Adoptive Couple v. Baby Girl , 398 S.C. 625 ( 2012 )

Chief Justice TOAL.

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.

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 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 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 Mother testified Mother 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 “Dustm” instead of “Duste7^ ” 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 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 Girl from Oklahoma.⁸

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. [The process server] told me that I could not grab that [sic] because ... I would be going to jail if I was to do any harm to the paper.”

After consulting with his parents and a JAG lawyer at his base, Father contacted a lawyer the next day, and on January 11, 2010, he requested a stay of the adoption proceedings under the Servicemember’s Civil Relief Act (“SCRA”). On January 14, 2010, Father filed a summons and complaint in an Oklahoma district court to establish paternity, child custody, and support of Baby Girl. The complaint named Appellants and Mother as defendants.¹⁰ Paragraph 12 of this Complaint stated, “Neither parent nor the children have Native American blood. Therefore the Federal Indian Child Welfare Act ... and the Oklahoma Indian Child Welfare Act ... do not apply.” Father departed for Iraq on January 18, 2010, with his father acting as power of attorney while he was deployed overseas.¹¹

On March 16, 2010, Appellants, with Mother joining, filed a Special Appearance and Motion to Dismiss Father’s Oklahoma action on jurisdictional grounds. The motion was granted, thereby ending the Oklahoma custody action.

Meanwhile, in January 2010, the Cherokee Nation first identified Father as a registered member and determined that Baby Girl was an “Indian Child,” as defined under the Federal Indian Child Welfare Act, 25 U.S.C. § 1901, et seq. (the “ICWA”). It is not apparent from the Record when Appellants were made aware of this change, but on March 30, 2010, Appellants amended their South Carolina pleadings to acknowledge Father’s membership in the Cherokee Nation. Accordingly, on April 7, 2010, the Cherokee Nation filed a Notice of Intervention in the South Carolina action.¹²

On May 6, 2010, the family court ordered paternity testing which conclusively established Father as the biological father of Baby Girl, and Appellants have since acknowledged Father’s paternity. Furthermore, the family court issued an order confirming venue and jurisdiction in Charleston County Family Court and lifting the automatic stay of proceedings under the SCRA. On May 25, 2010, Father answered Appellants’ amended complaint, stating he did not consent to the adoption of Baby Girl and seeking custody. By temporary order dated July 12, 2011, the family court set a hearing date for the case, and found separately that the ICWA applied to the case.

The trial of the case took place from September 12-15, 2011. A Guardian ad Litem (“GAL”) represented the interests of Baby Girl. On November 25, 2011, the family court judge issued a Final Order, finding that: (1) the ICWA applied and it was not unconstitutional; (2) the “Existing Indian Family” doctrine was inapplicable as an exception to the application of the ICWA in this case in accordance with the clear modern trend; (3) Father did not voluntarily consent to the termination of his parental rights or the adoption; and (4) Appellants failed to prove by clear and convincing evidence that Father’s parental rights should be terminated or that granting custody of Baby Girl to Father would likely result in serious emotional or physical damage to Baby Girl. Therefore, the family court denied Appellants’ petition for adoption and ordered the transfer of custody of Baby Girl to Father on December 28, 2011.

Appellants filed a motion to stay the transfer and to reconsider on December 9, 2011, which the family court denied on December 14, 2011.¹³ Appellants then filed a notice of appeal in the court of appeals on December 20, 2011, along with a petition for a writ of supersedeas. Judge Aphrodite Konduras temporarily granted the petition for a writ of supersedeas pending the filing of a return by Father. On December 30, 2011, Judge Konduras issued an order lifting the temporary grant of supersedeas and denying the petition for a writ of supersedeas. On December 31, 2011, Appellants transferred Baby Girl to Father, and Father and his parents immediately traveled with Baby Girl back to Oklahoma.

This Court certified the appeal pursuant to Rule 204(b), SCACR. In addition to briefs filed by the parties, the American Academy of Adoption Attorneys, 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 have filed briefs as amici curiae.

Issues

I. Whether Appellants properly transferred Baby Girl to South Carolina.

II. Whether the ICWA defers to state law in determining whether an unwed father is a “parent” as defined by the ICWA.

III. Whether Appellants proved grounds to terminate Father’s parental rights under the ICWA.

Standard of Review

When reviewing a decision by the family court, an appellate court has the authority to find the facts in accordance with its own view of the preponderance of the evidence. Lewis v. Lewis, 392 S.C. 381, 384, 709 S.E.2d 650, 651 (2011). “However, this broad scope of review does not require this Court to disregard the findings of the family court” judge who is in a superior position to make credibility determinations, nor does it relieve an appellant of demonstrating the error of the family court. Id. at 384, 389, 709 S.E.2d at 651, 654.

Law/Analysis

I. The ICWA

This case is unique in that it involves an Indian child,¹⁴ and thus, any child custody proceeding must be decided within the parameters of the ICWA, 25 U.S.C. § 1901-1963 (1978).

The ICWA “was the product of rising concern in the mid-1970’s over the consequences to Indian children, Indian families, and Indian tribes of abusive child welfare practices that resulted in the separation of large numbers of Indian children from their families and tribes through adoption or foster care placement, usually in non-Indian homes.” Miss. Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 32, 109 S.Ct. 1597, 104 L.Ed.2d 29 (1989). The evidence presented to Congress during the 1974 hearings revealed that “25 to 35% of all Indian children had been separated from their families and placed in adoptive families, foster care, or institutions.” Id. (citation omitted). Moreover, “[t]he adoption rate of Indian children was eight times that of non-Indian children” and “[ajpproximately 90% of the Indian placements were in non-Indian homes.” Id. at 33, 109 S.Ct. 1597 (citation omitted). At the Congressional hearings, a Tribal Chief described the primary reason for such removal as follows:

One of the most serious failings of the present system is that Indian children are removed from the custody of their natural parents by nontribal government authorities who have no basis for intelligently evaluating the cultural and social premises underlying Indian home life and childrearing. Many of the individuals who decide the fate of our children are at best ignorant of our cultural values, and at worst contemptful of the Indian way and convinced that removal, usually to a non-Indian household or institution, can only benefit an Indian child.

