I think the US Supreme Court got it right. We'll just start there. When I wrote on this case before, I expressed my discomfort with the many questions regarding which side of this case we came down on due to the fact that the tricky details of a real child's life come into play. Still, the National Council for Adoption became involved in this case in order to help the lives of many children to come. Since the question everyone is asking now is something along the lines of "Do you think the Court got it right?", I'll go ahead proclaim my agreement with Justice Alito's opinion from the start.
What's next for Veronica?
Veronica should never have been removed from Adoptive Couple it wasn't in her best interest to face the trauma of being removed from the only family she'd known, it wasn't appropriate under state law's definition of a father, and now, according to the Supreme Court, it wasn't necessary under the Indian Child Welfare Act (ICWA). I'm glad I'm not the South Carolina judge who this case has been remanded to. I can only imagine that it will feel nearly impossible to get a decision like this just right when so much has already gone wrong. The best interests standard seems much more difficult to apply now. The trauma of removing a child from the only family she's ever known to the custody of a biological father who had been a complete stranger up to that point cannot be undone. However, we're about eighteen months past that point and Dusten Brown is no longer a stranger. Brown has now served as Veronica's primary caretaker and unquestionably, some parental attachment has been formed. Eighteen months in the life of a child is an extremely significant amount of time particularly a child in the young developmental years. Although Brown could have provided a far gentler transition for Veronica by allowing continued contact with the adoptive parents, Matt and Melanie Capobianco, I have heard no evidence that indicate that Brown has provided any sort of problematic environment during the last eighteen months. Still, Veronica is young and should be able to thrive in either environment at this point. A thorough, but expedient examination of Veronica's unique needs at this point in her life needs to occur in order to make that decision. And while I am in no position to make that decision and without having made that careful review, I think it is worth considering that we may need to think outside our too often adversarial notions for a moment and consider some variations in her future care options.
Veronica may best thrive with the influence of any and all the characters at play in this story. One reasonable option might be to allow some degree of continued communication and connection between Veronica and all parties. The grown-ups need to act like adults here. Although there are perhaps some hard feelings, reasonable adults share the care and custody of children to varying degrees all the time because it is best for the children. In cases of divorce, open adoptions and terms while children are in kinship or foster care settings more than one adult influence touch their lives. Legal mechanisms are neatly in place for compromises that prioritize kids. In my opinion, we need to be very careful about saying anybody has the right to parent until we've looked first at Veronica's needs and right to be parented in a way that meets those needs. This is not a property dispute, this is a life dynamic, unique, and living through the developmental years that will frame her whole future. A judge who has that in mind will have a great framework to move forward from.
What's Next for Children and the Indian Child Welfare Act
In my opinion, the Court did their job well here. They looked closely at the broad intent of the law and the specific language of the Act which provided a narrowly tailored response that neatly addressed the facts of this case while preserving the law's intent. Interestingly, Justice Alito alludes to some potential equal protection concerns if the facts were slightly different, but finds a narrow way to address this concern that doesn't necessitate that level of review. Justice Thomas' concurring opinion also poses some interesting questions regarding the constitutional appropriateness of the ICWA. Looking forward, it seems reasonable to watch and wonder if a future Supreme Court makeup would take up a case regarding these aspects of this law.
ICWA stands with a bit more clarity. Courts and practitioners will have a better understanding of how to proceed to provide appropriate care to children when ICWA is implicated. A good intentioned law remains and has been redirected to its original intention: preventing the inappropriate breakup of Indian families. The court decided Adoptive Couple v. Baby Girl in a way that maintains culture and heritage as a priority without overlooking the fact that no two children live the same life and the law must provide the flexibility to protect them all.
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, Adoptive Couple v. Baby Girl What's Next?, JURIST - Sidebar, July 17, 2013, http://jurist.org/sidebar/2013/07/megan-lindsey-what-now.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 email@example.com