The JURIST posted a piece interviewing Megan
Lindsey (Regent Law 2007) which highlighted her work on an amicus brief
for the Supreme Court
of the United States case regarding adoption and the Indian Child
Welfare Act. The piece posted on July 17, 2013 was entitled “Adoptive
Couple v. Baby Girl — What's Next?” Read an introduction to Megan’s
insight below, and catch the full interview at the JURIST:
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….
I have discussed the importance of adoption to the best interests of the child in a piece entitled
Tracing the Foundations of the Best Interests of the Child Standard in American Jurisprudence,
10 J. L. Fam. Stud. 337(2008)
which can be downloaded at SSRN. As National Adoption Month November is a great time to remember that adoption provides a family for a child in need of one,
and is a pivotal part of family restoration.
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