Id. at 34, 35,109 S.Ct. 1597 (citation and footnote omitted).¹⁵

Although Congress primarily sought to prevent the involuntary removal of American Indian or Alaska Native Indian children from their families and tribal communities and placement of these children into both foster care and adoptive placements, see 25 U.S.C. §§ 1912(e)-(f), 1915(b), it is clear that Congress was likewise concerned with the voluntary adoptions of Indian children. See 25 U.S.C. § 1915(a) '(“In any adoptive placement of an Indian child under State law, a preference shall be given, in the absence of good cause to the contrary, to a placement with (1) a member of the child’s extended family; (2) other members of the Indian child’s tribe; or (3) other Indian families.” (emphasis added)).

Aside from the avoidance of culturally inappropriate removal of Indian children, Congress intended the ICWA to preserve tribal sovereignty with respect to its familial affairs. In Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 32, 109 S.Ct 1597, 104 L.Ed.2d 29 (1989), the only United States Supreme Court case addressing the ICWA, the Court determined that the Choctaw Indian Tribe had the sole authority to determine the adoptive placement of twin babies under the ICWA. In that case, both Indian parents desired to have their twin babies adopted by non-Indian parents. Id. In construing section 1911(a) of the ICWA, the Supreme Court stated:

[n]or can the result be any different simply because the twins were “voluntarily surrendered” by their mother. Tribal jurisdiction under § 1911(a) was not meant to be defeated by the actions of individual members of the tribe, for Congress was concerned not solely about the interests of Indian children and families, but also about the impact on the tribes themselves of the large numbers of Indian children adopted by non-Indians. The numerous prerogatives accorded the tribes through the ICWA’s substantive provisions ... must, accordingly, be seen as a means of protecting not only the interests of individual Indian children and families, but also of the tribes themselves.

Id. at 49, 109 S.Ct. 1597 (internal citations and footnote omitted).¹⁶

Therefore, exercising its power under the Indian Commerce Clause of the United States Constitution, U.S. Const, art. 1, § 8, Congress passed the ICWA making, inter alia, these specific findings:

(3) that there is no resource that is more vital to the continued existence and integrity of Indian tribes than their children and that the United States has a direct interest, as trustee, in protecting Indian children who are members of or are eligible for membership in an Indian tribe;

(4) that an alarmingly high percentage of Indian families are broken up by the removal, often unwarranted, of their children from them by nontribal public and private agencies and that an alarmingly high percentage of such children are placed in non-Indian foster and adoptive homes and institutions; and

(5) that the States, exercising their recognized jurisdiction over Indian child custody proceedings through administrative and judicial bodies, have often failed to recognize the essential tribal relations of Indian people and the cultural and social standards prevailing in Indian communities and families.

25 U.S.C. § 1901.

Additionally, Congress declared:

[I]t is the policy of this Nation to protect the best interests of Indian children and to promote the stability and security of Indian tribes and families by the establishment of minimum Federal standards for the removal of Indian children from their families and the placement of such children in foster or adoptive homes which will reflect the unique values of Indian culture, and by providing for assistance to Indian tribes in the operation of child and family service programs.

Id. § 1902.¹⁷

Because the ICWA establishes “minimum Federal standards for the removal of Indian children from their families” and applies to any child custody proceeding involving an Indian child, see 25 U.S.C. §§ 1902, 1903, 1911, it is through this lens that we are constrained to decide the present controversy.

IL Transfer of Baby Girl to South Carolina

In its rendering of the facts of the case, the final order of the family court stated that if it were not for the misinformation provided to the Cherokee Nation about the birth father during the process of securing the ICPC, “[Appellants] [would not have] received permission to remove the child from Oklahoma and transport the child to their home state of South Carolina just days after her birth.” This statement was neither a finding of fact nor a conclusion of law, but rather was part of the factual background provided in the order. Nevertheless, on appeal Respondents argue that South Carolina courts lack jurisdiction to determine the custody issues. In response, Appellants argue that they properly transferred Baby Girl to South Carolina, and if not, the improper transfer was forgivable or understandable. More specifically, Appellants contend the ICPC form, which did not accurately represent Baby Girl’s Indian heritage, should not be construed against them because the ICPC does not protect the rights of birth parents but is designed to ensure the child’s safe transfer across state lines. Thus, Appellants maintain, they have satisfied the requirements of the ICPC by providing Baby Girl with a safe and loving home. Furthermore, while Appellants do not dispute that the Cherokee Nation was never informed of Baby Girl’s status as an Indian child, Appellants argue that the misspelling of Father’s name was an obvious mistake, which they subsequently corrected by amending their pleadings to allege Father is a Cherokee Indian.

Appellants correctly identify the purpose of the ICPC. See Doe v. Baby Girl, 376 S.C. 267, 284, 657 S.E.2d 455, 464 (2008) (“[W]e note the ICPC was designed to ensure that placements for children across state lines are safe; it was not designed to protect the rights of the birth parents. Certainly, there was no evidence that Baby Girl’s placement with appellants had become unsafe in any way.” (internal citation omitted)). However, we think Appellants’ argument mischaracterizes the family court’s statement. The family court did not find that Appellants violated the ICPC by unsafely transferring Baby Girl across state lines. Rather, Appellants’ mistake when researching Father’s tribal membership coupled with the subsequent omission on the ICPC form, meant that the Cherokee Nation was not properly alerted to Baby Girl’s status as an Indian child; and therefore, the tribe’s right to participate in Baby Girl’s placement was never triggered before Appellants removed Baby Girl from Oklahoma.

While the evidence establishes Baby Girl would not be in South Carolina had the Cherokee Nation been properly noticed of her status as an Indian child, we agree with Appellants that the propriety of Baby Girl’s transfer to South Carolina was litigated in the Oklahoma action when the Oklahoma court issued an order dismissing the case on jurisdictional grounds. Appellants correctly point out that in Father’s Response to Appellants’ Motion to Dismiss, he argued that the ICPC request form “would not have been processed by Michael Nomura of Heritage Family Services without giving notice to the Cherokee Nation had Defendant not withheld the fact that the baby was part American Indian on the form.” After considering this and other arguments, the Oklahoma court issued an order dismissing the action on jurisdictional grounds, and neither Father nor the Cherokee Nation appealed that order. Therefore, because no appeal was taken from the dismissal of the action, that decision remains the law of the case. See Ulmer v. Ulmer, 369 S.C. 486, 490, 632 S.E.2d 858, 861 (2006) (“A portion of a judgment that is not appealed presents no issue for determination by the reviewing court and constitutes, rightly or wrongly, the law of the case.”).

