Invoking tribal ties isn’t justified in this case
By Joan Hollinger, The New York Times
Joan Heifetz Hollinger is lecturer in residence at the University of California, Berkeley, Law School and the author of "Adoption Law and Practice." She wrote an amicus brief in Adoptive Couple v. Baby Girl.
Is it inconsistent with the language and purposes of the Indian Child Welfare Act to allow an Indian biological father who has forfeited any parental rights he might have had under state law to block a non-Indian mother’s voluntary adoptive placement of her newborn child with prospective parents selected by her? Yes. The invocation of the federal law in such circumstances conflicts with its underlying goals and is an unwarranted interference with the child’s liberty interests in remaining with her adoptive family as well as with her mother’s right to serve her child’s best interests by relinquishing her for adoption.
Concerns about maintaining children’s ties to their Indian heritage can be addressed in various ways, including visitation and contact with tribal members.
Enacted to prevent the involuntary removal of children from Indian families by authorities insensitive to tribal culture and childrearing practices, the Indian Child Welfare Act has important safeguards against separating children from their parents' “continued custody.” The law is not intended, however, to allow the precipitous transfer of a child from her stable nontribal custodial family to someone the child has never met, who had refused to provide emotional or financial support to her or her mother and whose behavior disqualifies him from being a “parent” as defined by the law.
Nor does the law preclude a state court from allowing the child to remain in the custody of the adoptive family upon finding that a sudden change of custody would be detrimental to her. Concerns about maintaining children’s ties to their Indian heritage can be addressed in various ways, including visitation and contact with tribal members. The goals of the Indian Child Welfare Act are not well-served when tribal ties are invoked to justify the dismantling of a child’s existing non-Indian family rather than to protect tribal custodial families against the loss of their children.1/24/2013