Adoptive Couple v. Baby Girl

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LII note: The U.S. Supreme Court has now decided Adoptive Couple v. Baby Girl.

Petitioners, Adoptive Couple, decided to adopt a baby girl from a single mother. After Baby Girl's birth, Adoptive Couple began the official adoption process and Birth Father, a member of the Cherokee Nation, signed a form relinquishing his rights to Baby Girl. Later, however, Birth Father claimed that he did not intend to relinquish his rights and sought to invoke the Indian Child Welfare Act ("ICWA") because Baby Girl is of Indian heritage. Both the Charleston County Family Court and the Supreme Court of South Carolina held that Birth Father should have custody of Baby Girl. Adoptive Couple argues that Birth Father does not qualify as a “parent” under the ICWA and, thus, does not have parental rights to stop Baby Girl’s adoption. Furthermore, Adoptive Couple asserts that given the intent of the ICWA and the fact that Baby Girl has no parental relationship to Birth Father or other ties to the Cherokee Nation, the ICWA cannot be applied to oppose her adoption. Respondents Birth Father and the Cherokee Nation claim that Birth Father does meet the “parent” definition of ICWA because he has proven his biological link to Baby Girl and also acknowledged her as his child. The Supreme Court's decision in this case will have an impact on the adoption process and system for children of Indian heritage, their biological parents, and prospective adoptive parents.

Questions as Framed for the Court by the Parties 

Whether a non-custodial parent can invoke ICWA to block an adoption voluntarily and lawfully initiated by a non-Indian parent under state law.

Whether ICWA defines "parent" in 25 U.S.C. § 1903(9) to include an unwed biological father who has not complied with state law rules to attain legal status as a parent.



Under the ICWA, can a non-custodial parent or an unwed biological father prevent a non-Indian parent from pursuing adoption?



Petitioners, Matt and Melanie Capobianco, are the adoptive parents of Baby Girl, a two-year old girl born in Oklahoma on September 15, 2009. Baby Girl's biological parents were not married and did not live together prior to her birth. In fact, in April 2009, a couple of months after the biological mother became pregnant, she and Birth Father stopped communicating, except for a text message in June 2009 in which the biological mother asked if Birth Father would relinquish his rights to the unborn child. Birth Father, Dusten Brown, who is the Respondent in this case and a registered member of the Cherokee Nation, responded to that text message that he would relinquish his rights and the biological mother pursued adoption for the child.

During the adoption process, the biological mother reported Birth Father's membership in the Cherokee Nation on the adoption form as well as informed the adoptive parents, the agency, and her attorney of Birth Father's heritage. The biological mother’s attorney wrote to the Cherokee Nation asking about Birth Father's status as a Cherokee, but he misspelled the father’s name and provided the incorrect birthdate and thus the Cherokee Nation was unable to verify Birth Father's status. On the day that Baby Girl was born, Adoptive Couple were in the delivery room and the next day, the biological mother signed a form relinquishing her parental rights and approving the adoption. After Baby Girl's birth, Adoptive Couple left Oklahoma and returned to their home in South Carolina, filed the adoption action in South Carolina on September 18, 2009, and then notified Birth Father of the action on January 16, 2010. Birth Father signed the adoption papers, but claims that he did not realize he was relinquishing his parental rights when he signed them.

Birth Father then requested a stay of the adoption proceedings and filed a complaint in Oklahoma district court to establish his paternity and custody of Baby Girl, but the action was dismissed. Then in January 2010, the Cherokee Nation determined that Baby Girl was an "Indian Child" under the Federal Indian Child Welfare Act ("ICWA"). Respondents then brought the custody case to the Charleston County Family Court in South Carolina, which determined that under ICWA Baby Girl should be returned to Birth Father. Adoptive Couple appealed the family court's decision. After certifying the case for review, the Supreme Court of South Carolina held that, even though under South Carolina law Baby Girl should remain with Adoptive Couple, because of federal law under the ICWA, Baby Girl belonged in the custody of Birth Father. Adoptive Couple then petitioned for a writ of certiorari to the Supreme Court, which the Court granted.



