adoption and custody of an Indian child is at issue. Father did not consent to Baby Girl’s adoption, and we cannot say beyond a reasonable doubt that custody by him would result in serious emotional or physical harm to Baby Girl. Thus, under the federal standard we cannot terminate Father’s parental rights. For these reasons, we affirm the family court’s denial of the adoption decree and transfer of custody to Father.

News coverage here.