Thicker than water

By S.M. | NEW YORK

DIVISIVE questions dominate the Supreme Court’s docket this year, but the most emotional decision coming down this month addresses a tug-of-war custody battle over a little girl named Veronica. In the unfortunately titled case Adoptive Couple v. Baby Girl, the court will rule on whether the biological father of a three-year-old had the legal right to reclaim his daughter after she had been given up for adoption. It’s a lose-lose situation: either the adoptive parents who raised Veronica from birth for 27 months, or her biological father, with whom she has lived since January 2012, will be heartbroken when the justices render their decision.

Discussion surrounding the case has focused on what is in the best interests of the child, but the legal question is oddly divorced from that inquiry. According to the Indian Child Welfare Act (ICWA), a 1978 law combating the removal of Native American children from their homes and reservations, a number of procedural safeguards must be followed before Indians are adopted by outsiders. Dusten Brown, the biological father and a member of the Cherokee Nation, signed away custody rights to Veronica’s mother, but subsequently objected when he discovered Veronica had been adopted by Matt and Melanie Capobianco, who are not Native American. Based on several provisions in the ICWA, a family court awarded custody to Mr Brown, and the South Carolina State Supreme Court affirmed the ruling on appeal. The Capobiancos were forced to hand over the child in a tearful parting.

The Supreme Court decision, coming in the next two weeks, should be close. Based on their questions during oral argument, Justices Ginsburg, Scalia and Sotomayor are poised to rule for the biological father and Justice Kagan seems likely to join them. But Chief Justice Roberts, along with Justices Breyer and Alito, seem more sceptical that the ICWA gives Mr Brown custody. Justice Thomas, true to form, was mum during the oral argument. Justice Kennedy, also true to form, was inscrutable, lamenting that he couldn’t call upon King Solomon to sort things out.

So a 5-4 or 6-3 decision seems likely. Whichever way the justices rule, they will address (or skirt) some wrenchingly difficult questions. Among them are two biggies:

1. What is a parent? Much of the oral argument revolved around whether Mr Brown should be construed as a mere “sperm donor”—since he had no relationship with Veronica in the first two years of her life—or as a father with full custodial rights under the ICWA. For Justice Scalia, it’s simple: “this guy is...the father of the child...and they’re taking the child away from him even though he wants it.” Case closed. But the attorney for the petitioner insisted that the ICWA doesn’t apply since “there is no Indian family” that the adoption by the Capobiancos was breaking up. Mr Scalia's adamancy about biology is interesting given his ruling in 1988 that the husband of an adulterous wife who conceived and bore a child through her lover was unquestionably the baby’s father in the eyes of the law, genetics be damned. Since the "presumptive father" had cared for the child and exercised parental responsibilities for him, Mr Scalia had reasoned, he was the legal parent despite the lack of a biological connection. All signs point toward Mr Scalia coming to exactly the opposite judgment this time around.

2. When are racial classifications permissible? Chief Justice Roberts is famous for his faux-tautological contention that “the way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” Justice Scalia has made a similar point time and again, as he did in the Adarand case in 1994:

To pursue the concept of racial entitlement—even for the most admirable and benign of purposes—is to reinforce and preserve for future mischief the way of thinking that produced race slavery, race privilege and race hatred.

Suddenly Mr Scalia seems less perturbed by racial identity serving as the centerpiece of a legal claim. In a brief on behalf of Baby Veronica, Paul Clement, a conservative lawyer representing the child's guardian in the case, points out a connection to Palmore v. Sidoti, an equal-protection case:

In Palmore, this Court struck down the use of racial classifications to remove a child from an appropriate custody placement. This case is no different. Baby Girl’s Indian blood quantum was the sole reason the lower court ordered her removed from the loving, stable home she had lived in since birth and placed with a biological father whose failure to timely care for her extinguished any parental rights he might otherwise have had under state law or the Constitution.

The Indian Child Welfare Act was designed “to protect the best interests of Indian children and to promote the stability and security of Indian tribes and families.” It is a federal response to America's long and grim history of forcibly removing American Indian children from their homes. In the view of Marcia Zug, a law professor at the University of South Carolina, "without ICWA, the future of American Indian tribes is imperiled."

Yet if the ICWA is to protect both the tribe and the child, as it promises to do, the question of Veronica's best interests must be considered as well. If it weren’t for Veronica’s few drops of Cherokee blood, Mr Brown would have had no legal basis for removing her from the custody of the Capobiancos in 2012. When a confused, crying Veronica was taken from her adoptive parents at the age of two, her individual interests were sacrificed to those of the Cherokee tribe. We can argue about whether that move was justified. But now Veronica's circumstances have changed. She is living with her biological father, and the Capobiancos are fading from her memory. Wrenching her away from the parent who has raised her for the past 18 months would only compound Veronica's confusion and double her misery. However the court rules, we can only hope that the sad episode of this Solomonic custody case will not be repeated with other children.