## Facts

- A non-Indian mother and an enrolled Cherokee Nation member (the biological father) ended their relationship during the pregnancy.
- The father communicated agreement to relinquish parental rights; he later claimed he believed he was relinquishing rights only in favor of the mother.
- The mother arranged a private adoption with a non-Indian couple in South Carolina.
- The father provided no financial support during the pregnancy or the child’s first months.
- Due to errors in identifying information, early communications did not initially confirm the father’s tribal membership, and the child’s ethnicity was misrecorded.
- About four months after birth, the adoptive couple served the father with notice of the adoption; he refused consent and sought custody.
- The South Carolina family court denied the adoption and awarded custody to the father, holding that ICWA applied and that ICWA provisions prevented termination of his parental rights.
- The South Carolina Supreme Court affirmed, relying on ICWA §§ 1912(d), 1912(f), and 1915(a).
- The U.S. Supreme Court granted review and reversed.

## Issues

1. Whether ICWA § 1912(f)’s requirement of proof that a parent’s “continued custody” is likely to cause serious harm applies when the Indian parent never had legal or physical custody of the child.
2. Whether ICWA § 1912(d)’s “active efforts” requirement to prevent “the breakup of the Indian family” applies when the Indian parent abandoned the child before birth and never had custody.
3. Whether ICWA § 1915(a)’s adoptive placement preferences apply when no ICWA-preferred party has formally sought to adopt the child.

## Decision

- The Supreme Court reversed and remanded.
- ICWA § 1912(f) did not apply because “continued custody” presupposes custody the parent already has or previously had, and the father never had custody.
- ICWA § 1912(d) did not apply because, on these facts, there was no existing Indian family unit whose breakup was being caused by the termination proceeding.
- ICWA § 1915(a) did not bar the adoption because no eligible ICWA-preferred adoptive placement formally sought to adopt the child.

## Legal Principles

- ICWA § 1912(f) applies only where an Indian parent has, or has previously had, custody; it does not impose a heightened termination standard for a parent who never had custody.
- ICWA § 1912(d) requires “active efforts” only when the termination proceeding threatens to cause the breakup of an existing Indian family relationship; it is inapplicable where no such custodial family unit exists.
- ICWA § 1915(a) placement preferences do not control where there is no competing, formally proposed adoptive placement by an extended family member, tribe member, or other Indian family.

## Conclusion

The Court held that specific ICWA protections tied to “continued custody,” preventing the “breakup” of an Indian family, and adoptive placement preferences did not govern an adoption where the Indian father never had custody and no ICWA-preferred adoptive petitioner sought placement, and it reversed the state court’s contrary application of ICWA.


Adoptive Couple v. Baby Girl, 570 U.S. 637 (2013)