Petitioners, Adoptive Couple, argue that state law controls the definition of parent and that Birth Father – an unwed parent who relinquished his parental rights to the baby girl – is not a parent under state law. Furthermore, Adoptive Couple asserts that Birth Father did not have custody of Baby Girl under the ICWA and that returning Baby Girl to Birth Father violates the United States Constitution. The Respondents contend, however, that under the ICWA, Baby Girl has to be returned to Birth Father because of her Cherokee heritage. The Supreme Court’s decision will affect the adoption process for children of Indian heritage and the decisions that their biological parents and their prospective adoptive parents make.

Impact on Children of Indian Heritage

Proponents of Adoptive Couple assert that adopted children have a right to a safe, permanent, and loving household and a ruling in favor of the Respondents will not be in the best interest of children of Indian heritage. For example, the Christian Alliance for Indian Child Welfare is concerned about children of Indian heritage being taken from their homes, compelled to live with strangers, and forced into a community that they are unfamiliar with. Similarly, the Guardian ad Litem, the representative of Baby Girl, argues that the rights and best interests of Baby Girl – to be in the stable and safe home that was chosen by her birth mother – were ignored in this case, and worries that if the Supreme Court upholds the lower court's decision, Baby Girl and other children of Indian heritage will suffer emotional or physical harm because of the ICWA. Furthermore, the National Council for Adoption argues that if the Supreme Court supports Birth Father's interpretation of the ICWA, children of Indian heritage could then be easily removed from their adoptive parents, which will hurt their chances at having a prosperous future.

According to supporters of Birth Father and Cherokee Nation, however, to truly protect children, the Supreme Court must interpret the ICWA as the Supreme Court of South Carolina did. The National Indian Child Welfare Association ("NICWA") and the United States stress the importance of the ICWA in protecting the welfare of Indian children. NICWA argues that this case proves that Indian children are still being taken away from their extended families and Indian communities, even with the ICWA in place, and without the full protection of the act this would be the case for even more children. The director of the NICWA, Terry Cross, emphasizes that prior to the ICWA thousands of Indian children were removed from the Indian community and the act helps to ensure that Indian tribes can promote Indian culture and identity in the lives of Indian children, an upbringing that is ultimately beneficial for the children.

Effect on Mothers Considering Adoption

Baby Girl's biological mother asserts that upholding the South Carolina Supreme Court's decision will impinge on a birth mother's right to choose whether to put her child up for adoption. She also argues that such a ruling will further hinder birth mothers' rights to choose what family their child goes to and may arbitrarily take away that right based solely on race or ancestry. The Christian Alliance notes that a ruling in favor of Respondents will have a negative effect on the foster care and adoption system because birth mothers will be reluctant to give up their parental rights for fear that they may put up their child for adoption only to have that child forced to be returned to an absent biological father.

Proponents of the Respondents argue that a biological mother would not have to be concerned about the future of her child if the biological mother followed the appropriate adoption process for a child with Indian heritage. Specifically, these proponents, like Professor Marcia Zug of the University of South Carolina School of Law, note that if biological mothers follow the guidelines of the ICWA, they will have no doubt as to the future of their child if they choose to pursue adoption.

Consequences for Prospective Adoptive Parents

Proponents of Adoptive Couple contend that the Supreme Court's decision will affect the rights of adoptive parents. For example, the Christian Alliance is concerned that prospective adoptive parents will be unwilling to adopt a child with Indian heritage for fear that a biological parents with some Indian heritage may use the ICWA to gain custody of the child. Adoptive couples Bonnie and Shannon Hofer and Esther and Craig Adams, who both had difficulties adopting a child with Indian heritage because of the ICWA, argue that this problem is not unusual and threatens adoptive parents with the loss of their children and they knowledge that their children might be removed to unsafe environments.

Supporters of the Respondent argue again, however, that if the adoption process if completed properly under the ICWA, the adoptive parents will not have a problem adopting children with Indian heritage. According to Mr. Cross, the problem here is not the ICWA itself, but deceptive adoptive practices and illegal adoptions, which can be prevented by following the ICWA guidelines. Similarly, Professor Zug notes that if the law had been followed here, baby girl would not have ended up with her adoptive parents and so in the future, if the law is followed, adoptive parents can be assured that the adoption is legal and that they can maintain custody of their adopted children.

