Tag Archive for: Indian Child Welfare Act

Baby Veronica Adoption Case Decided By U.S. Supreme Court

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I have previously written about the adoption case of Baby Veronica.  In this case, a South Carolina court ordered a child to be taken from her prospective adoptive parents’ home and to be placed in her biological father’s home even though the father had abandoned the child and consented to the adoption.  The court’s logic was that, because the child’s father was a member of the Cherokee tribe – and so Baby Veronica was a member of the Cherokee tribe – the Indian Child Welfare Act (“ICWA”) applied.  Accordingly, the South Carolina trial court concluded, the prospective adoptive parents failed to prove that the adoption (i) was both in the child’s best interests and (ii) did not infringe on the rights of the Indian tribe.  The South Carolina Supreme Court affirmed the trial court’s decision.

I wrote in July 2012 that the South Carolina Supreme Court should not have applied the ICWA because the father had abandoned the child, voluntarily waived his parental rights, and consented to the adoption.  I also wrote that the case likely would have been decided differently by Florida courts.

Well, the prospective adoptive parents appealed this matter to the U.S. Supreme Court, and, as it turns out, the majority opinion agrees with me.

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Baby Veronica Adoption Case Goes To U.S. Supreme Court

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In July 2012, I wrote an article on Florida Adoptions and the Indian Child Welfare Act which discussed the case of Baby Veronica.  This is a case in which a biological father who belonged to the Cherokee Indian tribe objected to the adoption of his daughter after he had already signed a consent to the adoption.

In his objection, the biological father cited the Indian Child Welfare Act, a federal law enacted in the 1970’s which states that, when determining whether and adoption for a child who is a member of an Indian tribe should be granted, the Court must take into consideration not only the best interests of the child, but also the best interests of the Native American tribe.

The South Carolina Supreme Court ruled in favor of the biological father, but the prospective adoptive parents have appealed the ruling and the U.S. Supreme Court has agreed to take up the case.  Below is a report from CNN:

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Florida Adoptions and the Indian Child Welfare Act

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When a potential client comes into my office seeking to learn more information about Florida adoption (whether it be stepparent adoption, close relative adoption, second parent adoption, or non-relative adoption), two questions almost always seem to catch the potential client off guard:

  1. Is the prospective adoptee/child a member of an Indian tribe?
  2. Is the prospective adoptee/child eligible to be a member of an Indian tribe?

If the answer to either of those questions turns out to be yes, then a federal law known as the Indian Child Welfare Act (“ICWA”) is triggered and special procedures must be observed. In determining whether an adoption should be granted, a court must not only look at the best interests of the child, but also take into consideration the interests of the child’s Indian tribe. Preference for adoption is to be given to the child’s extended family within that tribe over a non-tribe member non-relative.

A recent South Carolina adoption case involved the Indian Child Welfare Act. The following video from CNN discusses this case of “Baby Veronica” and the impact of the Indian Child Welfare Act on her adoption:

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Section 61.505, Florida Statutes

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Application to Indian tribes.—

(1)A child custody proceeding that pertains to an Indian child, as defined in the Indian Child Welfare Act, 25 U.S.C. ss. 1901 et seq., is not subject to this part to the extent that it is governed by the Indian Child Welfare Act.

(2)A court of this state shall treat a tribe as if it were a state of the United States for purposes of applying ss. 61.501-61.523.

(3)A child custody determination made by a tribe under factual circumstances in substantial conformity with the jurisdictional standards of this part must be recognized and enforced under ss. 61.524-61.540.

History.—s. 5, ch. 2002-65.