Because the Oklahoma court declined to exercise jurisdiction in this case, it is now incumbent on this Court to resolve the myriad issues concerning Baby Girl’s final placement.

III. Father’s Status as a “Parent” under the ICWA

Appellants claim Father does not have standing to invoke the protection of the ICWA because Father does not meet the ICWA’s statutory definition of “parent” found in section 1903(9).¹⁸ We disagree.

The family court found the ICWA was applicable, in that the Cherokee Nation is an “Indian Tribe,” Baby Girl is an “Indian Child,” and Father is a “parent” as prescribed in the ICWA. See 25 U.S.C. § 1903(4), (8)-(9).

The ICWA defines “parent” as

any biological parent or parents of an Indian child or any Indian person who has lawfully adopted an Indian child, including adoptions under tribal law or custom. It does not include the unwed father where paternity has not been acknowledged or established.

Id. § 1903(9) (emphasis added).

Appellants argue that unwed fathers must show more than “mere biology” to invoke the protections of the ICWA. The ICWA does not explicitly set forth a procedure for an unwed father to acknowledge or establish paternity; thus, Appellants argue that the ICWA defers to state law on this point. Relying on section 63-9-310(A)(5) of the South Carolina Code,¹⁹ Appellants contend that because Father neither lived with Mother for a continuous period of six months before the child’s birth, nor contributed to her pregnancy-related expenses, Father does not qualify as a “parent” under the ICWA.

In making the determination that Father was a “parent” under the ICWA, the family court focused on the distinction between the requirements for an unwed father to consent to an adoption under state law versus the requirements for an unwed father to establish paternity under the ICWA, and found the “ICWA extends greater rights to the unwed Indian father” than state law. (emphasis added). The family court’s finding and Appellants’ argument collapse the notions of paternity and consent. However, the family court ultimately concluded that Father met the ICWA’s definition of “parent” by both acknowledging his paternity through the pursuit of court proceedings as soon as he realized Baby Girl had been placed up for adoption and establishing his paternity through DNA testing. We agree with the family court that, by its plain terms, this is all that is required under the ICWA. Therefore, Father is a “parent” as defined by the ICWA.

TV Termination of Parental Rights

Because we find Father is a “parent”²⁰ for purposes of the application of the ICWA, we now turn to whether Father’s parental rights should be terminated. While the ICWA incorporates state law termination grounds, it also clearly mandates state courts consider heightened federal requirements to terminate parental rights as to ICWA parents.²¹

A. Voluntary Termination

While Father’s consent would not have been required under South Carolina law, see S.C.Code Ann. § 63-9-310(A)(5), for a parent to voluntarily relinquish his or her parental rights under the ICWA, his or her

consent shall not be valid unless executed in writing and recorded before a judge of a court of competent jurisdiction and accompanied by the presiding judge’s certificate that the terms and consequences of the consent were fully explained in detail and were fully understood by the parent or Indian custodian. The court shall also certify that either the parent or Indian custodian fully understood the explanation in English or that it was interpreted into a language that the parent or Indian custodian understood. Any consent given prior to, or within ten days after, birth of the Indian child shall not be valid.

25 U.S.C. § 1913(a). Moreover, a parent may withdraw his or her consent “for any reason at any time prior to the entry of a final decree of termination or adoption, as the case may be, and the child shall be returned to the parent.” Id. § 1913(c).

It is undisputed that the only consent document Father ever signed was a one-page “Acceptance of Service” stating he was not contesting the adoption, which was purportedly presented for Father’s signature as a prerequisite to the service of a summons and complaint. Thus, Appellants did not follow the clear procedural directives of section 1913(a) in obtaining Father’s consent. Moreover, even if this “consent” was valid under the statute, then Father’s subsequent legal campaign to obtain custody of Baby Girl has rendered any such consent withdrawn. Therefore, neither Father’s signature on the “Acceptance of Service” document, nor his stated intentions to relinquish his rights, were effectual forms of voluntary consent under the ICWA.

B. Involuntary Termination

Thus, we may only grant Appellants’ adoption decree with respect to Father in the absence of his voluntary consent if Appellants can establish grounds for involuntarily terminating Father’s parental rights under state law and the ICWA.

Under the ICWA, in addition to any state law grounds for termination, Appellants must “satisfy the court that active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and that these efforts have proved unsuccessful.” 25 U.S.C. § 1912(d). Moreover,

No termination of parental rights may be ordered in such proceeding in the absence of a determination, supported by evidence beyond a reasonable doubt, including testimony of qualified expert witnesses, 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.

Id. § 1912(f) (emphasis added).

1. Active Remedial Measures

To effect termination under the ICWA, the parties seeking termination “shall satisfy the court that active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and that these efforts have proved unsuccessful.” 25 U.S.C. § 1912(d).

Appellants admit that the provision has not been satisfied; however, they seek to avoid the remedial measures requirement by claiming that any efforts to rehabilitate Father would be futile. We find Appellants’ futility argument insufficient to override the clear mandate of section 1912(d) under these facts.

Even assuming the dissent is correct in finding that Father did not want custody of Baby Girl and did not desire to act as a parent to her, straightforward application of the language of section 1912(d) requires that remedial services be offered to address any parenting issues to prevent the breakup of the Indian family — for example, by attempting to stimulate Father’s desire to be a parent or to provide necessary education regarding the role of a parent.²² In this case, far from offering such services, Appellants — perhaps understandably, given the emotionally wrenching circumstances — have actively sought to prevent Father from obtaining custody of Baby Girl since she was four months old. Father, despite some early indications of possible lack of interest in Baby Girl, not only reversed course at an early point but has maintained that course despite this active opposition. Therefore, a finding on these facts that the remedial measures mandated by the ICWA may be waived would be an unwarranted substitution of this Court’s preferences for the clear dictates of statutory law.²³

2. Likelihood of Serious Emotional or Physical Damage

Section 1912(f) requires a qualified expert to provide evidence satisfying this Court 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.” The family court applied a clear and convincing standard of review, pursuant to Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982), even though the instant case deals with termination of parental rights under the ICWA. While the family court misinterpreted Santosky,²⁴ considering it found Appellants failed to meet even the lower burden, we agree that Appellants have not satisfied their burden of proving that Father’s custody of Baby Girl would result in serious emotional or physical harm to her beyond a reasonable doubt.

