North Carolina Court of Appeals Issues Opinion on ICWA Case

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2019 07 icpa decision

The North Carolina Court of Appeals issued an opinion this week in a case involving the adoption of two children. Because the children are members of a native American Indian tribe, the decision required interpretation of the Indian Child Welfare Act (ICWA). Generally, ICWA controls disputes involving the custody of native American children.

The Court of Appeals, North Carolina’s intermediate appellate court, upheld a 2016 decision of a trial court in New Hanover County. The trial court granted the adoptions and denied a competing claim for custody based upon ICWA. The trial court also denied claims that the case must be transferred to tribal court for decision and that only the tribal court had had authority to decide the issues solely because these are Indian children.

Congress passed ICWA in the mid-1970s due to rising concern over “abusive child welfare practices that resulted in the separation of large numbers of Indian children from their families and tribes through adoption or foster care placement, usually in non-Indian homes.” The purpose was to prevent the breakup of Indian families and maintain the children’s connection with the tribe. Its children are key to the survival of the tribe.

The Act has been criticized for making the interests of the tribe superior to the best interest of the child or wishes of the biological parents. Most recently in October 2018, the Act was in the news when the United States District Court for the Northern District of Texas declared that ICWA is unconstitutional. In Brackeen v. Zinke, the court held that ICWA violates the Equal Protection and the Fifth Amendment of the United States Constitution because it discriminates based on race and does not meet strict scrutiny standards. An appeal is pending.

In 2013, the United States Supreme Court reversed a decision of the South Carolina Supreme Court which had allowed an unwed biological father, who had never had legal or physical custody, to block the adoption of his child. The court concluded that application of ICWA was not required under the circumstances and would not serve its intended purpose of preventing the breakup of an Indian family. The court observed that to allow a biological father to block an adoption under these circumstances would cause prospective adoptive parents to “pause” before committing to the adoption of a child who might qualify as an Indian under ICWA.

In this case, the children had been removed from the care of their biological parents and placed in foster care in 2009 when the oldest was two years old. From 2009 to 2013, the tribe had not identified a native American family to adopt the children. In 2013, they were voluntarily placed in the care of the nonnative American prospective adoptive parents. The parties seemed to be in agreement and represented themselves. Then, there was a disagreement and the litigation began in 2015. There have been several appeals since then. Hopefully, with the Court’s ruling, the litigation is finally at an end. An appeal to the North Carolina Supreme Court is possible.

Always consult a lawyer before trying to represent yourself in any legal proceeding. Even as a lawyer myself, I learned a long time ago that there are times when I need to hire a lawyer. This case serves as a reminder that adoptions are complex and detail oriented. Even when everyone seems to be in agreement, adopting a child is not the time to try and download forms from the internet and do things yourself. We put agreements in writing, because without the writing we might not have an agreement for long. Prospective adoptive parents should always consult an experienced adoption lawyer before committing to a placement opportunity. You don’t know what you don’t know, until you ask.

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