Promotion of a Racial Preference System

Proponents of Adoptive Couple argue that the biological father's interpretation of the ICWA promotes a racial preference system. The Guardian Ad Litem for Baby Girl argues that, under the ICWA as interpreted by the Supreme Court of South Carolina, children with Indian heritage can removed from their adoptive parents solely because a small fraction of their heritage is Indian. According to the Birth Mother, under that interpretation, a biological father can supersede a biological mother's decision solely based on race.

Supporters of Birth Father argue however that a racial system is not being created and the issue before the Supreme Court is a political one. They argue that the ICWA is based on the political status of Indians and that the act is not putting the rights of the Indian community or tribe above the rights of mothers or Indian children, but is trying to balance all the rights of the parties involved. Therefore, the ICWA is not creating a preference system, but a system of balancing rights.



ICWA’s Definition of “Parent” As Applied to Unwed Fathers

Petitioners Adoptive Couple argue that the Indian Child Welfare Act (“ICWA”) does not confer the right to biological fathers who have no legally recognized parental relationship to block the adoption of a child who was never domiciled on the biological father’s reservation or in the legal or physical custody of an Indian parent. As state law governs children-father relationships, Adoptive Couple suggests that South Carolina’s standards for “parent” must be applied to this case. Adoptive Couple claims that under state law, children born out of wedlock are considered solely within the mother’s parental custody. They assert that, in South Carolina, for a biological father to have standing for a lawsuit to stop the adoption of his child, the father must do one of two things to establish his parental rights. The first is that, during the pregnancy and shortly after the child’s birth, the father must openly live with the child or the child’s mother for a continuous period of six months immediately prior to child’s adoption and must openly hold himself out to be the father of the child during the six-month period. The second is that the father must pay a fair and reasonable sum based on his financial ability to support the child or for expenses related to the mother’s pregnancy or child’s birth.

Adoptive Couple further states that the ICWA excludes from its definition of “parent” any unwed father whose paternity has not been acknowledged or established. Without qualifying as a “parent,” the biological father has no standing to participate in or contest adoption proceedings. Adoptive Couple claims a simple DNA test is not enough to establish someone as a “parent” under the ICWA because when the statute was made in 1978, DNA testing was not yet in existence. Furthermore, during the time of the statute’s enactment, most states granted parental status to fathers almost exclusively based on whether the father was married to the mother and not based on whether there was a biological link between the father and the child.

Respondents Birth Father and the Cherokee Nation contend that the ICWA does not require looking to state law for its statutory application. Specifically, they assert that state law does not govern the establishment or acknowledgment of parental status and rights under the ICWA. Birth Father and Cherokee Nation claim that if Congress had wanted the ICWA to refer to state law for establishing or acknowledging parental status, it would have explicitly stated so in the statute. Thus, a lack of interest in or support for Baby Girl during pregnancy and the first four months after birth is not a legally sufficient basis for termination of Birth Father’s rights under the ICWA. They argue that because the Birth Father and his Indian tribe have a close connection to Baby Girl and are available to accept custody of Baby Girl, the ICWA recognizes Birth Father’s rights to control and to have possession of his child.

Additionally, Birth Father argues that his status as a “parent” under the definition of the ICWA was sufficiently proven through a DNA test. He asserts that even if South Carolina’s laws on children-father relationships were to apply to this case, his paternity test and his acknowledgment of a biological link to Baby Girl before she was born are enough to grant him parental rights. He bases these claims on provisions in South Carolina’s paternity laws, rather than its adoption laws, which is what the Petitioners have used to support their arguments. Birth Father also believes that his parental status was reinforced through his pursuit of court proceedings to stop the adoption of Baby Girl. Moreover, even if his status as a “parent” has not been adequately shown, this should not matter as the focus of the ICWA is on Baby Girl’s uncontested status as an Indian child.

