The South Carolina adoption case of “Baby Veronica” has been in the news for months.  This heartbreaking case includes important information for every prospective adoptive parent, adoption agency, and attorney who handles adoption cases in every state.

Indian Child Welfare Act dictates decision in Baby Veronica case.   

On July 26, 2012, the South Carolina Supreme Court ruled in favor of the biological father in a lengthy 3-2 decision.  The majority opinion written by Chief Justice Toal focuses on the requirements of the Federal Indian Child Welfare Act, 25 U.S.C. § 1901, et seq.  (“ICWA”).  The decision, which has not yet been released in its final form for publication, is known as Adoptive Couple v. Baby Girl, Case No. 27148.  The facts as presented in this article are taken from the Supreme Court opinion.  

Baby Veronica is an “Indian child” within the meaning of the ICWA.   

The bottom line of the Supreme Court’s decision is that for an Indian child, “the dictates of federal Indian law supersede state law where the adoption and custody of an Indian child is at issue”.   (majority opinion, Chief Justice Toal)  Since the biological father did not consent to Baby Veronica’s adoption, and the Court cannot say beyond a reasonable doubt that custody with the father would result in serious emotional or physical harm to Baby Veronica, then under the federal law the South Carolina court cannot terminate the father’s parental rights.  The Supreme Court of South Carolina affirmed the family court judge’s order denying the adoption and ordering the transfer of the child to the biological father.

Baby Veronica case made national news.   

The South Carolina adoption case of Baby Veronica has garnered national attention.  Amicus curiae briefs were filed with the South Carolina Supreme Court by the American Academy of Adoption Attorneys, the Catawba Indian Nation, the North American Council on Adoptable Children, the Child Welfare League of America, the National Indian Child Welfare Association, and the Association on American Indian Affairs.

Private adoption agency placed the child with SC adoptive couple. 

The case involves a contest over the private adoption of a baby girl born in Oklahoma to unwed parents.  The James Island, South Carolina, adoptive parents worked through a Christian adoption agency after seven failed in vitro fertilization attempts.  The biological mother already had two children and as a single mother decided, while still pregnant, that she wanted to give this child up for adoption.  The adoptive parents were in the delivery room when Baby Veronica was born, and the adoptive father cut her umbilical cord.  The mother signed surrender papers the next day.  The adoptive parents took baby Veronica home to South Carolina within eight days, after receiving ICPC (Interstate Compact on Placement of Children) approval to remove her from the State of Oklahoma.  Baby Veronica lived in South Carolina as the child of adoptive parents for more than two years – from September 2009 until December 31, 2011.

The adoptive mother has a Master’s Degree and a Ph.D. in developmental psychology and develops therapy programs for families who have children with behavior problems.  The adoptive father is an automotive body technician working for Boeing.  The Supreme Court majority opinion acknowledges that the adoptive couple are “ideal parents who have exhibited the ability to provide a loving family environment for Baby Girl.”

Biological father of Baby Veronica a member of Cherokee Nation. 

The biological father of Baby Veronica is a member of the Cherokee Nation.  He was serving on active duty at Fort Sill, Oklahoma, at the time of the baby’s birth, about four hours away from his parents and the biological mother.  Although there was conflicting testimony from the biological father and mother at trial, the evidence was that mother sent a text message to the father asking if he would rather pay child support or surrender his parental rights.  He replied by text that he would relinquish his rights.   He testified that she never told him she was giving the child up for adoption.  The father did not provide any financial support to the mother during her pregnancy or delivery. 

As part of the adoption process, the adoptive parents hired an attorney to represent the mother’s interests.  The attorney wrote to the Child Welfare Division of the Cherokee Nation inquiring about the father’s status as an enrolled member of the Cherokee Nation.  The letter stated that the father was “1/8 Cherokee, supposedly enrolled”, but misspelled the father’s first name (“Dustin” instead of “Dusten”) and included an incorrect birthdate.  The Cherokee Nation responded that they could not verify Father’s membership in the tribal records, but that “any incorrect or omitted family documentation could invalidate this determination”.  [quotes are from the Supreme Court decision.]  

The adoptive parents filed an adoption petition in Charleston County, South Carolina, three days after the baby was born.   The biological father was not notified or served with the petition until almost four months later, just a few days before he was scheduled to deploy to Iraq.    He signed a consent when he was served by a process server outside a mall near the military base, but he later testified that he thought he was surrendering the child to the mother and he tried to take the papers back once he realized what he had signed.

