The Real Impact of Adoptive Couple v. Baby Girl: The Existing Indian Family Doctrine Is Not Affirmed but the Future of ICWA's Placement Preferences Is Jeopardized
Marcia Anne Yablon-Zug
University of South Carolina School of Law
September 30, 2013
Capital University Law Review, Forthcoming
On July 3, 2013, Dusten Brown and his wife Robin, and Brown’s parents, Tommy and Alice Brown, both filed actions to adopt "Baby Veronica", the four-year-old girl at the heart of the U.S. Supreme Court’s recent decision in Adoptive Couple v. Baby Girl. The Browns’ adoption petitions were based on the assumption that the Baby Girl Court did not affirm "The Existing Indian Family Doctrine," a doctrine which limits application of The Indian Child Welfare Act (ICWA) solely to children previously in the care or custody of an Indian relative. The Browns believed ICWA’s placement preferences, which give preference to Indian relatives in Indian child adoption cases, continued to apply to their case and required Veronica’s placement with an Indian relative. A close reading of the Baby Girl opinion supports the Browns’ position. Nevertheless, on July 17th, the South Carolina Supreme Court issued a remand to the South Carolina family court to finalize Veronica’s non-Indian adoption. According to the South Carolina Supreme Court, the ICWA placement preferences were inapplicable because neither Brown nor his parents had filed adoption petitions at the time of the original hearing.
The South Carolina Supreme Court’s ruling misinterprets the U.S. Supreme Court’s decision regarding the applicability of ICWA’s placement preferences to Veronica’s adoption. Unfortunately, the South Carolina court’s decision is likely only the first of many that will reveal how the Baby Girl decision will be used to limit the applicability of ICWA’s placement in future ICWA cases. This article will argue that the Baby Girl decision did not affirm the Exiting Indian Family Doctrine, but that it did significantly curtail the applicability of the placement preferences in many future ICWA cases.
Number of Pages in PDF File: 34Accepted Paper Series
Date posted: October 2, 2013 ; Last revised: October 11, 2013
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