Congressional Intent

Adoptive Couple claims that when Congress enacted the ICWA, it never intended that the mere existence of a biological link would be enough to make an Indian person the parent of his non-custodial child; rather, Congress intended for ICWA to define paternity through incorporation of state law. Adoptive Couple further argue that the ICWA was made explicitly to apply to children domiciled in tribal land or connected in a non-biological way to the tribe so as to respect a tribe’s unique political and sovereign status and to prevent the disintegration of Indian families. As such, if the statute were applied to Baby Girl, who has not lived in tribal lands and is not connected with the tribe in any other way, the ICWA would not be achieving its purpose of respect or prevention of familial disintegration in Indian communities; instead, it would be advocating racial classification and discrimination. Such racial classification would violate the U.S. Constitution’s Equal Protection Clause because Indian children would be treated differently from children of other races and given an advantage or disadvantage solely based on race.

Birth Father and the Cherokee Nation claim that the Congressional intent of preserving the integrated status of existing Indian families is no longer a necessary or valid consideration for application of the ICWA. They assert that more and more states are rejecting this aspect of the intent behind the ICWA. Furthermore, contrary to what Adoptive Couple claims, this intent issue is not a significant one and rarely affects adoption proceedings involving the ICWA. As such, the overriding intent, or concern, of the ICWA is that Indian children should remain with others of the Indian community regardless if an immediate family exists for the child within his or her tribe. Birth Father and the Cherokee Nation argue that this is why the ICWA specifically provides preferences for placing an Indian child with his or her immediate family, other members of the child’s tribe, or other Indian families. Essentially, they argue that Congress enacted the ICWA with the intention of giving Indian parents more rights than are available under state law.

Plain Meaning of the ICWA

While the ICWA does not permit the termination of parental rights absent a showing that continued custody of the child by the parent would cause serious emotional or physical damage to the child, Adoptive Couple argues that since the word “continued” is used, this termination provision does not apply to the biological father because he was never in custody of the Baby Girl; therefore, there is no custody to be continued. If the provision were applied to Birth Father, then the ICWA would essentially be allowing automatic transfers of custody based simply on a child’s race because it is often difficult to show that continued custody would result in serious emotional or physical damage. Therefore, minimal consideration should be given to whether granting custody to the biological father would cause serious emotional or physical damage to the Baby Girl. As South Carolina’s law, along with federal law, considers the best interests of the child to be the paramount, primary, and controlling factor in deciding custody disputes, Adoptive Couple asserts that these interests of Baby Girl should receive the most weight.

Birth Father and the Cherokee Nation argue that, according to the plain meaning of the statute, the ICWA applies whenever there is an Indian child who is subject to a child custody proceeding. They argue that before an Indian child may be separated from its Indian parent, the ICWA requires a showing of unsuccessful efforts to provide remedial and rehabilitative programs; such a requirement is aimed at preventing, as much as possible, the breakup of Indian families. As there has not been such a showing made by Adoptive Couple, Birth Father contends that Adoptive Couple cannot legally adopt Baby Girl. Rebutting Adoptive Couple’s argument regarding the word “continued,” Birth Father and the Cherokee Nation assert that if “continued” custody can only mean physical custody, then an unfortunate consequence would result in that the ICWA would not be available to help fathers who were not able to gain physical custody for reasons beyond their control—such as imprisonment or military service.



In deciding this case the Supreme Court will determine the meaning of “parent” under the ICWA and whether, under state law, a non-custodial parent can use the ICWA to prevent a non-Indian parent from pursuing adoption. Based on the statutory definition of “parent,” the Congressional intent of the ICWA, and its plain meaning, Adoptive Couple argues that Birth Father does not have parental rights to prohibit Baby Girl’s adoption. Birth Father and the Cherokee Nation rebut Adoptive Couple’s claims by contending that Birth Father has taken actions to establish his parental rights over Baby Girl and that Baby Girl should be with her Indian tribe because this is the goal of the ICWA. The Supreme Court’s decision in this case will affect the adoption process for children of Indian heritage and the choices that their biological and prospective adoptive parents make.


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