ICWA and the Fundamental Right to Parent

Published Date Written by Erik L. Smith

In re N.N.E., 2008 Iowa Sup. LEXIS 85 (Iowa Sup. Ct. June 2008)



The Mother, a member of a federally recognized Indian tribe, surrendered her infant for adoption, choosing to place the Child with non-Indians in Iowa. The Mother signed a release, letting an attorney petition to terminate the Mother's parental rights," which the attorney did. The Mother's release stated:


"...I request that my child not be placed with my extended family, but with the family that I have selected who is non-Native American. I understand that the Tyme Maidu Tribe may or may not grant my request."


The federal Indian Child Welfare Act (ICWA) stated:


"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 (1) a member of the child's extended family; (2) other members of the Indian child's tribe; or (3) other Indian families. [1]"


Under the Iowa ICWA, the court could not consider the parent's preference for a non-Indian placement unless clear and convincing evidence showed that applying the ICWA preferences would harm the Indian child. [2]


The Iowa Supreme Court found the Iowa ICWA law unconstitutional. The court reasoned that the Mother's intention to terminate her parental rights did not lessen her fundamental right to make decisions about the care of her child. Moreover, the Iowa ICWA gave the Mother an absolute right to withdraw her consent to TPR before TPR was decreed, upon which the child could be returned to her. The court reasoned that the State could not influence the Mother's decision about whether to keep, abort, or surrender, her child by preventing her from choosing a family she felt was best suited to raise her child. Also, the federal ICWA instructed courts to apply whatever law provided a higher standard of protection to the rights of the parent or Indian custodian. Thus, while providing additional rights to the tribe was the State's prerogative, those rights could not come at the expense of the parent's or child's rights. Finding ICWA violations, the Supreme Court remanded to determine whether good cause existed for deviating from the ICWA placement preferences.



I agree with the court remanding for a good cause determination. I disagree, however, that the Iowa ICWA provision requiring harm be shown before considering a parent's placement preference was unconstitutional for infringing on the Mother's parental rights. Constitutional parental rights and the right to familial privacy do not extend to adoption surrenders, even if the parent can revoke consent. Although the Iowa law may be too strict under another legal theory, N.N.E. makes for bad precedent regarding voluntary adoption surrenders.


The Supreme Court acknowledged that the fundamental right to parent means the right to "custody, control, and management" of one's child. But that does not mean the right to choose prospective adoptive parents. Rather, that choice requires court approval to be formalized. In contrast, the parent keeping, caring for, raising, and managing their own child does not require court approval, but is inherent in the parental relationship. That is what makes it a fundamental right. Here, the Mother conceded that the Tribe may not grant her placement request. The Mother herself was probably surprised at the fundamental right she suddenly possessed.


ICWA aims to prevent the break-up of Indian families caused by abusive adoption practices. [3] Congress was concerned about the interests of Indian children and families and the impact on the tribes of the many Indian children adopted by non-Indians. [4] Iowa's law requiring harm to be shown before considering a parent's personal preference was therefore in line with ICWA's purpose and "good cause" requirement. If placement in an Indian family does not harm the Child, little reason exists for the parent to forbid it. That does not mean the Tribe and court should ignore the parent's desires. But considering the parent's wishes is not constitutionally mandated.


The Iowa court relied strongly on In re Baby Girl A, [5] which mentioned a parent's constitutional right to choose adoptive parents. But that case compared only the supposed competing interests between Tribes and Indian parents residing or domiciled off of the reservation. Whatever constitutional right supposedly existed about the mother's placement preference, the court ultimately held that ICWA did not violate it. The court never explained the basis for its belief that the parent's right to choose adopters was a constitutional one. Instead, the California court reasoned: "Until [the mother] signs a formal consent to the adoption, she may choose to retain the minor.... But if she chooses to proceed with it, her choice of the adopting parents is not entirely unfettered.... By enacting the ICWA, Congress has placed further conditions on the choice of prospective parents when placing an Indian child for adoption." Baby Girl A. supports the Iowa court's ultimate ruling that the Mother's preference should be considered. But the California court never identified a "fundamental" right.


Nevertheless, the Iowa court reasoned that the Mother's intention to terminate her parental rights did not lessen her "fundamental right" to make decisions about the care of her child. The court found it significant that the Iowa ICWA gave the Mother an absolute right to revoke her consent before TPR was decreed, upon which the child would have been returned to her. The court reasoned that the State had no right to influence the Mother's decision about whether to keep, abort, or surrender, the Child by preventing her from choosing a family she felt was best suited to raise her child.


That is a warped interpretation of the right to parent. The state has every right to regulate the adoption of children, which is what ICWA does. A parent acknowledging ICWA does not constitute "the State" influencing her custody and abortion decisions. An Indian parent still has a right, just as non-Indian parents do, to keep or abort their children. And, just like Indian parents, non-Indian parents lack a fundamental right to choose who will adopt their children. Any such right that does exist is, like adoption law itself, purely statutory. Moreover, the Mother in N.N.E. never withdrew her consent to TPR. The right to do so being determined directly by ICWA, and ICWA having been able to direct otherwise--as many state statutes regarding non-Indian adoption consents do--shows the invalidity of the Iowa Supreme Court's constitutional theory. ICWA, not the Constitution, lets parents withdraw consent and regain custody. Once a parent agrees to give permanent custody to someone else, the state can regulate associated behavior.


Unfortunately, we now have a precedent that allows for more harmful manipulation by mothers and agencies in adoption surrenders. The Iowa court's theory lets unwed mothers make "conditional" surrenders, enabling them to sit on the fence, half committed to the child--while unwed fathers must be "fully committed," ready to assume "full custody," and object to the adoption unconditionally. I realize that this happens already, even without the decision in N.N.E. But N.N.E. gives those theories of law, which remain untested definitively in the U.S. Supreme Court, undeserved support.

25 U.S.C. § 1915(a). 
Iowa Code § 232B.9(6). 
Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 32 (1989). 
Id., at 49. 
282 Cal.Rptr. 105 (Cal. Ct. App. 1991). 

The Ohio Putative Father Registry–the WHAT?

I am a single man. Yet I had been in Ohio for over a year before hearing of the Ohio Putative Father Registry, and then only in a Probate Law class. The professor was covering how a child could be adopted without the birth father's consent. "ORC 3701.061: A man who has sexual intercourse with a woman is on notice that if a child is born as a result and the man is the putative father, the child may be adopted without his consent pursuant to division (B) of section 3107 of the Revised Code." That section required the man sign the Putative Father Registry within thirty days after the birth to get notice of the adoption.


Ohio Putative Father Registry: The Basics

Unwed fathers are entitled to notice of petitions to adopt their biological children. Yet many fathers lose this right by not registering timely with the Ohio putative father registry (PFR).1R.C. 3107.062. Because adoptions are probate proceedings, lawyers practicing juvenile, domestic relations, or traditional probate law may not understand how the Ohio PFR applies.  At initial consultations then, attorneys may omit counseling fathers about the registry and refer them to attorneys with more specialized experience. But the strict registration deadline, and often unknown deadline date, demand that the father register immediately. Thus the attorney should consider counseling the client about the PFR and help him register that day before referring him. This article gives the information needed to do that.

Preventing Your Infant Child From Being Adopted Without Your Consent


Consult an adoption law or family law attorney. Otherwise: An unwed father has no absolute right to veto an adoption. You must take action to preserve your rights. Whether the mother is considering adoption or not, an unwed father should, as soon as possible and preferably before the birth:

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