On June 24, 2013, the Supreme Court of the United States decided Adoptive Couple v. Baby Girl, No. 12-399, holding that the Indian Child Welfare Act of 1978, 15 U.S.C. § 1901-1963, does not prevent the termination of parental rights of a biological Indian father who has never had legal or physical custody of the Indian child and has not developed a family relationship with the child.
Congress enacted the ICWA to address the consequences of a historical pattern of "abusive child welfare practices" that separated Indian children from their families and tribes. The ICWA 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. It also conditions involuntary termination of parental rights on a showing that remedial efforts have been made to prevent the "breakup of the Indian family," and it provides placement preferences for the adoption of Indian children.
Biological Father, a member of an Indian tribe, agreed during the mother's pregnancy to relinquish his parental rights to Baby Girl, who was an Indian under the ICWA. In subsequent adoption proceedings, however, Biological Father sought custody and stated that he did not consent to the adoption. After a trial, the trial court denied the adoption petition and awarded custody of the then 27-month-old child to Biological Father. The South Carolina Supreme Court affirmed, holding that Biological Father was a "parent" under the ICWA, that sections 1912(d) and (f) barred the termination of his parental rights, and that in any event section 1915(a)'s adoption preference rules would apply.
The Supreme Court reversed, holding that, assuming that Biological Father is a "parent" under the ICWA, neither section 1912(d) nor 1912(f) bars the termination of his parental rights. Relying on section 1912(f)'s use of the term "continued custody" and the Bureau of Indian Affairs' guidelines, the Court concluded that the section applies only to the termination of the parental rights of a custodial Indian parent, not those of a biological parent who never had legal or physical custody of the child. The Court similarly read section 1912(d)'s use of the phrase "prevent the breakup of the Indian family" and comparable language in related sections to mean that the section's protections apply only where a relationship already exists between parent and child. Finally, the Court held that the adoption preferences in section 1915(a) apply only where an alternative party with Indian connections also formally applies to adopt the child, a circumstance that did not arise here.
Justice Alito delivered the decision of the Court, which Chief Justice Roberts and Justices Kennedy, Thomas, and Breyer joined. Justice Scalia filed a dissenting opinion. Justice Sotomayor filed a dissenting opinion, which Justices Ginsburg and Kagan joined and which Justice Scalia joined in part.