Having tackled gene patenting yesterday, today the Justices returned to the bench to hear oral arguments in Adoptive Couple v. Baby Girl, which has also garnered a lot of attention, primarily because of its heart-wrenching facts. At issue is whether an unwed biological father who initially renounced his custodial rights to his daughter can rely on a federal law – the Indian Child Welfare Act – to block her adoption by the couple who had cared for her since birth. Unlike yesterday, however, there were few signs either that the Court was moving toward any form of consensus or that any form of middle ground might be possible.

Lisa Blatt, representing the Adoptive Couple from South Carolina who cared for Baby Girl for the first twenty-seven months of her life, began by emphasizing that even if the biological Father is a “parent” for purposes of ICWA, he still cannot avail himself of the two procedural protections provided by the statute in Section 1912(d) and (f). The former requires the party seeking the involuntary termination of parental rights to show that “active efforts had been made to provide remedial services and rehabilitation programs designed to prevent the breakup of the Indian family and that these efforts have proved unsuccessful,” while the latter allows the termination only when there is a “determination, supported by evidence beyond a reasonable doubt. . . that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child.” Those provisions do not apply here, Blatt argued, because Father did not have an ongoing relationship with Baby Girl that could be broken up.