1 background
1.1 indian child welfare act
1.2 case history
1.3 trial court
1.4 state supreme court
1.4.1 dissent
background
indian child welfare act
group of omaha boys in cadet uniforms, carlisle indian school
prior adoption of icwa in 1978, indian children forcibly removed homes , placed in either native american boarding schools or in non-indian foster , adoptive homes. studies conducted in 1969 , in 1974 indicated many 25 35 percent of tribal children being removed homes, , consequently tribal culture. testimony in house committee interior , insular affairs showed in states, per capita rate of indian children in foster care 16 times higher rate non-indians. in cases, bureau of indian affairs (bia) paid states remove tribal children , place them non-indian families , religious groups. congress determined if indian children continued removed indian homes @ rate, tribal survival threatened , stated tribal stability important best interests of child. 1 of factors in judgment that, because of differences in culture, in best interest of non-indian child not in best interest of indian child, due influence of extended families , tribal relationships. indian child welfare act (icwa) enacted in 1978 protect indian tribes , children.
the icwa applies indian children , defined unmarried person under age eighteen , either (a) member of indian tribe or (b) eligible membership in indian tribe , biological child of member of indian tribe. additionally, in case of voluntary adoption of indian child, courts must follow specific guidelines indian birth parents waive parental rights or have them terminated. icwa provides relinquish parental rights, indian parent must:
the indian parent may withdraw consent adoption @ time prior final order, or within 2 years of final order if consent obtained through fraud or under duress. if involuntary termination occurs, must supported evidence beyond reasonable doubt. when consent withdrawn or if icwa procedures not followed, indian child returned indian parent.
tribal rights covered act. tribal courts have exclusive jurisdiction cases arising on indian reservations , concurrent jurisdiction elsewhere. case may removed state court tribal court @ request of tribe unless 1 of indian child s parents object. in case, tribe has right intervene in proceeding , act protect tribal rights of child.
case history
great seal of cherokee nation
dusten brown member of cherokee nation. brown served in united states army @ fort sill, oklahoma. christina maldonado non-indian single mother of two. brown , maldonado became engaged married in december 2008, , maldonado informed brown pregnant in january 2009. on learning maldonado pregnant, brown began press go ahead , marry him, , refused provide financial support until after 2 had married. in may 2009, maldonado broke off engagement text message , cut communications brown. in june, maldonado sent brown text message asking if rather pay child support or relinquish parental rights. brown responded via text message relinquished rights. no child support order in place @ time. furthermore, while laws vary state state, impossible parent, male or female, surrender parental rights without court hearing determines best interest of child. father cannot terminate parental rights contract, less more informal means (such text message).
a few months prior baby s birth, maldonado began work adoption attorney place child matthew capobianco , melanie duncan capobianco of james island, south carolina. adoptive couple provided financial support maldanado during pregnancy , attended baby girl’s birth, adoptive father cut umbilical cord. although oklahoma law requires indian tribe informed if indian child adopted, maldonado s attorney misspelled brown s name , provided incorrect date of birth. result, tribe not notified proposed adoption. after receiving permission oklahoma authorities, based in part on identification of child hispanic rather native american, capobiancos took child south carolina.
four months after birth of child , days before deployment iraq, brown served notice of proposed adoption. brown signed document, believing relinquishing rights maldonado. brown, once realized had signed, tried retrieve document, , after failed, contacted judge advocate general @ fort sill assistance. 7 days after being notified of proposed adoption capobiancos, brown obtained stay of adoption proceedings under servicemembers civil relief act , deployed army unit iraq.
trial court
the adoption case heard in charleston county family court in september 2011. brown contested adoption, , cherokee nation intervened party in own right in case. court denied capobiancos petition adopt child, , ordered child returned brown biological father. under south carolina law, father s parental rights terminated if did not provide pre-birth support , become involved child shortly after birth, court noted icwa preempts state law. on november 25, 2011, court issued ruling, holding that:
the icwa applied , not unconstitutional,
the existing indian family exception inapplicable in case,
brown did not consent termination of parental rights or adoption of child, and
the capobiancos had failed show clear , convincing evidence brown s parental rights should terminated.
on december 31, 2011, capobiancos turned child on brown in accordance trial court order. capobiancos appealed supreme court of south carolina.
state supreme court
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