Arkansas Supreme Court Adoption case: Necessity of Consent and Indian Child Welfare Act Addressed

The Arkansas Supreme Court's recent case of In the Matter of the Adoption of A.M.C., A Minor, Case No. 06-820 (Ark. Sup. Ct., Opinion Delivered January 4, 2007), focused primarily on two issues:  1) the petitioner's proof needed to show that consent by a biological parent may be dispensed with under A.C.A. 9-9-207; 2) the Indian Child Welfare Act and its impact on an adoption in Arkansas. 

Indian Child Welfare Act

The ICWA (codified at 25 U.S.C.A. 1901 through 1963) was enacted to "protect the best interests of Indian children and to promote the stability and security of Indian tribes and families." (Sec. 1902 (2006))  Paraphrasing, it provides that an Indian child may not have his/her parents' rights terminated unless it is shown beyond a reasonable doubt (yes, that's the standard) that the bio-parent's continued rights to the child are "likely to result in serious emotional or physical damage to the child."  You can see why the Indian biological father in this case was so determined to get this powerful provision of the ICWA to apply to this adoption, and thereby give him more ammunition to keep his parental rights.

However, the court determined that the child to be adopted was not an "Indian child" and therefore the ICWA did not apply.  The reason?  The father's Indian tribe was not an "Indian tribe" for purposes of the ICWA because it was not "recognized as eligible for services provided to Indians by the Secretary..." which is part of the "Indian tribe" definition in 25 U.S.C.A. 1903(8).  So the ICWA did not apply to this adoption.

Practice note: Be sure to check A.C.A. 9-19-104 when dealing with an Indian child adoption.  Jurisdiction and other issues may be affected.  

Consent 

Consent of a biological parent is normally preferred in order for an adoption to proceed without incident.  However, consent is not required in certain circumstances.  A.C.A. 9-9-207(a)(2) provides that consent is not required of a parent whose child is in the custody of another if "the parent for a period of at least one (1) year has failed significantly without justifiable cause (i) to communicate with the child or (ii) to provide for the care and support of the child as required by law or judicial decree."

The court decided that consent of the bio-father in this case was not needed.  The bio-father was incarcerated for a period of time and undisputedly did not pay child support for more than a one year period.  Although it should be pointed out that he did pay child support prior to his incarceration.  It is also undisputed that the bio-mother (who had remarried and her new husband was the petitioner herein) actively tried to keep the child away from the bio-father by changing her phone number and claimed he was harassing her by calling and trying to get visitation with the child.  (The bio-father immediately made attempts to get visitation upon his release from prison and the bio-mother refused.)

Practice note: Clear and convincing evidence must be provided in order to dispense with consent.

Link to case... http://courts.state.ar.us/opinions/2007a/20070104/06-820.pdf