133 S. Ct. 2552 (2013)
In December 2008 Birth Mother, who is predominantly Hispanic, and Biological Father, a member of the Cherokee Nation, became engaged.1 One month later Birth Mother informed Biological Father that she was pregnant.2 After learning of the pregnancy Biological Father asked Birth Mother to move up the wedding date but refused to provide financial support until after they married.3 The couple's relationship deteriorated and Birth Mother broke off the engagement in May 2009.4
In June 2009 Birth Mother sent Biological Father a text message asking whether he would rather pay child support or relinquish his parental rights; Biological Father responded via text that he relinquished his rights.5 Birth Mother decided to place the child for adoption.6 Working through a private adoption agency she selected Adoptive Couple, non-Indians living in South Carolina.7 Adoptive Couple supported Birth Mother emotionally and financially throughout the pregnancy and were present at Baby Girl's birth in Oklahoma on September 15, 2009.8
The next morning Birth Mother signed forms relinquishing her parental rights and consenting to the adoption.9 Adoptive Couple initiated adoption proceedings in South Carolina a few days later and returned there with Baby Girl.10 It is undisputed that for the duration of the pregnancy and the first four months after Baby Girl's birth, Biological Father provided no financial assistance to Birth Mother or Baby Girl.11 He had the ability to do so.12
Approximately four months after the birth Adoptive Couple served Biological Father with notice of the pending adoption.13 Biological Father signed papers stating that he accepted service and was not contesting the adoption, but later testified that he thought he was relinquishing his rights to Birth Mother.14 Biological Father contacted a lawyer the day after signing the papers and subsequently requested a stay of the adoption proceedings.15 In the adoption proceedings Biological Father sought custody and stated that he did not consent to the adoption.16 A paternity test verified that he was Baby Girl's biological father.17
A trial took place in the South Carolina Family Court in September 2011 by which time Baby Girl was two years old.18 The Family Court denied Adoptive Couple's petition for adoption and awarded custody to Biological Father.19 On December 31, 2011 at the age of 27 months Baby Girl was handed over to Biological Father whom she had never met.20 The South Carolina Supreme Court affirmed the Family Court's denial of the adoption and the award of custody to Biological Father.21 The Supreme Court granted certiorari.22
Whether 25 U.S.C. §1912(f) bars involuntary termination of an Indian parent's rights when that parent never had custody of the Indian child?23
Section 1912(f) conditions the involuntary termination of parental rights on a determination, supported by evidence beyond a reasonable doubt, 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.24 The adjective 'continued' refers to a pre-existing state of custody that a parent already has or at least had at some point in the past.25
No. The established facts demonstrate that Biological Father never had physical custody of Baby Girl and never acquired legal custody under either South Carolina or Oklahoma law, both of which vest sole custody of an illegitimate child in the natural mother unless a court orders otherwise.26 Because Biological Father never possessed custody, the statutory phrase 'continued custody' has no application, and §1912(f) therefore does not bar termination of his parental rights.27 The primary mischief Congress sought to address was the unwarranted removal of Indian children from existing Indian families, a concern not implicated when a non-Indian parent with sole custodial rights lawfully initiates adoption proceedings.28
Section 1912(f) does not bar the termination of Biological Father's parental rights.29
Related opinions on this issue
Joined by Justice Ginsburg And Justice Kagan
Justice Sotomayor dissents on the ground that the majority's narrow reading of 'continued custody' in §1912(f) misapprehends the statute's structure and scope.30 She maintains that the provision imposes a stringent burden of proof on any party seeking termination of parental rights and requires the court to consider all circumstances, including the possibility of foster care, before ordering termination.31 In her view, the phrase 'parent or Indian custodian' is a term of art that protects biological fathers even without prior custody, and the majority's approach creates an absurd scheme that varies rights based on the location of the adoptive couple rather than the strength of the parent-child bond.32
Whether 25 U.S.C. §1912(d) requires a showing of active remedial efforts to prevent the breakup of the Indian family when the Indian parent abandoned the child prior to birth and never had custody?33
Section 1912(d) conditions an involuntary termination of parental rights on a showing that active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and that these efforts have proved unsuccessful.34 The term 'breakup' refers to the discontinuance of a relationship or the ending of an effective entity.35
No. The established facts establish that Biological Father abandoned Baby Girl prior to birth by relinquishing his rights via text message and providing no financial support during the pregnancy or the first four months after birth.36 When an Indian parent abandons a child before birth and the child has never been in that parent's legal or physical custody, there is no relationship that would be discontinued by termination of parental rights.37 The breakup of the Indian family has long since occurred, rendering §1912(d) inapplicable.38 This reading aligns with the statute's explicit purpose of setting standards for the removal of Indian children from their families and with the Bureau of Indian Affairs guidelines.39
Section 1912(d) does not require a showing of active remedial efforts in these circumstances.40
Related opinions on this issue
Justice Scalia joins Justice Sotomayor's dissent except as to one detail.41 He rejects the majority's conclusion drawn from the words 'continued custody' in §1912(f) because there is no reason that 'continued' must refer to custody in the past rather than custody in the future.42 He reads the provision as requiring the court to satisfy itself that continued custody is not likely to result in serious damage, a connotation more in accord with the rest of the statute.43
He adds that the majority's opinion needlessly demeans the rights of parenthood by failing to respect the common-law entitlement of those who bring a child into the world to raise that child.44
Whether 25 U.S.C. §1915(a) placement preferences apply in an adoption proceeding when no alternative party eligible for preference has formally sought to adopt the child?45
Section 1915(a) provides that in any adoptive placement of an Indian child under state law, a preference shall be given, in the absence of good cause to the contrary, to a placement with a member of the child's extended family, other members of the Indian child's tribe, or other Indian families.46 The preferences are inapplicable when no alternative party has formally sought to adopt the child because there is then no preference to apply.47
No. The established facts show that Adoptive Couple was the only party that sought to adopt Baby Girl in the Family Court or the South Carolina Supreme Court.48 Biological Father did not seek to adopt Baby Girl; he argued instead that his parental rights should not be terminated.49 Baby Girl's paternal grandparents never sought custody, nor did other members of the Cherokee Nation or other Indian families come forward even though the Cherokee Nation had notice of and intervened in the proceedings.50 Because no eligible alternative party formally sought adoption, §1915(a)'s rebuttable preferences do not apply.51
Section 1915(a) placement preferences do not apply in this proceeding.52
Related opinions on this issue
Justice Thomas concurs in the judgment on constitutional avoidance grounds.53 He explains that the interpretations offered by Birth Father and the United States raise significant constitutional problems because the Indian Commerce Clause grants Congress authority only to regulate commerce with Indian tribes, not to override state custody law whenever an Indian is involved.54 Application of ICWA here would regulate neither commerce nor Indian tribes as tribes and would permit Congress to dictate rules of evidence and procedure in state courts merely because a person of Indian descent is involved, a result without constitutional basis.55
Justice Breyer joins the Court's opinion with three observations.56 He notes that the statute does not directly explain how to treat an absentee Indian father with next-to-no involvement in the first months of the child's life and understands the risk that the Court's interpretation could exclude too many such fathers from a policy perspective.57 He emphasizes that the Court decides no more than necessary and does not address fathers with visitation rights, those who have paid all child support, or special circumstances such as deception about the child's existence.58
He also raises but does not answer whether other provisions such as §1915(a) and (c) might allow an absentee father to re-enter the statutory order of preference with tribal support.59