south carolina supreme court building
chief justice jean h. toal delivered opinion of court on july 26, 2012. 5 members of court split 3-2, justices costa m. pleicones , donald w. beatty joining majority opinion, while justice john w. kittredge, joined justice kaye g. hearn, dissented. opinion decided 3 issues: first, whether capobiancos had improperly removed child oklahoma; second, whether state law or icwa determinative of brown s status parent; , third, whether capobiancos met burden of proof terminate parental rights of brown.
toal noted capobiancos correct removal of child oklahoma did not create unsafe environment child, incorrect on legal issue. had oklahoma been notified indian child, cherokee nation have been alerted, , child s interests member of tribe have been protected. noted @ point, case before court, , proceeded address second issue.
the capobiancos argued takes more mere biology invoke provisions of icwa, , under south carolina law, father must not reside mother six-month period preceding birth of child contribute pregnancy-related expenses in order have paternity rights. however, court determined icwa not defer state law, , trial court determined icwa grants indian fathers greater rights state law.
toal turned last issue, trial court s refusal terminate brown s parental rights. capobiancos not show brown had agreed consent adoption. court noted icwa set out clear procedural guidelines , capobiancos did not comply requirements. capobiancos failed show clear , convincing evidence brown s parental rights should terminated. under icwa, prior terminating indian parent s rights indian child, party seeking terminate parental rights shall satisfy court active efforts have been made provide remedial services , rehabilitative programs designed prevent breakup of indian family , these efforts have proved unsuccessful. court noted capobiancos made no efforts comply requirement of federal law, had actively sought prevent father obtaining custody since child 4 months old.
the court addressed best interests of child. toal said, quoting mississippi band of choctaw indians v. holyfield, indian child s best interests @ stake, our inquiry child s best interests must account or status indian, , therefore, must inquire whether placement in best interests of indian child, based on fundamental assumption in indian child s best interest relationship tribe protected. toal stated best interest of child father, preserved tribal affiliation.
finally, toal addressed placement requirements of icwa, requires placement preference given, in order, to: 1) member of child s family, 2) member of child s tribe, , 3) indian family. court stated neither maldonado nor capobiancos had intended comply statute, , capobiancos not thereby claim breaking of bond formed child capobiancos grounds ignore statute.
the court affirmed decision of charleston county family court in returning indian child father, , reiterated icwa preempts state law in termination of parental rights indian parents.
dissent
justice john w. kittredge, joined justice kaye g. hearn, dissented. kittredge argued state standards best interest of child should trump of icwa, , concluded trial court judge erred in findings of fact. noted brown had income of approximately $23,000 in 2010, had paid nothing assist pre-birth expenses, , had indicated did not intend so. in addition, kittredge stated record reflected maldonado informed both adoption agency , adoption attorney of child s cherokee heritage, notification tribe did not have correct identifying information father. @ child s birth, capobiancos present, , matt capobianco cut umbilical cord.
kittredge evaluated icwa, noting south carolina law did not allow father in brown s position contest adoption. brown acknowledged paternity, , dna test conclusively proved biological father. because brown met definition of indian parent, icwa apply case. if brown had not acknowledged paternity, child still indian , federal law apply. however, kittredge stated though icwa applied, congress did not intend icwa replace state law regard child s best interests.
kittredge concluded brown had abandoned child , should therefore not allowed contest adoption. noted capobiancos provided child loving , stable home. finally, have ruled termination of brown s parental rights in best interest of child, , have reversed decision of trial court.
cite error: there <ref group=fn> tags on page, references not show without {{reflist|group=fn}} template (see page).
Comments
Post a Comment