Pennsylvania Family Law and Divorce
Lisa Marie Vari & Associates, P.C.

Adoption and the Indian Child Welfare Act

By Lisa Vari on Google+

Amid the momentous cases decided by the Supreme Court this week ruling on same-sex marriage, there was another important family law-related decision. Our Pittsburgh Family Lawyers today are talking about the case of Adoptive Couple v. Baby Girl. In this case, the Court was asked to adopt a meaning of the Indian Child Welfare Act (ICWA), in the midst of a situation involving termination of parental rights, adoption, and jurisdiction.

What is the Indian Child Welfare Act?

The ICWA was enacted by Congress in 1978 to clamp down on abusive child custody practices by state social workers who were removing Native American children from their homes and tribes at a very high rate. Under the Act, termination of parental rights cannot occur for Native American children apart from a showing that "serious harm" will occur to the child if "continued custody" is allowed to occur. In addition, the Act requires attempts to remedy the situation before adoption, and gives preference to other Native American families in the adoption process.

How did the case get to the Court?

This case, which comes out of South Carolina, involves a mother who decided to put her baby up for adoption. The father was uninvolved during the pregnancy and ultimately agreed to give up his parental rights and provided no financial support at all during the pregnancy or in the four months after the birth. At that time, Mother put the child up for adoption, and notified the father of the impending adoption. Because of his lack of involvement during that time, his consent would normally not be required for the adoption to go forward under South Carolina law. However, Father was a member of the Cherokee nation, and upon receiving Notice of the Adoption, he and his tribe brought suit under the ICWA. Both the trial court and the Supreme Court of South Carolina agreed with Father that the adoption fell under the act.

What did the Court hold?

Father and the Cherokee Nation advocated for a broad interpretation of the Act, arguing that any adoption of a Native American child is governed by the ICWA, with all restrictions applying. This would have the effect of sending it back to the lower Court, and Father most likely regaining custody of the Child. Adoptive Parents argued for the narrow (and ultimately successful) interpretation that the ICWA was only intended to apply to adoptions by state agencies, which is the type of adoption that was contemplated by Congress when drafting the Act. The Court ultimately agreed with Adoptive Parents, which meant that Father's parental rights could be terminated because of his lack of participation with the child, in spite of the provisions of the Act.

What does this mean for Pennsylvania family law?

This could have potentially large effects on the lives of both parents who want to adopt children, as well as parents who put their children up for adoption. If an adoption occurs privately (i.e. not through a state agency) then the provisions of the act would not apply and there is no heightened standard that has to be met for the adoption to proceed.

Contact our Pittsburgh adoption attorneys today to discuss your adoption case!

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