Couple v. Baby Girl

• Decision Date: 22 August 2012
• Docket Number: No. 27148.,27148.
• Citation: 398 S.C. 625,731 S.E.2d 550
• Parties: ADOPTIVE COUPLE, Appellants, v. BABY GIRL, a minor child under the age of fourteen years, Birth Father, and the Cherokee Nation, Respondents.
• Court: South Carolina Supreme Court

398 S.C. 625
731 S.E.2d 550

ADOPTIVE COUPLE, Appellants,
v.
BABY GIRL, a minor child under the age of fourteen years, Birth Father, and the Cherokee Nation, Respondents.

No. 27148.

Supreme Court of South Carolina.

Heard April 17, 2012.
Decided July 26, 2012.
Rehearing Denied Aug. 22, 2012.

[731 S.E.2d 552]

Mark D. Fiddler, of Minneapolis, Minnesota, Raymond W. Godwin and Julie M. Rau, both of Greenville, and Robert Norris Hill, of Newberry, all for Appellants.

John S. Nichols, of Bluestein, Nichols, Thompson & Delgado, of Columbia, Lesley Ann Sasser and Shannon Phillips Jones, both of Charleston, all for Respondent, Birth Father.

Chrissi R. Nimmo, of Tahlequah, Oklahoma, for Respondent, Cherokee Nation.

James Fletcher Thompson, of Spartanburg, and Philip McCarthy, of Flagstaff, Arizona, for Amicus Curiae, the American Academy of Adoption Attorneys.

Dione Cherie Carroll, of Miami, Florida, for Amici Curiae, the Catawba Indian Nation, the North American Council on Adoptable Children, the Child Welfare League of America, the National Indian Child Welfare Association, and the Association on American Indian Affairs.

Thomas P. Lowndes, Jr., of Charleston, for the Guardian ad Litem.

Chief Justice TOAL.

[398 S.C. 629]This case involves a contest over the private adoption of a child born in Oklahoma to unwed parents, one of whom is a member of the Cherokee Nation. After a four day hearing in September 2011, the family court issued a final order on November 25, 2011, denying the adoption and requiring the adoptive parents to transfer the child to her biological father. The transfer of custody took place in Charleston, South Carolina, on December 31, 2011, and the child now resides with her biological father and his parents in Oklahoma. We affirm the decision of the family court denying the adoption and awarding custody to the biological father.

[398 S.C. 630]Facts/Procedural History

Father and Mother are the biological parents of a child born in Oklahoma on September 15, 2009 (“Baby Girl”). Father and Mother became engaged to be married in December 2008, and Mother informed Father

[731 S.E.2d 553]

that she was pregnant in January 2009.¹ At the time Mother became pregnant, Father was actively serving in the United States Army and stationed at Fort Sill, Oklahoma, approximately four hours away from his hometown of Bartlesville, Oklahoma, where his parents and Mother resided.² Upon learning Mother was pregnant, Father began pressing Mother to get married sooner.³ The couple continued to speak by phone daily, but by April 2009, the relationship had become strained. Mother testified she ultimately broke off the engagement in May via text message because Father was pressuring her to get married. At this point, Mother cut off all contact with Father. While Father testified his post-breakup attempts to call and text message Mother went unanswered, it appears from the Record Father did not make any meaningful attempts to contact her.

It is undisputed that Mother and Father did not live together prior to the baby's birth and that Father did not support Mother financially for pregnancy related expenses, even though he had the ability to provide some degree of financial [398 S.C. 631]assistance to Mother.⁴

In June 2009, Mother sent a text message to Father asking if he would rather pay child support or surrender his parental rights. Father responded via text message that he would relinquish his rights, but testified that he believed he was relinquishing his rights to Mother. Father explained: “In my mind I thought that if I would do that I'd be able to give her time to think about this and possibly maybe we would get back together and continue what we had started.” However, under cross-examination Father admitted that his behavior was not conducive to being a father. Mother never informed Father that she intended to place the baby up for adoption. Father insists that, had he known this, he would have never considered relinquishing his rights.

Mother testified she chose the adoption route because she already had two children by another father, and she was struggling financially. In June 2009, Mother connected with Appellants (or “Adoptive Mother” or “Adoptive Father”) through the Nightlight Christian Adoption Agency (the “Nightlight Agency”). She testified she chose them to be the parents of the child because “[t]hey're stable.... they're a mother and father that live inside a home where she can look up to them and they can give her everything she needs when needed.”

