JURIST Guest Columnist Megan Lindsey, counsel for the National Council for Adoption, discusses the legal and practical impact of Adoptive Couple v. Baby Girl and the Indian Child Welfare Act...
n April 16, 2013, the US Supreme Court heard oral arguments on Adoptive Couple v. Baby Girl
. I had the privilege of being in the room as the justices took the bench and heard arguments. I've been keeping a close eye on this case for around two years now. As counsel for the National Council For Adoption
, I was honored to participate in the process of submitting amici
briefs to the Court on this issue and have gotten to know the case even better in the last few months.
It was a privilege to reconnect with friends in the child welfare community and meet new ones at the court that Tuesday morning. Several times, I was asked which side of this issue we came down on. I hate to answer that question. I can provide, in confusing detail, the legal argument we made, but I'm not sure that should really be the point. I don't think that's the first question we should be asking and while I stand by our briefs entirely, I'm not sure the explanation of our argument was really the best answer to the question.
For me, the point ought to be, how do I best take little Veronica's side? And how, as professionals, as Supreme Court justices, as a nation, can we all best unite to take every child's side as we consider this issue going forward? Many thousands of children's lives and futures have been and will continue to be impacted by the Indian Child Welfare Act. How do we best ask the Court to rule in a way that prioritizes Veronica's future and the future of all potentially impacted children within the framework of this law?
The facts in this case are not simplereal life rarely is. Summarily, a man enrolled in the Cherokee tribe and a non-native American woman were the biological parents to a child. 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 present from the moment of the child's birtha 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. Ultimately, 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 16 months.
There are a variety of individuals whose lives are personally and uniquely impacted by this casethe birthmother, birthfather, and the adoptive parentseach with their own rights that ought to be protected and voices that ought to be heard. Clearly though, the life most impacted by this decision is Veronica's. At three years old, she doesn't yet have the ability to exercise her own voice, nor the understanding of what has happened in her life, why, and what would help her to best grow and thrive in the future.
As professionals, as a court, as a nation, I hope the overriding question framing this case isn't: who gets the baby? I hope that we are a people who think: what can we do for this baby? There are a lot of tricky legal arguments in play in this case. They matter. I think cultural connection and tribal sovereignty should absolutely remain factors in deciding children's futures. I think biology matters too. And relationship really matterssuccessful, nurturing attachment with consistent caretakers is the very thing that builds our biological framework into functioning success. I think the most important thing though is that we look at the life before us. We need a law that allows us to look at a particular child and assert their needs, experiences, and capabilities to adapt of this specific child. We need a framework that allows us to think: "what will make you grow up feeling most safe, nurtured, and secure?" "What will provide you with the opportunity to live to your full potential?"
For National Council For Adoption that means sticking to what we know works: the best interests of the child standardadopted and employed in all 50 states for hundreds of years. Varying factors are suggested for consideration, but across the nation the standard is, in a nutshell: how do we care for this child in this situation. While there may be guidelines to help advise on certain types of special needs and situations that may be recurring amongst children, the "best interests" standard recognizes that children are not alike and they do not exist in a vacuum. They are each uniquely made up of a diverse selection of biology, experience, and connection. The "best interests" standard is a simple legal masterpiece. It allows for all the stuff that matters to matter. It doesn't say to any one factor: "you're a trump card. If the child is X or is impacted by Y, than nothing else matters." In this case, it feels a bit like Veronica's 3/256th Cherokee bloodmaking her eligible to enroll in the tribewas a trump card that labeled Veronica: "Indian: Keep Off" as Lisa Blatt, attorney for the adoptive parents so aptly put it during oral arguments. It left all the other biology, experience, or connection of Veronica with very little meaning at all.
And so, in the South Carolina Supreme Court ruling, Veronica's broader best interests got trumped by the 3/256th of her that is Native. She was as Paul Clement, who argued in her interest for the guardian ad litem, said: "ordered...sent to somebody who at least under state law and just [as] a matter of practicality is a stranger to her". What a terribly difficult thing to understand that any one part of you might trump all the others outside your control or desire. Life is difficult enough. Laws ought to act to protect us not divide us against ourselves. I don't know what's best for Veronica now. I'm with Justice Sonia Sotomayor who expressed: "I don't want to be that judge", who makes a best interests determination, if or when the Supreme Court's opinion remands for a South Carolina implementation. It would not be an easy decision for a child who has now lived a divided life. I do know though, that that determination does need to be made for Veronica specifically and she deserves someone willing to do the work of looking at all of her biology, experience, and connection and deciding what will provide her the opportunity to grow and thrive".
While, we, of course, chose a legal side in this case, I think by the time a case makes it to the US Supreme Court, it's easy to get lost in the adversarial nature and legal theory of it all. I think we ought to remember that if we all find ourselves on Veronica's side, good decisions are bound to follow. On a day when experts' minds contemplated subrules of subparts of a complicated law, I wish that every time I was asked what side we were on, I'd confidently said: "Veronica's" before explaining the more detailed argument National Council For Adoption made. I hope that Veronica, and the many thousands of children to be impacted in the future, will be a thought that weighs heavily on the justices' minds as they face the difficult decision before them in this case.
Megan Lindsey, as Director of Public Policy & Education, oversees National Council for Adoption's (NCFA) Advancing Adoption Policies Initiative promoting NCFA's policy initiatives through federal and state government education and engagement, collaboration with like-minded organizations, and public awareness and engagement on government relations.
Suggested citation: Megan Lindsey, What about Veronica?: A look into Adoptive Couple v. Baby Girl, JURIST - Sidebar, May 6, 2013, http://jurist.org/sidebar/2013/05/megan-lindsey-adoptive-couple.php.
This article was prepared for publication by Stephanie Kogut, the Section Head of JURIST's professional commentary service. Please direct any questions or comments to her at firstname.lastname@example.org