Law
11:12 pm
Tue April 16, 2013

Emotions Run High As Supreme Court Hears Adoption Case

Originally published on Tue April 16, 2013 8:42 pm

Emotions boiled over at the U.S. Supreme Court on Tuesday as the justices heard arguments in a case testing the meaning and reach of the Indian Child Welfare Act, known as ICWA.

The 1978 law was enacted after Congress found that more than a third of all Native American children were being taken from their families and given to white adoptive and foster parents.

The question before the court was whether a Native American biological father who gave up his parental rights and refused to provide financial support to the mother and child could later object after the non-Indian mother gave up the child for adoption.

The birth father, Dusten Brown, considers himself Cherokee. The birth mother, Christy Maldonado, is of Hispanic heritage. Maldonado got pregnant while engaged to Brown, but subsequently broke off the engagement. Brown refused to support her or the child and eventually texted Maldonado that he was giving up his parental rights. He says he thought he was turning over his rights to Maldonado and therefore was angry to learn, four months after the birth, that she had put the child up for adoption. He then filed an objection in court and sought custody.

Two years later, the South Carolina Supreme Court ruled that while Brown would have had no rights under state law, the Indian Child Welfare Act trumped state law. The court ordered the adoptive parents to turn the little girl, by then 2 years old, over to Brown.

The Father's Rights

On Tuesday, emotions were pretty raw inside the Supreme Court chamber. That's not particularly surprising, given that two of the justices — Chief Justice John Roberts and Justice Clarence Thomas — have adopted children.

But it was Justice Sonia Sotomayor who jumped in feet first, repeatedly cutting off the adoptive parents' lawyer, Lisa Blatt, before Blatt could answer a question.

Finally the chief justice silenced Sotomayor, saying, "Could I hear her answer, please!"

Blatt argued that Brown could not invoke ICWA to get custody of his daughter. He had "no legal rights whatsoever," she said, because he had given them up and failed to provide any financial support.

Justice Antonin Scalia disagreed, saying, "This guy is the father of the child, and they're taking the child away from him even though he wants it."

Blatt replied that the birth father, who had not had any contact with the child and provided no financial support, had "a biological link that under state law was equivalent to a sperm donor."

But "this isn't state law," countered Scalia — it's a federal statute that uses "expansive" language to define the Indian family and to prevent its breakup.

Sotomayor took a similar view, asking, "If the choice is between a mother, a biological father or a stranger, and if the father's fit, why do you think" that the federal statute requires the child to be given to a stranger — namely, the adoptive parents?

The only stranger here, shot back Blatt, was the birth father, "who expressly repudiated all parental rights."

Justice Ruth Bader Ginsburg challenged Blatt's characterization, noting that the birth father said he only intended to surrender his custodial rights to the mother, not to adoptive parents, and that when he found out about the adoption, he objected.

Nonetheless, Blatt argued, Congress did not intend for ICWA to reach a situation like this one, where there was no existing Indian family with custody prior to the adoption. Applying ICWA to this adoption dispute, she said, would amount to "conscripting other people's children to grow the tribal population based solely on a biological link."

A Focus On Biology?

Following Blatt to the lectern was lawyer Paul Clement, representing the guardian ad litem appointed by the state court to determine the child's best interest. The state courts had misread ICWA, he maintained. And if indeed there were such preferences for noncustodial Indian parents under the law, it would amount to an unconstitutional racial classification.

Under the state court's interpretation, said Clement, ICWA moves the inquiry away from the child's best interests to focus instead on biology, the birth father and race — namely, that the child has 1 percent Indian blood.

Not so, said lawyer Charles Rothfeld, representing the father. Brown had been found a "fit, devoted and loving father" to his other children, and by the terms of the statute, that means he should be awarded custody.

Pressed by the chief justice, Rothfeld said that it doesn't matter how large or small a child's Indian heritage is because under ICWA, an adoption cannot go forward if a biological parent wants custody and is not a threat to the emotional or physical safety of the child.

Troubled by Rothfeld's contention, Justice Stephen Breyer noted that the father here appears to have "three Cherokee ancestors at the time of George Washington's father." And if you accept that view, said Breyer, "a woman who is a rape victim" could be at risk of having her child taken and given to the Indian father, who "probably just got out of prison."

Rothfeld swiftly replied that such a father could be shown to be unfit to have custody.

ICWA, he noted, was aimed at preventing the breakup of Indian families, and "there unquestionably was an [Indian] family here in the ordinary sense," including grandparents.

A Call For King Solomon And A Warning

At this point in the argument, Rothfeld seemed to become irrelevant as the justices battled it out.

"He had offered to marry the mother, and she rejected that," Scalia said.

Ginsburg interjected that she thought that there was some "ambiguity" about that.

Rothfeld chimed in to say that Brown "was excited by the pregnancy, was looking forward" to the child.

Roberts said, sarcastically, "He was excited, but ... he paid nothing during the pregnancy and nothing at the time of the birth" to support the child or the mother.

Justice Anthony Kennedy at this point seemed to call a timeout, wishing wistfully for the assistance of King Solomon.

