The Indian Child Welfare Act of 1978 (ICWA), 25 U.S.C. §§ 1901-63, applies to state custody proceedings involving an Indian child. A dozen state courts of last resort are openly and intractably divided on two critical questions involving the administration of ICWA in thousands of custody disputes each year:
(1) Whether a non-custodial parent can invoke ICWA to block an adoption voluntarily and lawfully initiated by a non-Indian parent under state law.
(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.
DECISIONDecided June 25, 2013 HOLDING
Contrary to the State Supreme Court’s ruling, we hold that 25 U. S. C. §1912(f )—which bars involuntary termination of a parent’s rights in the absence of a heightened showing that serious harm to the Indian child is likely to result from the parent’s “continued custody” of the child—does not apply when, as here, the relevant parent never had custody of the child. We further hold that §1912(d)—which conditions involuntary termination of parental rights with respect to an Indian child on a showing that remedial efforts have been made to prevent the “break up of the Indian family”—is inapplicable when, as here, the parent abandoned the Indian child before birth and never had custody of the child. Finally, we clarify that §1915(a),which provides placement preferences for the adoption of Indian children, does not bar a non-Indian family like Adoptive Couple from adopting an Indian child when no other eligible candidates have sought to adopt the child.We accordingly reverse the South Carolina Supreme Court’s judgment and remand for further proceedings.
ALITO, J., delivered the opinion of the Court, in which ROBERTS, C. J., and KENNEDY, THOMAS, and BREYER, JJ., joined. THOMAS, J., and BREY-ER, J., filed concurring opinions. SCALIA, J., filed a dissenting opinion. SOTOMAYOR, J., filed a dissenting opinion, in which GINSBURG and KA-GAN, JJ., joined, and in which SCALIA, J., joined in part.
ORAL ARGUMENTArgued April 16, 2013
CERTIORARI STAGEGranted January 4, 2013
Certiorari Stage Documents
Petition for Certiorari (pdf download)
Brief in Opposition of Guardian ad Litem (pdf download)
Brief in Opposition of Birth Father and Cherokee Nation (pdf download)
Petitioner’s Reply (pdf download)
Other Certiorari Stage Documents
Amicus Curiae Brief of American Academy of Adoption Attorneys supporting Petition for Certiorari (pdf download)
Amicus Curiae Brief of Birth Mother supporting Petition for Certiorari (pdf download)
Amicus Curiae Brief of National Council for Adoption filed supporting Petition for Certiorari (pdf download)
Amicus Curiae Brief of Professors Joan Heifetz Hollinger, et al. supporting Respondent Baby Girl (pdf download)
Amicus Curiae Brief of California State Association of Counties, et al. supporting Petition for Certiorari (pdf download)
Supreme Court of South Carolina
Decided July 26, 2012
|April 16, 2013||Emotions Run High As Supreme Court Hears Adoption Case||Nina Totenberg||NPR|
|June 25, 2013||Supreme Court gives 1% Cherokee girl to adoptive parents||Richard Wolf||USA Today|