WASHINGTON (CN) - Adoptive parents will get another shot to fight for custody of the baby girl whom they had to turn over to her biological father in the Cherokee nation.
The adoptive parents, whose names are not given in court records, signed the adoption papers after the child's birth in September 2009. They were present in the Oklahoma delivery room, and the adoptive father cut the baby's umbilical cord.
In the final months of the biological mother's pregnancy, the couple had given her financial assistance and had hired an attorney to look into the baby's potential Cherokee Indian status.
Court records show that the biological mother had initially been reluctant about revealing the father's tribal status, knowing that the information could complicate the adoption.
She had allegedly broken up him during the pregnancy because he was pressuring her to get married.
The biological father said his former flame ignored his attempts at communication, but the court record shows that these attempts were not meaningful. The record also shows that the father did not give her any financial support, despite some means to do so, and that he supports an older child he had from a previous marriage.
When the biological mother connected with the adoptive couple in June 2009, she sent the biological father a critical text message. It asked whether he wanted to pay child support or relinquish his parental rights.
Though the father chose the latter option, he has since testified that he would not have done so if he knew adoption was on the table. He allegedly thought he was relinquishing his rights to the biological mother.
The mother testified that she chose adoption because she was struggling financially with two other children from another man. She chose the adoptive couple, residents of Charleston, S.C., because of their stability.
They have been married since 2005 and have no other children. The adoptive mother has advanced degrees in developmental psychology. Her husband works for Boeing as an automotive engineer.
The Child Welfare Division of the Cherokee Nation was unable to verify the membership of the biological father because of some inaccuracies in the paperwork.
Thinking that that this resolved the child's ethnicity, the adoptive mother listed the baby as Hispanic on a form to remove her from Oklahoma.
Cherokee officials now say, however, that such removal would not have been possible if they knew about the baby's Native American status.
In January 2010, four days before he was scheduled to be deployed to Iraq with the U.S. Army, the biological father was served with the adoptive action.
He quickly requested a stay of the adoption proceedings and filed a federal complaint in Oklahoma to establish paternity, custody and support of the baby. That same month, the Cherokee nation identified the father as a registered member and determined that his daughter was an "Indian child."
After a September 2011 trial over the adoption, the Charleston County Family Court transferred custody to the biological father under the Indian Child Welfare Act.
The adoptive parents transferred custody of the baby to her father on Dec. 31, 2011, and the biological father flew her to Oklahoma where they live with his parents.
The South Carolina affirmed
denial of the adoption in July 2012.
In their petition for certiorari, the adoptive parents seek clarification on oft-debated issues with then Indian Child Welfare Act, or ICWA.
They ask: "(1) Whether a non-custodial parent can invoke ICWA to block an adoption voluntarily and lawfully initiated by a non-Indian parent under state law.
"(2) Whether ICWA defines 'parent' in 25 U.S.C. § 1903(9) to include an unwed biological father who has not complied with state law rules to attain legal status as a parent."
As is its custom, the high court did not issue any statement in granting certiorari Friday.
The justices noted that the petitioners can file an appendix under seal, and that it will accept an amicus brief from Professor Joan Heifetz Hollinger and others.