The family court admitted the testimony of Dr. Bart Saylor as Appellants’ expert witness to demonstrate the likelihood of damage to Baby Girl if removed from Appellants’ custody. Dr. Saylor, a licensed clinical psychologist and designated forensic psychologist, conducted a bonding evaluation with Appellants and Baby Girl, but had no contact with Father. Dr. Saylor only considered the effect of severing Baby Girl’s bond with Appellants and did not review any information about Father’s capacity to form a loving relationship with Baby Girl. Although Dr. Saylor admitted he did not have specific training in Cherokee child rearing practices, he did not believe knowledge of Indian culture was necessary to evaluate the bonding between Baby Girl and Appellants. Dr. Saylor testified that Appellants and Baby Girl had a very strong bond, and therefore,

I believe that at this point removal from the one and only parents, the secure, the bonded relationship, the one and only that she has with these parents at this age would be very traumatic, would be very disruptive. It could produce depression, anxiety, it could cause disruption in her capacity to form relationships at a later age. It would be extremely stressful to her. It would be taking away everything that she had come to know and count on for her comfort and security and replace it with something that would be completely unfamiliar and strange to her.

Dr. Saylor confirmed that he believed beyond a reasonable doubt that Baby Girl’s removal from Appellants would cause serious emotional harm. However, Dr. Saylor agreed that even though a child may have bonded successfully one time, a child can bond again. Finally, he could not say what long-term harm would result from Baby Girl’s removal.

Father’s expert, Tiffany Dunaway, a Child Welfare Specialist with the Cherokee Nation who has worked with between ten and fifteen transitioned children the same age as Baby Girl, conducted a home study on Father’s family while Father was stationed on active duty in Iraq. Dunaway reported that the family home was clean, safe, and appropriate and that there were many acres of land surrounding the home for outdoor play. Based on her interaction with Father’s parents, Dunaway opined, “this child will thrive, I don’t have any doubt. I know we can’t predict the future, but I think that she will be safe____She’ll know who she is and where she came from. She’ll be very loved.” Under cross-examination, Dunaway admitted that some transitioned children have difficulties, especially older children, but testified that these children have thrived overall. Dunaway admitted that she had never met Baby Girl, nor had she witnessed Father interact with a child the same age as Baby Girl. Dunaway’s opinion about the ability of the child to thrive was based on anecdotal experience, and she could not produce any studies to show that transitioned children thrive in the long-term.²⁵

In its final order, the family court noted that Dr. Saylor could not render an opinion about the long-term effects of severing the bond between Appellants and Baby Girl, although he testified that in the short-term it would be very traumatic. The family court found persuasive the testimony that Father was a good father who enjoyed a close relationship with his other daughter and Dunaway’s testimony that children around Baby Girl’s age tended to thrive when reunited with their Indian parents. Therefore, the family court concluded that Appellants did not prove that “the child will suffer physical or emotional damage if returned to the custody of her biological father,” and as a result, “the ICWA prohibits termination of his parental rights.”

Appellants argue that section 1912(f) does not require a child to suffer long-term harm. Appellants urge this Court to find severe emotional harm likely based solely on the expected harm of severing Baby Girl’s bond from the only parents she knows.

Initially, we note that the plain language of section 1912(d) requires a showing that the transferee parent’s prospective legal and physical custody is likely to result in serious damage to the Indian child, not that the Indian child’s removal from the custody of the adoptive parents will likely result in emotional damage, which in this case Appellants’ expert admits is likely to be temporary.²⁶

Absent any evidence to the contrary, we hold that Appellants’ reliance on bonding, without more, cannot satisfy their high burden of proving that Father’s custody of Baby Girl would result in serious emotional or physical damage to her. While we are conscious that any separation will cause some degree of pain, we can only conclude from the evidence presented at trial that Father desires to be a parent to Baby Girl, and that he and his family have created a safe, loving, and appropriate home for her. Furthermore, Father instituted child custody proceedings when Baby Girl was four months old. See Rick P. v. State, OCS, 109 P.3d 950, 958 (Alaska 2005) (footnote omitted) (“Our cases indicate that a parent’s willingness to resume parental duties does not ‘remedy’ abandonment if this change of heart comes too late for the parent to bond with the child during the critical early phase of the child’s life.”). Because Father intervened at this early point and most of the bonding occurred during the course of this litigation, it should not be a factor that weighs against Father. See Holyfield, 490 U.S. at 53-54, 109 S.Ct. 1597 (1989) (“We are not unaware that over three years have passed since the twin babies were born and placed in the [adoptive] home, and that a court deciding their fate today is not writing on a blank slate in the same way it would have [three years ago]. Three years’ development of family ties cannot be undone, and a separation at this point would doubtless cause considerable pain.... Had the mandate of the ICWA been followed [three years ago], of course, much potential anguish might have been avoided, and in any case the law cannot be applied so as automatically to ‘reward those who obtain custody, whether lawfully or otherwise, and maintain it during any ensuing (and protracted) litigation.’ ” (citation omitted)). Thus, the bonding that occurred during litigation, without more, cannot form the basis for terminating Father’s parental rights.

3. State Statutory Grounds for Termination

Because we have found that Appellants have not met their burden of proof to establish termination under the ICWA, we need not address the grounds for termination elucidated in section 63-7-2570 of the South Carolina Code. See Wilkinson ex rel. Wilkinson v. Palmetto State Transp. Co., 382 S.C. 295, 307, 676 S.E.2d 700, 706 (2009) (appellate court need not discuss remaining issues when determination of prior issue is dispositive).

