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No Winners in Adoptive Couple v. Baby Girl Except the Dictionary

By William Peacock, Esq. | Last updated on

There were no winners in this week’s Adoptive Couple decision. On one side, you have a biological father, who despite not taking responsibility initially, has fought for the right to raise his then four-month, now four-year-old child, and has done so since the South Carolina Supreme Court ruled in his favor, citing the Indian Child Welfare Act of 1978.

On the other side, you have the adoptive couple, which supported the biological mother, emotionally and financially, throughout her pregnancy and delivery. They also raised the child initially, and are ready, willing, and eager to take responsibility for the young girl.

In between, you have the dictionary and the plain text of the relevant statutes, which together, point directly in the adoptive parents’ favor.

The majority opinion, penned by Justice Alito, is not ground-breaking or a novel interpretation of the law. The statute was intended to stop social workers and states from taking children out of Native American homes and placing the children with "better" adoptive families. Section 1912(f) plainly conditions removal on a showing of harm from continued custody of the child. Another provision, § 1912(d), requires certain steps to be taken to prevent the breakup of a family.

When the biological father initially waived his rights, gave no support to the mother, and had no custody rights in the illegitimate child under state law, there was no custody. You can't "continue" something that never existed, no matter how hard the dissent tries to argue against the dictionary's definition. Ditto for "breakup" -- you can't "breakup" a nonexistent custodial arrangement.

It's harsh, and sad, that a father's failure to take responsibility for a few months of his life can waive his right to raise his child, but that is the state of the law.

Meanwhile, Justice Thomas, who joined the majority opinion, writes separately to express his doubts as to whether the ICWA was constitutional in the first place, as the Indian Commerce Clause wasn't meant to stretch this far. Sorry, Justice Thomas, but despite your ongoing efforts, none of your colleagues have shown the desire to restrict any interpretation of any commerce clause, Indian, Interstate, Negative, or otherwise.

Then again, it just wouldn't be Justice Thomas if he didn't continue to write separately, expressing unpopular opinions, like a madman screaming in a forest.

Justice Sotomayor, in dissent, mocks "casual reader[s]" of the opinion that think that the case is simple (that's me!). Sotomayor worries that "literalness may strangle meaning" and offers a different interpretation of "continued custody" that depends on the statute as a whole.

She also expresses the worry that that, regardless of this particular father's merits, the court's holding will sweep too broadly and affect the rights of too many noncustodial parents, including those who have visited and supported the child, but lack official custodial rights. She makes an excellent point, yet that hypothetical was not before the court, and it is Congress's duty to revise the law if necessary.

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