Within five days, in January 2010, the father contacted a lawyer and requested a stay of the adoption proceedings under the Servicemember’s Civil Relief Act (“SCRA”).   He also filed a petition in Oklahoma to establish paternity, custody, and support of the baby.  He named the mother and adoptive parents as defendants.   His petition incorrectly stated that the child did not have Native American blood, so the Federal Indian Child Welfare Act did not apply.  The Father deployed for Iraq on January 18, 2010 and remained there until December 26, 2010.  His father had a power of attorney in his absence.   The Oklahoma case was dismissed for lack of jurisdiction at the adoptive parents’ request.

Baby Veronica determined to be an Indian child. 

The Cherokee Nation identified the father as a registered member of the tribe in January 2010 and determined that the baby was an “Indian child” as defined under the Federal Indian Child Welfare Act.   The adoptive parents amended their South Carolina adoption petition in March 2010 to acknowledge that the Father was a member in the Cherokee Nation.  The Cherokee Nation filed a notice of intervention in the South Carolina action in April 2010.  In May 2010 the South Carolina family court ordered a paternity test, which confirmed the biological father’s identity.  The Court lifted the automatic stay under the SCRA, and the father filed an answer stating he did not consent to the adoption and seeking custody of Baby Veronica.

The family court in Charleston determined that the ICWA applied to the case.  A guardian ad litem (GAL) represented the interest of the child during the four-day trial in September 2011.  

SC family court decides to return the 2+ year old child to father. 

In December 2011, the South Carolina family court judge denied the adoption and ordered the adoptive parents to turn the child over to her biological father.   The father and his parents left for Oklahoma with the child on New Years Eve 2011.  The child has resided since that time with the biological father and his parents in Oklahoma.

Local support for SC adoptive parents.

Within weeks, the Post and Courier reported that “Save Veronica” supporters of the adoptive parents had delivered a petition with more than 20,000 signatures to both federal lawmakers and to Governor Nikki Haley.   The “Save Veronica Rose” facebook page had more than 7,000 followers.   In January 2012 the adoptive parents appealed to the Supreme Court of South Carolina. 

Supreme Court of South Carolina affirms the family court decision.

The July decision by the Supreme Court of South Carolina is the end of the line for the adoptive parents.  Sadly for them, the decision was a close 3-2 split decision, with 2 justices in favor of terminating the biological father’s rights.

ICWA has special adoption rules for adoption of Indian child. 

What is the significance of this decision?  It underscores the importance of the Federal Indian Child Welfare Act to any adoption involving an Indian child.  The ICWA defines an Indian child as “any unmarried person who is under age eighteen and is either (a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe.”  25 U.S.C. § 1903(4).

Preference for placement with other Indian families. 

The law goes on to state that for any adoptive placement of an Indian child, preference shall be given, in the absence of good cause to the contrary, to a placement with (1) a member of the child’s extended family; (2) other members of the Indian child’s tribe; or (3) other Indian families.  25 U.S.C. § 1915(a).

More difficult to terminate parental rights of parent of Indian child.   

The ICWA also mandates that state courts apply heightened federal requirements before terminating parental rights of the parents of an Indian child.  Termination of parental rights requires evidence beyond a reasonable doubt, including testimony of qualified expert witnesses that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child.  ICWA § 1912(f).  This “beyond a reasonable doubt” standard is a higher burden of proof than the “clear and convincing evidence” standard usually applicable to terminations.  

The Indian tribe has independent interest in adoptions of Indian child. 

The ICWA also recognizes that the tribe itself has interests in custodial decisions relating to Indian children, not just the parents.  That is why the Cherokee Nation was able to intervene as a party in the Baby Veronica adoption case.  The majority opinion explains the rationale behind the federal statute and the policy reasons for the tribe having rights.

Extended time to withdraw consent to adoption. 

Significantly, the ICWA provides that a parent of an Indian child may withdraw his or her consent to adoption “for any reason at any time prior to the entry of a final decree of termination or adoption, as the case may be, and the child shall be returned to the parent.”  ICWA § 1913(c).

Proper termination of parental rights is always important to a successful adoption.  In the case of a child who may meet the definition of  an Indian child, strict adherance to the requirements of the ICWA in addition to state law is essential to success.  Potential adoptive parents of an Indian child must be prepared for the possibility that the child might be removed from them after placement and returned to the custody of an Indian family member or Indian adoptive family.

Contact the adoption attorneys of Hindson & Melton LLC for more information about Georgia or South Carolina adoptions.
Karen S. Hindson     July 29, 2012