4. Best Interests of the Child

South Carolina courts have a long history of determining custody disputes based on the “best interests of the child.” See Hooper v. Rockwell, 334 S.C. 281, 295, 513 S.E.2d 358, 366 (1999) (“This Court long has tried to decide all matters involving the custody or care of children in ‘light of the fundamental principle that the controlling consideration is the best interests of the child.’ ” (quoting In Re Doran, 129 S.C. 26, 31, 123 S.E. 501, 503 (1924))). This important history is not replaced by the ICWA’s mandate. See In re Welfare of L.N.B.-L., 157 Wash.App. 215, 237 P.3d 944, 965 (2010) (“ICWA’s applicability does not mean that ICWA replaces state law with regard to a child’s best interests.”) Instead, “[w]ell-established principles for deciding custody matters should further [the ICWA’s] goals.” Id. (quoting In re Mahaney, 146 Wash.2d 878, 51 P.3d 776, 785 (2002)).

Where an Indian child’s best interests are at stake, our inquiry into that child’s best interests must also account for his or her status as an Indian, and therefore, we must also inquire into whether the placement is in the best interests of the Indian child. See 25 U.S.C. § 1902 (“The Congress hereby declares that it is the policy of this Nation to protect the best interests of Indian children and to promote the stability and security of Indian tribes and families by the establishment of minimum Federal standards for the removal of Indian children from their families and the placement of such children in foster or adoptive homes which will reflect the unique values of Indian culture, and by providing for assistance to Indian tribes in the operation of child and family service programs.”). In making this determination, the child’s relationship with his or her tribe is an important consideration, as the ICWA is “based on the fundamental assumption that it is in the Indian child’s best interest that its relationship to the tribe be protected.” Holyfield, 490 U.S. at 50 n. 24, 109 S.Ct. 1597 (quoting In re Appeal in Pima Cnty. Juvenile Action No. S-903, 130 Ariz. 202, 635 P.2d 187, 189 (App. 1981)).²⁷ Thus, Baby Girl, as an Indian child, has a strong interest in retaining ties to her cultural heritage. See id. at 49-50, 109 S.Ct. 1597 (“In addition, it is clear that Congress’s concern over the placement of Indian children in non-Indian homes was based in part on evidence of the detrimental impact on the children themselves of such placements outside their culture.”).²⁸

The family court order stated, “[w]hen parental rights and the best interests of the child are in conflict, the best interests of the child must prevail. However, in this case, I find no conflict between the two.”²⁹ Likewise, we cannot say that Baby Girl’s best interests are not served by the grant of custody to Father, as Appellants have not presented evidence that Baby Girl would not be safe, loved, and cared for if raised by Father and his family. Moreover, in transferring custody to Father and his family, Baby Girl’s familial and tribal ties may be established and maintained in furtherance of the clear purpose of the ICWA, which is to preserve American Indian culture by retaining its children within the tribe. See Holyfield, 490 U.S. at 37, 109 S.Ct. 1597.

C. Preferential Placement

Furthermore, even if we were to terminate Father’s rights, section 1915(a) of the ICWA establishes a hierarchy of preferences for the adoptive placement of an Indian child.³⁰ See 25 U.S.C.1915(a). That section provides: “[i]n any adoptive placement of an Indian child under State law, a preference shall be given, in the absence of good cause to the contrary, to a placement with (1) a member of the child’s extended family; (2) other members of the Indian child’s tribe; or (3) other Indian families.” (emphasis added). While , not binding, the Bureau of Indian Affairs Guidelines concerning good cause state that courts may look to the “request of the biological parents or the child when the child is of sufficient age,” the “extraordinary physical or emotional needs of the child as established by testimony of a qualified expert witness,” and the “unavailability of suitable families for placement after a diligent search has been completed for families meeting the preference criteria” when deciding to deviate from the stated preferences. 44 Fed. Reg. 67584, 67954-95 (1979). The party-seeking to deviate from the preferences bears the burden of demonstrating that good cause exists. Id.

From the outset, rather than seek to place Baby Girl within a statutorily preferred home, Mother sought placement in a non-Indian home.³¹ In our view, the ensuing bond that has formed in the wake of this wrongful placement cannot be relied on by Appellants and the dissent to deviate from the ICWA’s placement preferences.

While the best interests of the child standard is always a guiding consideration when placing a child, any attempt to utilize our state’s best interests of the child standard to eclipse the ICWA’s statutory preferences ignores the fact that the statutory placement preferences and the Indian child’s best interests are not mutually exclusive considerations. Instead, the ICWA presumes that placement within its ambit is in the Indian child’s best interests. See In re C.H., 299 Mont. 62, 997 P.2d 776, 784 (2000) (“[T]he best interests of the child ... is an improper test to use in ICWA cases because the ICWA expresses the presumption that it is in an Indian child’s best interests to be placed in accordance with statutory preferences. To allow emotional bonding — a normal and desirable outcome when, as here, a child lives with a foster family for several years — to constitute an ‘extraordinary’ emotional need [comprising good cause to deviate from the preferences] would essentially negate the ICWA presumption.” (emphasis added)). Therefore, “the unfettered exercise of [state] discretion poses a real danger that the ICWA preferences will be overridden upon the slightest evidence favoring alternative placement.” Barbara Ann Atwood, Flashpoints under the Indian Child Welfare Act: Toward a New Understanding of State Comi, Resistance, 51 Emory L.J. 587, 645 (2002). Thus, the bonding that has occurred between Appellants and Baby Girl has not satisfied this Court that custody with Father is against Baby Girl’s best interests. For this reason, under these facts, we cannot say that bonding, standing alone, should form the basis for deviation from the statutory placement preferences.

Conclusion

We do not take lightly the grave interests at stake in this case. However, we are constrained by the law and convinced by the facts that the transfer of custody to Father was required under the law. Adoptive Couple are ideal parents who have exhibited the ability to provide a loving family environment for Baby Girl. Thus, it is with a heavy heart that we affirm the family court order.

Because this case involves an Indian child, the ICWA applies and confers conclusive custodial preference to the Indian parent. All of the rest of our determinations flow from this reality. While we have the highest respect for the deeply felt opinions expressed by the dissent, we simply see this case as one in which the dictates of federal Indian law supersede state law where the adoption and custody of an Indian child is at issue. Father did not consent to Baby Girl’s adoption, and we cannot say beyond a reasonable doubt that custody by him would result in serious emotional or physical harm to Baby Girl. Thus, under the federal standard we cannot terminate Father’s parental rights. For these reasons, we affirm the family court’s denial of the adoption decree and transfer of custody to Father.

AFFIRMED.