Appellants reside in Charleston, South Carolina, and were married on December 10, 2005. Adoptive Mother has a Master's Degree and a Ph.D. in developmental psychology and develops therapy programs for children with behavior problems and their families. Adoptive Father is an automotive body technician currently working for Boeing. They have no other children. After connecting, Mother spoke with Appellants weekly by telephone, and Adoptive Mother visited Mother in Oklahoma in August 2009. Appellants provided financial assistance to Mother during the final months of her pregnancy and after Baby Girl's birth. Adoptive

[731 S.E.2d 554]

Mother testified Mother [398 S.C. 632]consistently represented that the birth father was not involved.

Mother testified that she knew “from the beginning” that Father was a registered member of the Cherokee Nation, and that she deemed this information “important” throughout the adoption process.⁵ Further, she testified she knew that if the Cherokee Nation were alerted to Baby Girl's status as an Indian child, “some things were going to come into effect, but [she] wasn't for [sic] sure what.” Mother reported Father's Indian heritage on the Nightlight Agency's adoption form and testified she made Father's Indian heritage known to Appellants and every agency involved in the adoption. However, it appears that there were some efforts to conceal his Indian status. In fact, the pre-placement form reflects Mother's reluctance to share this information:

Initially the birth mother did not wish to identify the father, said she wanted to keep things low-key as possible for the [Appellants], because he's registered in the Cherokee tribe. It was determined that naming him would be detrimental to the adoption.
Appellants hired an attorney to represent Mother's interests during the adoption. Mother told her attorney that Father had Cherokee Indian heritage. Based on this information, Mother's attorney wrote a letter, dated August 21, 2009, to the Child Welfare Division of the Cherokee Nation to inquire about Father's status as an enrolled Cherokee Indian. The letter stated that Father was “1/8 Cherokee, supposedly enrolled,” but misspelled Father's first name as “Dust in ” instead of “Dust en ” and misrepresented his birthdate. (emphasis added).

Because of these inaccuracies, the Cherokee Nation responded with a letter stating that the tribe could not verify Father's membership in the tribal records, but that “[a]ny incorrect or omitted family documentation could invalidate this determination.” Mother testified she told her attorney that the letter was incorrect and that Father was an enrolled member, but that she did not know his correct birthdate. Adoptive Mother testified that, because they hired an attorney [398 S.C. 633]to specifically inquire about the baby's Cherokee Indian status, “when she was born, we were under the impression that she was not Cherokee.” ⁶ Any information Appellants had about Father came from Mother.

When Mother arrived at the hospital to give birth, she requested to be placed on “strictly no report” status, meaning that if anyone called to inquire about her presence in the hospital, the hospital would report her as not admitted.⁷ Mother testified that neither Father nor his parents contacted her while she was in the hospital.

Adoptive Mother and Adoptive Father were in the delivery room when Mother gave birth to Baby Girl on September 15, 2009. Adoptive Father cut the umbilical cord. The next morning, Mother signed forms relinquishing her parental rights and consenting to the adoption.

Appellants were required to receive consent from the State of Oklahoma pursuant to the Oklahoma Interstate Compact on Placement of Children (“ICPC”) as a prerequisite to removing Baby Girl from that state. Mother signed the necessary documentation, which reported Baby Girl's ethnicity as “Hispanic” instead of “Native American.” After Baby Girl was discharged from the hospital, Appellants remained in Oklahoma with Baby Girl for approximately eight days until they received ICPC approval, at which point they took Baby Girl to South Carolina. According to the testimony of Tiffany Dunaway, a Child Welfare Specialist with the Cherokee Nation, had the Cherokee Nation known about Baby Girl's Native American heritage, Appellants would not have been able to remove Baby

[731 S.E.2d 555]

Girl from Oklahoma.⁸

[398 S.C. 634]Father was aware of Mother's expected due date, but made no attempt to contact or support Mother directly in the months following Baby Girl's birth. ⁹

Appellants filed the adoption action in South Carolina on September 18, 2009, three days after Baby Girl's birth, but did not serve or otherwise notify Father of the adoption action until January 6, 2010, approximately four months after Baby Girl was born and days before Father was scheduled to deploy to Iraq. On that date outside of a mall near his base, a process server presented Father with legal papers entitled “Acceptance of Service and Answer of Defendant,” which stated he was not contesting the adoption of Baby Girl and that he waived the thirty day waiting period and notice of the hearing. Father testified he believed he was relinquishing his rights to Mother and did not realize he consented to Baby Girl's adoption by another family until after he signed the papers. Upon realizing that Mother had relinquished her rights to Appellants, Father testified, “I then tried to grab the paper up....