July 5, 2013 14:54 Age: 292 days

Woodhouse: Child’s Best Interests Should Guide Adoptive Couple v. Baby Girl

By Barbara Bennett Woodhouse

While all eyes were focused on the marriage equality cases, the Court handed down its decision in another family law case, Adoptive Couple v. Baby Girl, Birth Father and the Cherokee Nation. Baby Girl’s mother had placed her with a South Carolina couple after the birth father had told her via text message that he would rather give up his rights than provide child support. The birth father, a member of the Cherokee Tribe, changed his mind and invoked the federal Indian Child Welfare Act (ICWA) restrictions to block the adoption. ICWA, passed in 1978, was Congress’ response to the tragic history of wholesale and unnecessary removal of Indian children from their families. The South Carolina court interpreted ICWA as foreclosing termination of the birth father’s rights and ordered the child, now two years old, removed from the only family she had ever known and transferred to her father in Oklahoma. The adoptive parents and Baby Girl’s Guardian ad Litem petitioned for certiorari and won their case. But by the time the Supreme Court handed down its opinion, Baby Girl had bonded with her birth father during 18 months in his care.

Cases like Baby Girl demand the wisdom of Solomon, but they rarely get it. Unlike a piece of property that can be placed in escrow, children continue to develop while adults bicker and court cases drag on. A change of custody from the loser to the winner can exact a heavy price from the child. Childhood trauma, such as loss of an attachment figure, can alter the architecture of the developing brain and repeated loss can impair the child’s capacity for trust. The Emory Child Rights Project, joined by several other child advocacy groups, filed a friend of the court brief arguing that Baby Girl has a constitutional right to a decision on her custody that is responsive to her needs and interests. We argued that her welfare must be evaluated in real time—with reference to her current reality. We urged the Court to make clear that adults’ rights should not override those of the child.

The majority opinion, written by Justice Alito, and joined by Justices Roberts, Thomas, Kennedy, and Breyer, fails to grapple with the difficult issues raised by the case. Instead, it tortures the language of the statute to find that an Indian parent must have had custody of his child before she was placed in order to invoke the ICWA protections. Even more strained is the majority’s reading of ICWA’s statutory preferences on adoptive placement. Intended to encourage initial placements with Native Americans, ICWA establishes a preference for family and tribal members. According to the majority, these preferences only apply when a competing petition has been filed—a reading that will lead to a battle of competing petitions that is in nobody’s best interest. Justice Sotomayor’s cogent dissent, joined by Justices Kagan, Ginsburg and, in part, Scalia, demolishes the majority’s statutory analysis point by point.

Why engage in such a tortured and implausible reading? The majority states without explanation that its reading of the statute may be necessary to avoid a violation of equal protection. Critics have argued that ICWA discriminates against children who have even a tiny quantum of Native American blood by making their adoptions more difficult. In order to avoid grappling with this or other tough issues, the majority turns a clear statutory scheme into a tangle of contradictions. To comply with ICWA, must Baby Girl be shipped back from Oklahoma, once again severing crucial attachment relationships? May the tribe or the grandparents file an adoption petition in South Carolina to invoke the ICWA preferences? May the court order a hearing into the child’s best interests or must it award sole custody to the winner of the legal contest regardless of harm to the child? While hard cases often make bad law, uncertainty about outcomes can also incentivize the kind of collaborative resolution that is in the child’s best interest. Perhaps the parties will prove wiser than the judges, and will agree on a custody arrangement that recognizes all the child’s important family relationships including her relationship with the Cherokee Tribe.

Professor Woodhouse’s profile

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