by Chad Pekron
March 14, 2019
In every way that matters, Erin Fisher, her husband Richard Fisher, and their son A.C. are a typical family. The Fishers live together, celebrate their holidays together, take vacations together, and enjoy the company of A.C.’s younger brother. Mr. Fisher coaches A.C.’s baseball team, taught him to swim, and helps him with his homework.
But the Fisher family is atypical in only one way: Mr. Fisher is not A.C.’s biological father, but is instead his stepfather. A.C.’s biological father, Jason Cook, has been out of A.C.’s life for years and has been in and out of custody for a variety of offenses. A.C. considers Mr. Fisher, not has biological father, to be his dad, and wants Mr. Fisher to adopt him as his legal son.
Normally, under Arkansas law, this would not be a problem. Arkansas law provides a relatively simple procedure for the termination of parental rights when, as here, a biological parent has abandoned his or her minor child. And once parental rights of one parent are terminated, a stepparent adoption is simple and straightforward. Under any normal circumstances, it would be very easy for the Fisher family to obtain the legal recognition that they desire.
Unfortunately, because A.C. is designated as an “Indian child” due to his biological father’s status as a Native American, the otherwise simple process whereby Mr. Fisher would adopt A.C. is complicated, expensive, and a complete uncertainty. Under the Indian Child Welfare Act (ICWA), A.C.’s biological father’s tribe, the Cherokee Nation, was granted the opportunity to intervene in the Fisher’s termination proceeding.
Once the Cherokee Nation intervened—which, notably, it had the right to do even up to two years after an adoption was finalized—the rules changed. Instead of simply showing by clear and convincing evidence that A.C.’s biological father had abandoned him, ICWA imposed two additional burdens. First, the Fishers were required to provide that they had taken “active efforts” to prevent the breakup of the Indian family and that those efforts were unsuccessful. Second, the Fishers were required to prove beyond a reasonable doubt—using expensive expert witnesses—that the failure to terminate parental rights would result in significant emotional trauma to A.C. Given the disparity of resources between the Fishers and the tribe, these additional burdens are essentially insurmountable. More important, they are immoral, given that they have essentially forced A.C. into repeated situations of attempts at visitation that his biological father rejected.
These burdens are based on only one factor: A.C.’s status as an “Indian child.” That classification is defined solely by A.C.’s race. Without question, imposing additional burdens on families based solely upon their race would be unthinkable if any other race were at issue. It should be equally unthinkable to impose those burdens upon an “Indian child.”
Along with the Goldwater Institute counsel Adi Dynar and Keith Morrison, an Arkansas attorney specializing in family law, I have filed suit on behalf of the Fishers in the United States District Court for the Western District of Arkansas, seeking to have ICWA declared unconstitutional as applied in this case. While ICWA was intended to address serious problems in the past, its application to an otherwise uncontested parental termination proceeding violates the Fishers’ rights to be treated equally and fairly under the law without regard for their child’s race. The Fifth and Fourteenth Amendments require no less.