Victory for adoptive parents.
Loss for biological father .
Can't wait to hear the breakdown on NPR today. They're the only way I can understand SCOTUS decisions
Here's a distillation from the SCOTUS blog
In summary, the Supreme Court said ICWA can't be enforced in this case, because the child was in essence abandoned by her biological father, and was not being forcibly removed from a Native American family to be adopted by a non-NA family.
I'm going to assuming the coverage of what happens to the child will be followed up in coming days.
I feel like the ruling directly negates the entire point of the law in the first place. Sotomayor made a comment that sums it up well:
Sotomayor said the court?s decision turns the law ?upside down, reading it from bottom to top in order to reach a conclusion that is manifestly contrary to Congress? express purpose in enacting ICWA: preserving the familial bonds between Indian parents and their children and, more broadly, Indian tribes? relationships with the future citizens who are ?vital to (their) continued existence and integrity.?"
People forget that Tribal nations are sovereign nations, and that sovereign nations have an interest in protecting their citizens, especially if their citizens have been subject to genocide and forcible removal form their homes.
MagickalNarwhal:Also, I don't have the time to read the entire ruling now but it seems from other articles that the tribe and the extended family can still petition for rights - that this just allows parental rights to be severed in cases of tribal fathers who have never "had custody"...so how is that in the best interest of a child? It isn't eliminating any of the process, it's just allowing birth dad to get excluded, but still prioritizing tribal family? I need to sit down with like 9 glasses of wine and read the whole thing but I from here I fail to see how they have decided in the best interest of Indian children in this case, or anyone for that matter - even potential adoptive parents don't benefit from what I can see if the tribe or extended family can still have custody!
basically what the ruling is saying is that prior to TPR bio fathers and a relevant tribe can petition for rights but that post a properly executed TPR a bio parent can't use ICWA to overturn an adoption.
Also it is on the basis of the well being of one particular child (Veronica) not all NA children.
this ruling is narrow enough it is unlikely to apply to many situations (dad abandons baby, later joins tribe and tries to use ICWA to overturn an adoption)
This was a bad ICWA case and if the Cherokee Tribe had been smart they would've not gotten involved since It does minimize the power of ICWA and in terms of the tribe as a whole they'd have been better off signing off on the adoption and letting Veronica stay where she was and keeping ICWA stronger.
they made a really bad call in backing this crappy case of a Dad who abandoned his daughter until he realized the BM wasn't going to raise her and let him play Daddy when it suited him and as I've said all along that it would its come back to bite them.
They got some really bad PR/Legal advice and it cost all the tribes the strength of ICWA.
fredalina:Here's what I don't get. At the time of the TPR that the dad signed, he had not had custody and thus there was no loss of "continuing custody" or whatever, which seems to be the crux of the decision. However, he has NOW had custody, so what stops him from turning around and using ICWA again?
As I understand it Because it goes back on the merits of the case as it stood when the appeals court heard it, which is with the A Parents having custody so basically he doesn't have "custody"
the court will basically hear the case as it did originally where Dad has TPRd and is contesting it. ICWA is prohibited as an issue since he failed to claim paternity within the timeframe prior to TPR.
My understanding of the ruling (which I'm still processing so may not be exact) is that the court has in essence said that the tribal and parental access to ICWA ends when TPR is duly filed.
i take that to include relatives as I haven't heard any of the discussion by the professionals giving that as an option. that could be an oversite on my part and I am doing reading about it while chasing DD so I fully admit that I could be wrong and his parents (who I think are really behind this) could file.
i do think that would fall under the best interest of the child test and given the GALs testimony I imagine it would still end up with the A parents getting custody since the. Grandparents y are the primary care givers and she found that it would be I Veronica's best interest to be returned to the A parents (though on the grounds that the dad had no real parenting role and no plan for creating one)
hopecounts:My understanding of the ruling (which I'm still processing so may not be exact) is that the court has in essence said that the tribal and parental access to ICWA ends when TPR is duly filed.i take that to include relatives as I haven't heard any of the discussion by the professionals giving that as an option. that could be an oversite on my part and I am doing reading about it while chasing DD so I fully admit that I could be wrong and his parents (who I think are really behind this) could file.
I find this unclear too. In my attempt to read Sotomayer's dissent, I saw that she does state that majority decision did not preclude someone else with a biological connection petitioning for adoption of the girl outside of the ICWA statute. And that it would be "odd ... to exclude from the proceedings possible custodians for Baby Girl, such as her paternal grandparents, who may have well-established relationships with her. "
Yes that part is a little unclear but I think they intentionally left it open for petitions outside ICWA.
which is really OK since that would fall under Best Interest of the Child which is what should be considered.
If the lower court does find that Veronica is best served by remaining with her custodial grandparents (technically Dad) I'm OK with that my issue was the Bio Dad's improper use of ICWA to attempt to undermine the Bio Mom's right to decide what was best for her child when he opted out of their lives.
I'm glad the USSC found that if a man fails to establish paternity or take a parenting role he can't later u fermi e the Mom's decision just because he is Indian and ICWA exists. It does ultimately hurt NA dad's rights if they're unmarried but that's a consequence of taking a bad case and letting it reach the Supreme Court there was very little chance the USSC with its current make up was going to side with ICWA given the facts of this case and the very unsympathetic claimant.
The supreme court said the case has to go back to the lower courts but it didn't terminate the fathers rights nor did it say that Veronica should be sent back. In fact the judges said it would not be in her best interest to be moved again. As for the child she is living with her father and step mother (they have put in to adopt her as have his parents and the tribe) she is not in the primary care of her grandparents so you saying the dad has no real parenting role is incorrect.
Veronica has lived with Brown in Oklahoma since he was awarded custody in late 2011, and removing her from the ?continued custody? of a loving home wouldn?t be in her best interests, Brown?s filing stated.
His attorneys asked that the case be sent back to Family Court in Charleston so that judges could consider ?fresh? evidence. Because 18 months have passed since the custody switch, they argued, much of the information ferreted out during the Family Court trial is stale and wouldn?t serve as a legitimate basis for a custody ruling.
They said she should stay with the ?fit and loving father? she?s with now. The girl also has matured emotionally and physically and has developed social skills with her new family, they said.
Veronica ?has been extremely well cared for and loved by her father and has thrived,? the document stated.