PLEICONES and BEATTY, JJ., concur. KITTREDGE, J., dissenting in a separate opinion in which HEARN, J., concurs. HEARN, J., dissenting in a separate opinion in which KITTREDGE, J., concurs.

1 . Father has a daughter from a prior marriage whom he supports through a deduction in his military pay and who was six years old at the time of the engagement. Mother claims that Father has another daughter whom he does not support, but this was never substantiated by the evidence. Mother has two other children from a prior relationship.

2 . Father served honorably in both Operation Iraqi Freedom and Operation New Dawn and received a Bronze Star for his service. He is now a member of the National Guard and works as a security guard.

3 . The testimony of Mother and Father surrounding the circumstances of the parties’ relationship during this time is conflicting. For example, Father testified he was "very happy” when he learned they were expecting a child and claimed he desired to get married sooner so that the child would not be born out of wedlock. On the other hand, Mother testified Father "didn’t really have a reaction" and "every time [she] would bring it up, he really didn't say a whole lot,” and stated Father pressured her to get married for monetary purposes because the military would increase his pay for "family living.”

4 . Mother testified she asked Father for financial assistance before she made her first pre-natal doctor’s appointment, and Father stated he would not assist her financially unless they were married. Father denies that Mother asked for financial assistance and testified he would have supported her if she had asked.

5 . Mother testified that she believed she also had Cherokee heritage, but she was not a registered member of the Cherokee Nation.

6 . Adoptive Mother testified that the Nightlight Agency's pre-placement report was "probably ... something I read and didn’t think twice about it.”

7 . Mother testified that she chose this option in both of her previous births primarily to prevent the father from contacting her.

8 . Dunaway testified that had "Native American” been circled on the ICPC form, the ICPC administrator would have contacted her supervisor directly. Whether or not the Cherokee Nation would have ultimately allowed the adoption to go forward is a matter of tribal law. However, the testimony establishes the tribe would not have consented to Baby Girl’s removal at that time, triggering the denial of Appellants' ICPC application, and Appellants would not have been able to transport Baby Girl to South Carolina.

9 . Father testified he asked friends and family if they had seen Mother because she would not reply to his text messages. His mother testified she attempted to contact Mother on several occasions and once left Mother a voice message before Baby Girl’s birth to tell Mother she had money and some gifts for the baby, including items she hand-knitted, but Mother never returned her telephone calls. Mother testified that none of Father’s family members contacted her regarding gifts for Baby Girl.

10 . Upon receipt of this complaint, Appellants were first put on notice that Father was contesting the adoption.

11 . Father did not return to the United States until December 26, 2010.

12 . On April 19, 2010, Father filed an amended complaint that modified paragraph 12 of his previous complaint to read: "Both the father and the child have Native American blood. Therefore the Federal Indian Child Welfare Act ... and the Oklahoma Indian Child Welfare Act ... do apply.”

13 . The GAL also filed a motion to reconsider, which was denied.

14 . An "Indian Child” is "any unmarried person who is under age eighteen and is either (a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe.” 25 U.S.C. § 1903(4).

15 . For example, non-Indian state child welfare workers often mischaracterize the dynamics of the Indian extended family:

An Indian child may have scores of, perhaps more than a hundred, relatives who are counted as close, responsible members of the family. Many social workers, untutored in the ways of Indian family life or assuming them to be socially irresponsible, consider leaving the child with persons outside the nuclear family as neglect and thus as grounds for terminating parental rights.

H.R.Rep. No. 1386, at 22 (1978) reprinted in 1978 U.S.C.C.A.N. 7530, 7533. At trial, the Cherokee Nation presented expert testimony that the involvement of extended family members in child-rearing is culturally unique to Cherokee Indians.

16 . While the present case does not involve section 1911(a), which grants tribes exclusive jurisdiction to determine placement of Indian children who are either domiciled on a reservation or a ward of the tribe, the ICWA "lays out a dual jurisdictional scheme.” Holyfield., 490 U.S. at 36, 109 S.Ct. 1597. Therefore, in cases of children not domiciled on the reservation, section 1911(b), as noted in the Holyfield decision,

creates concurrent but presumptively tribal jurisdiction in the case of children not domiciled on the reservation: on petition of either parent or the tribe, state court proceedings for foster care placement or termination of parental rights are to be transferred to the tribal court, except in cases of "good cause,” objection by either parent, or declination of jurisdiction by the tribal court.

Id. In cases of concurrent jurisdiction between states and tribes, the ICWA "set[s] procedural and substantive standards for those child custody proceedings that do take place in state court.” Id. Thus, the clear message oí Holyfield, even though construing section 1911(a), still rings true in this child custody proceeding: the ICWA safeguards the tribe’s role in child custody proceedings affecting its children and protects a tribe’s strong interest in retaining its children within the tribe. Id. at 37, 109 S.Ct. 1597.

17 . Given that its policy conflicts with the express purpose of the ICWA, we take this opportunity to reject the "Existing Indian Family” doctrine (the "EIF”). See Note, The Indian Childs Welfare Act of 1978: Does it Apply to the Adoption of an Illegitimate Indian Child?, 38 Cath. U. L. Rev., 511, 534 (1989) ("In light of the legislative history of the ICWA, the existing Indian family theory is thus contrary to the intent of Congress.” (footnotes omitted)). The EIF is a judicially created exception to the application of the ICWA. See In the Matter of the Adoption of Baby Boy L., 231 Kan. 199, 643 P.2d 168, 175 (1982), overruled by In the Matter of A.J.S., 288 Kan. 429, 204 P.3d 543 (2009) (holding the purpose of the ICWA "was not to dictate that an illegitimate infant who has never been a member of an Indian home or culture, and probably never would be, should be removed from its primary cultural heritage and placed in an Indian environment over the express objections of its non-Indian mother"). In so holding, we join the majority of our sister states who have rejected the EIF or have since abandoned the exception. See In the Matter of A.J.S., 204 P.3d at 548-49 (listing the states that have rejected the EIF).

18 . Appellants also urge this Court to conclude that the ICWA does not apply if we conclude Father is not a "parent" as defined by the ICWA. However, the ICWA’s applicability stems from Baby Girl's status as an Indian child under section 1903(4). See Note, The Indian Child Welfare Act of 1978: Does it Apply to the Adoption of an Illegitimate Indian Child?, supra note 17, at 540 ("Congress clearly intends that the only prerequisite to the operation of the ICWA be the involvement of an Indian Child in a child custody proceeding."). Thus, the ICWA applies because Baby Girl is an Indian child, and whether or not this Court finds Father a “parent" has no bearing on the ICWA’s applicability.

