“Baby Veronica” was the center of a custody battle between her (now) adoptive parents and her biological father, a registered member of the Cherokee Nation. It’s been frequently reported that her biological father “relinquished” his parental rights via text message. Sensational as that sounds, that’s not what was at the heart of the fight. Most of the legal issues pertained to the Indian Child Welfare Act (ICWA), which was enacted to stem the disturbing trend of state courts removing Indian children (read: Native American; I’m using “Indian” because that is what’s used in ICWA) from their families at a drastically higher rate than non-Indian children. ICWA applies if a child custody proceeding involves an Indian child, as those terms are defined under the act.
Veronica’s biological mother consented to her adoption shortly after her birth. Her biological father’s consent was not necessary to finalize the adoption under South Carolina law. He eventually contested the adoption, arguing his parental rights couldn’t be terminated because of ICWA. The South Carolina courts agreed, finding that ICWA’s enhanced burden of proof for terminating parental rights had not been met and that even if the burden was met, ICWA’s adoption placement preferences applied. At 27 months old, Veronica was removed from the only home she knew and placed with her biological father.
In June, SCOTUS weighed in on ICWA’s application to Veronica’s case. The Court concluded ICWA’s enhanced burden of proof for terminations of parental rights and procedures for adoption consents do not apply to a legal father who never had legal or physical custody of his child. The case was remanded back to the South Carolina Supreme Court, which finalized Veronica’s adoption. Veronica was returned to her adoptive parents in September, after spending 1 ½ years with her biological father.
No matter whose side you’re on, Veronica’s case is heart-wrenching. It has made me wonder how a similar case would play out in Michigan. One thing is certain: unlike Veronica’s case, state law would play a bigger role. That’s because as of January 2, 2013, the Michigan Indian Family Preservation Act (MIFPA) also governs child custody proceedings involving Indian children. In his chapter on Indian child welfare statutes, Hon. Michael Anderegg points out that MIFPA does not exclude legal fathers who never had custody of their children from MIFPA’s parental protections (e.g., enhanced burdens of proof for termination of parental rights). He also notes that ICWA requires a court to apply state law over ICWA if the state law affords more protection to the rights of the parent. So it seems likely that MIFPA’s parental protections could be applied even to parents who’ve never had custody of their children.
You can read more of Judge Anderegg’s analysis of ICWA and MIFPA in chapter 24 of Michigan Family Law. To hear more about Veronica’s case, consider attending the 12th Annual Family Law Institute, where Hon. Timothy P. Connors, Hon. Allie Greenleaf Maldonado, and Kathryn E. Fort will present on MIFPA and SCOTUS’ decision in Veronica’s case.