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Tuesday, June 25, 2013

"Baby Veronica" Decision and Language in Supreme Court Opinions

The Court decided the 'other' family law case from its docket this year. The case centers on the Indian Child Welfare Act (ICWA) and fatherhood. The 5-4 majority decided to return the child, now 3 1/2 years old, to her adoptive parents. (An aside--the majority includes both Justice Roberts, who adopted children, and Justice Thomas, who raised children not his own, although I'm not sure if he actually adopted them).

This is not a clear cut case. Certainly among the family law scholars' community it was open to much more debate than the same-sex marriage cases. For an excellent discussion by a range of expertsat the time of the oral arguments, see FamilyinLaw blog.

On the one hand, there are the interests of the child, Veronica, who lived with the (white) adoptive parents from her birth for over 2 years. The mother here, who is not Indian, placed the child for adoption at birth; the father, who is part Cherokee, was not notified for about four months. There is also the concern that prospective adoptive parents will be deterred if we allow adoptions to be reversed/blocked when well under way.  Justice Alito, writing for the majority, flags that concern on page 16 of the opinion. On the other hand, there is the history underlying ICWA which builds in extra protections for Indian families and tribes, based on the egregious, and shockingly recent, history of taking Indian children from their homes and communities and placing them in white families or boarding schools with no real process. There is also concern over parental rights, which Scalia raises in his dissent, particularly of unwed fathers who often get short shrift. Here, the child has lived with her father for almost 2 years, after she was returned to him by the South Carolina Supreme Court. There are no allegations that he is unfit in any way.

The majority opinion, however, does an injustice to these weighty issues. First, although acknowledging (in a footnote, natch) that Veronica qualifies as an "Indian child" under the statute, Justice Alito begins his opinion with the line: "This case is about a little girl who is classified as an Indian because she is 1.2% (3/256) Cherokee." No one is challenging that classification, but this opening line makes apparent what the Justice thinks of tribal membership and relatedly family ties. He then goes on to justify the decision to return Veronica to her adoptive parents by interpreting two statutory terms "continued custody" and "breakup." The dissents, particularly Justice Sotomayor's (26 pages to the majority's 17) point out that "literalness may strangle meaning." More importantly, Sotomayor's dissent actually tries to grapple with the difficult issues of family, parenthood and adoption raised by this case.

I wasn't sure how I felt about this case for a long time. For this reason, I declined to sign on to an amicus brief. After oral arguments, I tentatively decided that I thought Veronica should remain with her father. But it did not raise the strong feelings I have as to other family law cases, such as the same-sex marriage cases. Nonetheless, Alito's opinion is leaving me somewhat outraged. The snide tone and glib use of dictionary definitions undercuts the reality of the issues involved.

The saddest thing about this case is that there is no way to, forgive me, "split the baby." Open adoption and the parsing out of parental rights is still too rare. Family law in many instances has to catch up with reality, in which many adults other than legal parents play a significant role in a child's life, and where parenthood is not capped at two.  (I blogged about the numbers issue last year). Opinions focusing myopically on three words and ignoring the emotions and experiences of the parties involved only perpetuate this unfortunate disconnect between the law and reality.

Posted by Cynthia Godsoe on June 25, 2013 at 02:41 PM | Permalink


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Sadly, Veronica was kidnapped and the courts allowed it. The people who took her will never be her parents, no matter what some legal lie states. She was issued a slave name and is now forced to live with her captors. I hope she gives them hell every damned day. The kidnappers, Matt and Melanie Capobianco, clearly were only interested in their best interests and in no way love this child if they were so eager to rip her away from her father and family. The adoption was barely legal, unethical and completely and utterly unnecessary. There's a special place in hell for entitled baby thieves. Veronica Brown will go home eventually. That adoption will not hold forever.

Posted by: R.L. | Jul 23, 2014 10:33:16 PM

"There is also the concern that prospective adoptive parents will be deterred if we allow adoptions to be reversed/blocked when well under way."

This is not a "concern" despite the fact that the briefing and the majority opinion tried to make it one. There are ample Indian families available to adopt Indian children. As the Cherokee Nation noted in their briefing, there are more than 200 tribal-member families that are approved and waiting to adopt Indian children. They do not need to be "saved" by white families. This child was a healthy newborn girl. Any family law expert knows that the demand greatly exceeds the supply of such children in the United States.

The adoptive couple knew who the biological father was. They chose to wait for four months to provide him with notice of the adoption, more than likely because they knew he would object and they hoped to strengthen their case. I'm not sure how that makes them sympathetic.

One can only hope that on remand this child will not be removed again.

Posted by: CBR | Jun 25, 2013 6:11:34 PM

Sad, sad case but great post.

But what's the right answer? Some shared custody arrangement between adoptive family and biological father? Something else? I don't much care for Justice Alito's opinion. But I'm not sure what the best result should be, even if we're not confined to an either-or dilemma . . .

Posted by: SparkleMotion | Jun 25, 2013 4:08:23 PM

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