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Equal Justice Under the Law for Kids, Too

June 26, 2013

Megan Lindsey

Adoptive Parents

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Equal Justice Under the Law for Kids, Too

Supreme Court

Yesterday, the Supreme Court released an opinion on Adoptive Couple v. Baby Girl.

The facts in this case are not simple. Summarily though, a man enrolled in the Cherokee tribe and a non-native American woman were the biological parents to Baby Girl. The man voluntarily waived his rights to parent this child. The biological mother chose to make an adoption plan for her child. She chose adoptive parents who she trusted would parent her child well. The adoptive parents were supportive through the pregnancy and present from the moment of the child's birth—a little girl, Veronica, who is 3/256th Cherokee. The biological father intervened when Veronica was four months old stating that he was now interested in playing an active role in her life. Court battles ensued - for more than two years. The South Carolina Supreme Court held that, although he might not have the legal rights of a father under state law, the Indian Child Welfare Act gave him special rights because of his status as a member of the Cherokee tribe. For twenty seven months, Veronica had known life only with the adoptive parents. When the South Carolina Supreme Court issued their ruling, Veronica was placed in the care of her Cherokee biological father. She has known only his custody and care for the last, approximately 18 months.
Yesterday, The U.S. Supreme Court reversed the South Carolina Supreme Court in a 5-4 decision. The opinion of the Court delivered by Justice Alito (joined by Justices Roberts, Kennedy, Thomas, and Breyer) addresses three key pieces of the Indian Child Welfare Act and decided the following:
  1. “25 U.S.C. §1912(f) which bars involuntary termination of a parent’s rights in the absence of a heightened showing that serious harm to the Indian Child is likely to result from the parent’s ‘continued custody’ of the child – does not apply when, as here, the relevant parent never had custody of the child.”
  2. “25 U.S.C. §1912(d) which conditions involuntary termination of parental rights with respect to an Indian child on a showing that remedial efforts have been made to prevent the ‘breakup of the Indian family’ – is inapplicable when, as here, the parent abandoned the Indian child before birth and never had custody of the child.”
  3. “25 U.S.C. §1915(a), which provides placement preferences for the adoption of Indian children, does not bar a non-Indian family like Adoptive Couple from adopting an Indian child when no other eligible candidates have sought to adopt the child.”
More simply, what that means is that the Indian Child Welfare Act will be able to continue to do the good work it was intended for - preserving a child’s experience of culture and heritage. However, it balances the larger interests of children, saying that culture and heritage are just some of the factors to consider and, particularly when a child has not experienced that culture, we won’t remove them based solely on that, but we’ll look at what is best for them overall.
We count this Supreme Court opinion a victory for application to cases affecting future children and families. However, the South Carolina Supreme Court has a difficult job ahead of them. This case has been remanded – sent back – to them to implement the Supreme Court’s opinion on this particular case. Unfortunately, there is no undoing the damage done and real lives were at play. Little Veronica was already removed from the only family she’d known for the first 27 months of her life. Adoptive parents, Matt and Melanie Capobianco, have suffered life without their child unjustly. However, Veronica, who will be four in September, has now been with her biological father, Dusten Brown for about 18 months. I very much agree with Justice Sotomayor’s sentiment in oral arguments in this case: “I don’t want to be that judge,” who has to decide this child’s future when so much disruption and confusion has brought us to this point. I don’t know what the right answer is now, but I know it should be about Veronica.
At NCFA, we believe that kids have the right to parents, not the other way around. I hope her best interests are the first and last thing considered. I hope they evaluate Veronica’s needs now and use child welfare and developmental experts to determine what will minimize further trauma and set her up to thrive in life. And I hope they do it diligently, but quickly. The real lives at play here need real answers so they can move forward – particularly little Veronica who is living out crucial developmental milestones in the many months it has taken all the decision-making grownups to work through these difficult concerns.
Supreme Court building with quote
On the front of the Supreme Court is engraved the statement “Equal Justice Under Law”. We believe the Supreme Court has acted in line with this motto offering equal justice for kids – interpreting a difficult situation that will allow a good intentioned law to continue to protect culture and heritage of children without overstepping and infringing on their larger best interests. Children, regardless of their heritage, will be seen in a way that evaluates their greater needs and allows them to move forward with an equal right to thrive in life according to their individualized needs.
Review the legal history of this case here.

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