19 . That section provides that an unwed father must consent to an adoption taking place within six months of a child’s birth only if: (a) the father openly lived with the child or the child’s mother for a continuous period of six months immediately preceding the placement of the child for adoption, and the father openly held himself out to be the father of the child during the six months period; or

(b) the father paid a fair and reasonable sum, based on the father’s financial ability, for the support of the child or for expenses incurred in connection with the mother's pregnancy or with the birth of the child, including, but not limited to, medical, hospital, and nursing expenses.

S.C.Code Ann. § 63-9-310(A)(5) (2010). Under state law, Father's consent to the adoption would not have been required.

20 . We note that Father is not afforded protection under the ICWA merely because he is an Indian parent. The ICWA also provides protection to non-Indian parents, so long as they are a parent of an "Indian Child” as defined by section 1903(4).

21 . We agree with the dissent that the ICWA does not operate to "oust” the states’ jurisdiction to make custody determinations affecting Indian children. See Holyfield, 490 U.S. at 58, 109 S.Ct. 1597 (citation omitted). However, in cases where state courts are considering the placement of an Indian child, the ICWA sets forth important procedural and substantive provisions that state courts must follow. Id. at 36, 109 S.Ct. 1597. While state termination grounds play a part in custody proceedings under the ICWA, we believe, unlike the dissent, that state law cannot operate to frustrate the clear purposes of the ICWA, as "Congress perceived the States and their courts as partly responsible for the problem [the ICWA] intended to correct.” Id. at 44-45, 109 S.Ct. 1597. In fact, to achieve its desired goal of placing Baby Girl with Appellants, the dissent utilizes reasoning expressly rejected by the Holyfield court in finding that a state court could not employ state abandonment principles to sidestep the ICWA’s clear mandates in order to sanction an Indian mother’s attempt to avoid the ICWA’s domiciliary provisions to facilitate an adoption by white parents. See id. at 52-53, 109 S.Ct. 1597 (stating this insertion of state abandonment principles "conflicts with and undermines the operative scheme established by subsections [1911(a) ] and [1913(a) ] to deal with children of domiciliarles of the reservation and weakens considerably the tribe's ability to assert its interest in its children. This relationship between Indian tribes and Indian children domiciled on the reservation finds no parallel in other ethnic cultures found in the United States. It is a relationship that many non-Indians find difficult to understand and that non-Indian courts are slow to recognize. It is precisely in recognition of this relationship, however, that the ICWA designates the tribal court as the exclusive forum for the determination of custody and adoption matters for reservation-domiciled Indian children, and the prefeired forum for nondomiciliary Indian children. [State] abandonment law cannot be used to frustrate the federal legislative judgment expressed in the ICWA that the interests of the tribe in custodial decisions made with respect to Indian children are as entitled to respect as the interests of the parents.” (quoting In re Adoption of Halloway, 732 P.2d 962, 969-970 (1986))).

22 . The dissent rightly points out that, in most termination cases, the state initiates remedial or rehabilitative efforts after removing a child from parental custody. However, the dissent acknowledges that "such services may also be offered to parents proactively to prevent a child’s removal in the first instance.” The ICWA does not distinguish removal situations from adoptive placements. Thus, had the tribe been properly noticed of the adoption from the outset, it would have been the tribe's prerogative to take remedial measures to reunify the Indian family.

23 . We note that even under South Carolina law, we do not terminate parental rights merely because a parent is not a perfect parent. See Hooper v. Rockwell, 334 S.C. 281, 296, 513 S.E.2d 358, 366 (1999). Thus, only where "reunification is not possible or appropriate” may a party move to terminate the parent’s rights by proving a basis for termination by clear and convincing evidence. Id.; see also Richland Cnty. Dep’t of Soc. Servs. v. Earles, 330 S.C. 24, 32, 496 S.E.2d 864, 868 (1998) (citing Greenville Cnty. Dep’t of Soc. Servs. v. Bowes, 313 S.C. 188, 437 S.E.2d 107 (1993)). Our cases demonstrate that when a parent consciously refuses to support, visit, or otherwise make a suitable environment for their child, termination is appropriate, but even in extreme cases, we seek to rehabilitate the parent either by ordering them to pay support, addressing any substance abuse issues, or instituting a treatment or placement plan. See S.C. Dep’t of Soc. Servs. v. M.R.C.L., 393 S.C. 387, 390-95, 712 S.E.2d 452, 454-57 (2011) (terminating parental rights as to parents who tested positive for crack cocaine, failed to complete drug and alcohol testing, and refused to comply with court ordered child support); Hooper, 334 S.C. at 296-301, 513 S.E.2d at 366-69 (terminating parental rights based on mother’s severe abuse and neglect of her child, refusal to satisfy court ordered support obligations, and failure to comply with at least twelve treatment plans designed to remedy the conditions which led to her child’s removal); Earles, 330 S.C. at 32-34, 496 S.E.2d at 868-70 (terminating parental rights after mother’s home could not be made safe within twelve months due to mother’s physical and sexual abuse of her two children over the course of four years); S.C. Dep’t of Soc. Servs. v. Broome, 307 S.C. 48, 48, 413 S.E.2d 835, 835 (1992) (terminating parental rights after mother failed to support child by making only three court ordered child support payments over a one-year period, attending only thirty-five of ninety-four visits scheduled with the child over a four-year period, and failing to visit the child at all for a period of five months); Dep’t of Soc. Servs. v. Phillips, 365 S.C. 572, 580, 618 S.E.2d 922, 926 (Ct.App.2005) (terminating parental rights after children were exposed to sexual behaviors between mother and father and mother failed to remedy her drug addiction problem during the year the children were removed from the home).

24 . In Santosky, the Supreme Court held that the minimum burden of proof allowable in a state-initiated termination of parental rights proceedings was "clear and convincing evidence.” 455 U.S. at 769, 102 S.Ct. 1388. Any lesser standard would deprive a parent of due process under the law. Id. While the Santosky court mentioned that states might find the "beyond a reasonable doubt” standard utilized in the ICWA an "unreasonable barrier to state efforts to free permanently neglected children for adoption,” the thrust of the Santosky decision was to create a minimum, not a maximum, burden of proof in termination of parental rights proceedings.

