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Latest News: Amicus Curiae Activity

Adoptive Couple, v. Baby Girl, a Minor Under the Age of Fourteen Years, Birth Father, and the Cherok

Monday, October 15, 2012  
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Court: United States Supreme Court

Topic: Application of ICWA


A divided South Carolina Supreme Court applied the Indian Child Welfare Act to uphold the removal of a 2 year old girl from her adoptive parents with whom she had lived since birth. After an adoption petition was filed, the alleged father who did not qualify as a legal parent under state law invoked ICWA to block the adoption and sought custody of the child. The trial court found that because DNA testing showed that he was the biological father, ICWA prevented the termination of his parental rights. The adoptive couple has filed a cert petition with the U.S. Supreme Court.

The petition for certiorari argues that review is required because there is inconsistent application of ICWA among the states on 2 issues: (1) Whether a non-custodial parent can invoke ICWA to block an adoption voluntarily and lawfully initiated by a non-Indian parent under state law; and (2) 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. It also argues that South Carolina ruled incorrectly on both issues.

The amicus brief is filed in support of the child and asserts that certiorari should be granted because state courts decisions on each of these two questions are inconsistent and the court should resolve the differences in the conflicting state interpretations. Amici took no position on whether the South Carolina Supreme Court resolved the issues correctly.

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