Academic journal article Brigham Young University Law Review

Establishing Paternity under the Indian Child Welfare Act

Academic journal article Brigham Young University Law Review

Establishing Paternity under the Indian Child Welfare Act

Article excerpt

I. Introduction

Courts interpreting the Indian Child Welfare Act of 1978 (ICWA) must wade through a muddy mixture of policies and precedent to reach decisions, but that is common to federal Indian law. What makes their task even more "gut-wrenching"1 are the people at stake, children and parents involved in contested adoptions that "cut at the heart of the most sacred, essential institutions of our society-the family."2 Nevertheless, courts regularly upheave families in messy adoptions. ICWA cases are truly unique because of the added weight of preventing the disruption of a child's connection to another institution-her tribe. This relationship, which has "no parallel in other ethnic cultures found in the United States[,]" is equally sacred.3 It is also far rarer. Despite the guidance of ICWA (a statute that in part requires states to account for tribal rights in child placements) courts struggle to understand, respect, and accommodate child-tribal relationships.

Artists and poets are better suited to explore the boundaries and meaning of human relationships, but legislatures and courts must necessarily delineate them. ICWA defines parent as "any biological parent or parents of an Indian child or any Indian person who has lawfully adopted an Indian child, including adoptions under tribal law or custom. It does not include the unwed father where paternity has not been acknowledged or established."4 Congressional silence has left courts the responsibility of determining what qualifies as acknowledging or establishing paternity for unwed fathers. In response, state courts have not adopted one standard but three. Most expect unwed fathers to fulfill the state laws regarding acknowledging or establishing paternity to qualify as a parent under ICWA. Others use state law as a guideline by which to judge a father's efforts but adopt a standard that allows fathers to imperfectly comply.

The third standard for establishing paternity, a federal reasonableness standard, was recently announced by the Utah Supreme Court on August 31, 2017. In re Adoption of B.B. concerned the contested adoption of the child (B.B.) of two unmarried, enrolled members of the Cheyenne River Sioux Tribe.5 Prior to the child's birth, Birth Father supported Birth Mother on the reservation in South Dakota, but once she moved to Utah in the summer of 2014 she ceased contact with him.6 Upon B.B.'s birth in August, Birth Mother relinquished her parental rights and gave consent to adoption.7 Additionally, on official documents she misrepresented that her brother-in-law was the biological father and that he was not a member of a tribe.8 The brother-in-law relinquished his purported parental rights and consented to the adoption without Birth Father's awareness the child was even born.9

Birth Mother proceeded with the adoption, but once she returned to South Dakota she informed Birth Father of her misrepresentation.10 After contacting the tribe, adoption agency, and state, Birth Father motioned to intervene to establish paternity on December 31, 2014.11 After a series of motions from the tribe, birth parents, and adoptive parents, the district court denied Birth Father's motion to intervene because it found he was not a parent under ICWA for failing to file his court affidavit, file notice of paternity proceedings, and offer to pay for Birth Mother's pregnancy expenses before Birth Mother executed her consent for adoption.12 His untimeliness under state law disqualified him from receiving the additional parental protections of ICWA.13 Birth Father then appealed to the Utah Supreme Court.

The Utah Supreme Court found that Birth Father did acknowledge paternity under ICWA and therefore was a parent.14 However, the majority used a different standard than the district court.15 Rather than requiring Birth Father to fulfill state law, the Utah Supreme Court held his actions needed to pass a federal reasonableness standard.16 Under this new standard, Birth Father's untimeliness was not dispositive when compared with the evidence of his completion of all tasks required by state law for paternity actions, his residence with Birth Mother during the majority of her pregnancy, his "significant steps to care for his unborn child, including financial support during Birth Mother's pregnancy,"17 his intentions to live with Birth Mother in Utah, and his active involvement in the adoption proceedings. …

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