25 . The dissent finds Dunaway’s opinion "lacks credibility" as to whether Baby Girl would suffer harm if removed from Appellants’ custody, citing testimony in which Appellants’ counsel challenged Dunaway to provide statistics that children placed in tribal homes have not suffered serious harm, rather than basing her assertions on her personal experience as a case worker. We disagree that this exchange reflects negatively on Dunaway’s credibility, as she testified to her personal experience in transitioning children. In any event, it was Appellants’ burden to establish a likelihood of serious emotional or physical harm beyond a reasonable doubt if Baby Girl were placed with Father.

26 . Even in cases of the voluntary relinquishment of parental rights, the parent has the ability under the ICWA to renege on his or her consent "for any reason at any time" before the entry of the final decree of termination or adoption. See 25 U.S.C. § 1913(c) (emphasis added). Thus, the ICWA gives conclusive preference to parental custody over custodial stability. Indeed, the dissent’s dependence on Father’s perceived lack of interest in or support for Baby Girl during the pregnancy and first four months of her life as a basis for termination his rights as a parent is not a valid consideration under the ICWA for this same reason. Because the ICWA permits a parent to revoke voluntary consent up until the final adoption decree for any reason at all, whatever Father’s deficit in expressing interest in Baby Girl, it clearly falls short of consent to termination, and even then, his rights would not be prejudiced until a final decree.

27 . While the tribe ultimately decided to return the Holyfield children to the adoptive parents, the dissent fails to account for the marked difference between the facts of the Holyfield custody dispute and those of the present controversy, and the actual basis for the tribe's decision: the children had been in the care of the adoptive parents for four years; they did not understand the Choctaw language, which was the predominant language spoken in most Choctaw homes; and no adoptive tribal home was waiting for the children, so that interim placement in foster care would have been necessary. See Solangel Maldonado, Race, Culture, and Adoption: Lessons from Mississippi Band of Choctaw Indians v. Holyfield, 17 Colum. J. Gender & L. 1, 17-18 (2008). Moreover, the tribal court ordered that the children maintain contact with their Choctaw extended family and tribe, and the placement was within the same state. Id. at 18; Holyfield, 490 U.S. at 40, 109 S.Ct. 1597. Thus, the children's and tribe’s respective interests in maintaining cultural ties were still protected.

28 . The Record establishes that Father’s family has a deeply embedded relationship with the Cherokee Nation. For example, not only does the Record indicate that Father and his family are proud of their heritage and membership in the Wolf Clan, the home study performed on Father’s parents states the following:

[Father's father] is Cherokee Indian. He grew up knowing he was Cherokee and being proud of who he was. [Father’s parents] ... prepare the following traditional foods in their home: grape dumplings, buckskin bread, Indian cornbread, Indian tacos, wild onions, fry bread, polk salad and deer meat. [Father’s mother] state[d] she cooks these foods in her home on a regular basis and all of her children have eaten these items.

[Father’s parents] attend the Cherokee Holiday in Tahlequah, Oklahoma!,] when they can and participate in eating traditional foods, viewing the arts and crafts and watching the traditional games. [Father's father] participates in voting in the Cherokee elections!,] ____took part in learning about the Cherokee culture when his children were in high school by learning to make Indian crafts and learning to play the drum[, and].... is sometimes seen at the Nowata Indian Health Clinic but receives the majority of his health care from the Veterans hospital. He claims his family is from the Wolf Clan, and he has been to as well as participated in stomp dances.

[H]is family had Indian land which was located in Pryor, Oklahoma and Cayuga, Oklahoma. He claims to have very traditional ties with his extended family and considers geneology [sic] a hobby by researching his Cherokee culture. [Father's parents] have many Native American items in their home. Decorative Native American pieces are scattered throughout their home in nearly every room.

Thus, the Record demonstrates that Father and his family are well-positioned to introduce Baby Girl to her Indian heritage.

29 . The dissent states: "It is apparent that the decision of the family court judge was influenced to some extent by the erroneous legal conclusion that ICWA eclipses the family court's obligation to determine what would be in the child's best interests.” We do not read the family court’s order to be based on that erroneous assumption. Plainly, the family court determined that there was no conflict between Father's best interests and Baby Girl's best interests. See S.C.Code Ann. § 63-9-20 (stating that in adoption proceedings "when the interests of a child and an adult are in conflict, the conflict must be resolved in favor of the child.").

30 . Holyfield describes this provision as "[tjhe most important substantive requirement imposed on state courts” under the ICWA towards creating a federal policy that an Indian child should remain with his or her tribe whenever possible. Holyfield, 490 U.S. at 36, 37, 109 S.Ct. 1597 (citation omitted).

31 . The biological parents’ placement preference is not the guiding consideration under the ICWA. Rather, the ICWA assigns great weight to tribal preference when placing Indian children. See Holyfield, 490 U.S. at 52-53, 109 S.Ct. 1597 ("The protection of this tribal interest is at the core of the ICWA, which recognizes that the tribe has an interest in the child which is distinct from but on a parity with the interest of the parents. This relationship between Indian tribes and Indian children domiciled on the reservation finds no parallel in other ethnic cultures found in the United States. It is a relationship that many non-Indians find difficult to understand and that non-Indian courts are slow to recognize. It is precisely in recognition of this relationship, however, that the ICWA designates the tribal court as the exclusive forum for the determination of custody and adoption matters for reservation-domiciled Indian children, and the preferred forum for nondomiciliary Indian children. [State] abandonment law cannot be used to frustrate the federal legislative judgment expressed in the ICWA that the interests of the tribe in custodial decisions made with respect to Indian children are as entitled to respect as the interests of the parents.” (quoting In re Adoption of Halloway, Til P.2d 962, 969-970 (1986))); Roger A. Tellinghuisan, The Indian Child Welfare Act of 1978: A Practical Guide With [Limited] Commentary, 34 S.D. L. Rev. 660, 666 (1989) ("Holyfield also carries the clear message that [the ICWA] would be read liberally, perhaps creatively, to protect the rights of the tribe even against the clearly expressed wishes of the parents....”).