\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0For only the second time in the 35-year history of the Indian Child Welfare Act of 1978, 25 U.S.C. §§ 1901-1963 (ICWA), the Supreme Court of the United States has issued an opinion clarifying the requirements for an adoption of an “Indian child.”1 While this heartbreaking—and ongoing—saga began in Oklahoma, its legal origin hails from Charleston, South Carolina.
\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0This article seeks to assist the South Carolina family law practitioner to understand the impact of Adoptive Couple on parental rights under ICWA and the South Carolina Adoption Act (Adoption Act). What follows first is a brief overview of the facts of Adoptive Couple, then a review of the Adoption Act and ICWA as interpreted by Adoptive Couple, and finally, practical guidance for South Carolina lawyers on the current status of parental rights under the Adoption Act and ICWA.
\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0Adoptive Couple v. Baby Girl
\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0This South Carolina case captured the heart and attention of the nation when on December 31, 2011, at the age of 27 months, the child at the heart of this case (Baby Girl), was removed from the custody of her prospective adoptive parents (Adoptive Couple), whom her biological mother (Birth Mother) personally selected for purposes of adoption and with whom Baby Girl had lived since birth, and was then placed into the custody of her biological father, a member of the Cherokee Nation (Biological Father), whom she had never met. The following is a brief account of those facts particularly significant for South Carolina lawyers to be able to identify in practice.
\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0In December 2008, Biological Father, a military service member stationed at Fort Sill, Oklahoma, and Birth Mother, who lived approximately four hours away in Bartlesville, Oklahoma, became engaged to be married.2 At no time did the two ever live together.3 Their relationship deteriorated shortly after learning of Birth Mother’s pregnancy in January 2009 and in fact the engagement was called off by May 2009.4
\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0“It is undisputed that, for the duration of the pregnancy and the first four months after Baby Girl’s birth, Biological Father provided no financial assistance to Birth Mother or Baby Girl, even though he had the ability to do so.”5 Birth Mother, who testified that she was financially struggling as the single parent of two children already, decided to make an adoption plan for Baby Girl.6 Through an adoption agency, Birth Mother selected Adoptive Couple, residents of Charleston who were married in 2005 and have no other children, as the prospective adoptive parents for Baby Girl.7 Adoptive Couple met Birth Mother in August 2009 and began providing financial assistance to her.8 Baby Girl was born in September 2009 in Oklahoma with Adoptive Couple even present in the delivery room.9
\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0Believing that Biological Father was of Cherokee heritage, Birth Mother’s attorney (hired at the expense of Adoptive Couple) inquired with the Cherokee Nation pursuant to ICWA to determine if Biological Father was an enrolled member.10 However, this notice misspelled Biological Father’s name (“Dustin” instead of “Dusten”) and incorrectly stated his birthdate.11 Based upon this inaccurate information, the Cherokee Nation responded that Biological Father was not a member. Adoptive Couple thereafter received approval pursuant to the Interstate Compact on Placement of Children (ICPC)12 and brought Baby Girl home to Charleston, South Carolina.13
\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0Three days after Baby Girl’s birth, Adoptive Couple filed a petition for adoption in the Family Court, Charleston County. The summons and complaint was hand-delivered to Biological Father in January 2010, at which time he signed an “Acceptance of Service and Answer of Defendant” stating he did not contest the adoption.14 However, less than one week later, Biological Father filed his own custody action in Oklahoma and contested the South Carolina adoption proceedings, along with the Cherokee Nation, which ultimately intervened as a party pursuant to ICWA.
\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0On November 25, 2011, the family court denied Adoptive Couple’s adoption petition finding that “Adoptive Couple had not met the heightened burden under [ICWA] of proving that Baby Girl would suffer serious emotional or physical damage if Biological Father had custody.”15 On July 26, 2012, the S.C. Supreme Court affirmed the family court’s decision, holding: (1) ICWA applies, (2) Biological Father is a “parent” under ICWA, (3) ICWA bars the termination of Biological Father’s parental rights, and (4) ICWA commands placement preference for an Indian parent.16 Writing for the majority, Chief Justice Toal noted in particular that the Court was “constrained” by ICWA, that it affirmed the family court order only “with a heavy heart, ” and further opined that “[a]ll of the rest of our determinations flow from this reality [that ICWA applies and confers conclusive custodial preference to Biological Father].”17
\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0On June 25, 2013, the Supreme Court of the United States issued its decision which agreed that ICWA applies and accepted for the sake of argument that Biological Father fits the definition of “parent” under ICWA; however, it reversed the ruling of the state Supreme Court and held that the termination of parental rights provisions under ICWA are inapplicable to a non- custodial Indian parent and that the placement preference under ICWA does not prevent placement with a non-Indian family when no other eligible candidates have sought to adopt the child.18 Following the Supreme Court’s ruling, the State Supreme Court has since further remanded the case to the Family Court “for the prompt entry of an order approving and finalizing Adoptive Couple’s adoption of Baby Girl, and thereby terminating [Biological] Father’s parental rights, ” and transferring custody of Baby Girl to Adoptive Couple.19
\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0The South Carolina Adoption Act
\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0To understand the Supreme Court’s holdings in Adoptive Couple, a brief overview of the Adoption Act and ICWA is in order. The Adoption Act provides the statutory framework for adoption proceedings in South Carolina. As is pertinent to Adoptive Couple, greater attention is given to unwed biological fathers who must proactively seek to maintain and protect their natural parental rights. As adoption attorney James Fletcher Thompson has coined it: the Adoption Act embraces the “biology plus action” concept.20 The Adoption Act follows constitutional precedent that provides that a “biological connection … offers the natural father an opportunity” only that he must then proactively “grasp” in order to “enjoy the blessings of the parent-child relationship and make uniquely valuable contributions to the child’s development.”21 As demonstrated below, an unwed father’s actions determine whether his biological child may be adopted without his consent to (or even his notice of) the proceedings.
\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0Whose consent to an adoption is required? (South Carolina Adoption Act, § 310)
\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0Under the Adoption Act, certain persons must consent to an adoption. Practitioners should clearly differentiate between determining whether a person’s consent is required under the Adoption Act and whether legal grounds exist to otherwise terminate parental rights. 22 When consent is not required, the court may grant an adoption over the objection of that person—and the final decree will have the same effect as terminating parental rights.23 Alternatively, if consent is required, then petitioner must prove grounds for terminating parental rights.
\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0The consent of the adoptee is required for children over 14, with limited exceptions.24 Likewise, the consent of the adoptee’s mother, if living, is almost always required.25 The sole exceptions are found in § 320, which does not require the consent of a parent (a) whose parental rights have been terminated, (b) who is mentally incapable of providing minimally acceptable care, or (c) whose criminal sexual conduct or incest led to the child’s conception. If both parents are deceased, or their parental rights have been terminated or relinquished, then the legal guardian/custodian, child placing agency or person facilitating the adoption must consent.26
\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0As for the consent of the adoptee’s father, the rules differ depending upon whether the adoptee was conceived or born during the marriage of the child’s parents. If so, then the consent of the living father is required.27 If not, then the rules further depend upon when the child is physically placed with the prospective adoptive parents.28
\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0For children placed with prospective adoptive parents more than six months after birth, then the consent of the unwed biological father is only required if he has “maintained substantial and continuous or repeated contact with the child …”29 The Adoption Act expressly deems such “substantial and continuous or repeated contact” to exist where the father … openly lived with the child for a period of six months within the one-year period immediately preceding the placement of the child for adoption, and who during the six-months period openly held himself out to be the father of the child. . . .30 Otherwise, an unwed father must demonstrate such...