Instead, as Kennedy observed, "What we have here is a question of a federal statute which ... displaces the ordinary best interest [of the child] determinations of the state courts."

If anyone thought that moment of quiet consideration might be the last word, they were mistaken.

In rebuttal, Blatt, the lawyer for the adoptive parents, had a warning for the justices. If you rule in favor of the father, she said, "you're basically banning the interracial adoption of abandoned Indian children. There's not a single adoptive parent in their right mind who is going to ... go through these Kafkaesque hoops."

The court's decision in this case, she told the justices, is going to apply to other absentee Indian fathers who have impregnated non-Indian women. These women, she said, will be rendered "second-class citizens" with "inferior rights," and "you're basically relegating the child ... to a piece of property with a sign that says 'Indian, keep off, do not disturb.' "

After the argument, Indian rights groups hotly disputed that notion, saying the ICWA has worked well for 35 years.

A decision in the case is expected by the end of June.

Copyright 2013 NPR. To see more, visit http://www.npr.org/.

Transcript

ROBERT SIEGEL, HOST:

Today at the Supreme Court, emotions boiled over. The case involved the fate of an adopted American Indian baby girl under the Indian Child Welfare Act. The 1978 law was enacted after Congress found that more than a third of all Indian children were being taken from their families and given to white adoptive and foster parents.

NPR legal affairs correspondent Nina Totenberg has more on today's arguments.

NINA TOTENBERG, BYLINE: Christy Maldonado's ethnic background is Hispanic. Dusten Brown considers himself Cherokee. When Christy became pregnant and refused to marry Dusten, he refused to support her or the child and gave up his parental rights. He said later that he thought he was relinquishing those rights to Christy, and when he learned that she had given up the child for adoption, he went to court to get custody.

Two years later, the South Carolina courts ruled that the Indian Child Welfare Act, ICWA, trumped state law and ordered the adoptive parents to turn the child over to Dusten.

At the U.S. Supreme Court today, emotions were pretty raw. Not particularly surprising, given the fact that two of the justices, Chief Justice Roberts and Justice Thomas, have adopted children. But it was Justice Sotomayor who jumped in feet first, repeatedly cutting off the adoptive parents' lawyer, Lisa Blatt. Finally, the chief justice silenced Sotomayor, saying could I hear her answer, please?

Blatt said that Dusten Brown had no rights because he'd given them up.

Justice Scalia: This guy is the father of the child, and they're taking the child away from him even though he wants it.

Replied Blatt: He has a biological link that under state law was equivalent to a sperm donor.

Justice Scalia: This isn't state law. This is a federal statute, which uses expansive language to define the Indian family and to prevent its breakup.

Justice Sotomayor: If the choice is between a mother, a biological father or a stranger, and if the father's fit, why would you think that the federal statute requires the child to be given to the stranger, the adoptive parents?

The only stranger here, shot back Blatt, was the birth father.

Following Blatt to the lectern was lawyer Paul Clement, representing the guardian ad litem appointed by the state court to determine the best interests of the child. The state courts had misread ICWA, he maintained, otherwise the law would amount to an unconstitutional racial classification that changes the inquiry away from the child's best interests and focuses instead on biology and racial heritage.

Not so, said lawyer Charles Rothfeld, representing the father. Dusten Brown had been found fit. He was a loving and caring father to his other children. And by the terms of ICWA, that means he should be awarded custody.

Pressed by the chief justice, Rothfeld said that it doesn't matter how large or small a child's Indian heritage is - here it was 1 percent - an adoption cannot go forward under ICWA if a biological parent wants custody and is not a threat to the emotional or physical safety of the child.

Justice Breyer: If you accept that view, a woman who's a rape victim would face the risk of having her child taken and given to the Indian father who probably has just gotten out of prison.

Rothfeld replied that such a father could be shown to be unfit. ICWA, he went on, was aimed at preventing the breakup of Indian families. And here, there unquestionably was an Indian family in the ordinary sense, including Indian grandparents.

At this point in the argument, Rothfeld seemed to become irrelevant as the justices battled it out.

Justice Scalia: He offered to marry the mother, and she rejected that.

Justice Ginsburg: There was some ambiguity about that.

Chief Justice Roberts: He paid nothing during the pregnancy and nothing at the time of the birth to support the mother or child.

Justice Kennedy seemed to call a time-out, wishing wistfully for the assistance of King Solomon. Instead, as Kennedy observed, what we have here is a question of a federal statute which displaces the ordinary "best interests of the child" determinations made by the state courts.

If observers thought that moment of quiet consideration might be the last word, they were mistaken.

In rebuttal, Lisa Blatt, the lawyer for the adoptive parents, had a warning for the court: If you rule in favor of the father, she said, you're basically banning the interracial adoption of abandoned Indian children because no non-Indian adoptive parents are going to go through these Kafkaesque hoops.

Your decision is going to apply to any other absentee Indian father who has impregnated a non-Indian woman. The women will be second-class citizens with inferior rights, and you're basically relegating the child to a piece of property with a sign that says: Indian - keep off.

Nina Totenberg, NPR News, Washington. Transcript provided by NPR, Copyright NPR.