Could Justice Breyer’s Concurrence Help Save Baby Veronica?

Take a look at Justice Breyer’s concurrence. Last paragraph:

Third, other statutory provisions not now before us may nonetheless prove relevant in cases of this kind. Section 1915(a) grants an adoptive “preference” to “(1) a member of the child’s extended family; (2) other members of the Indian child’s tribe; or (3) other Indian families . . . . in the absence of good cause to the contrary.” Further, §1915(c) allows the “Indian child’s tribe” to “establish a different order of preference by resolution.” Could these provisions allow an absentee father to re-enter the special statutory order of preference with support from the tribe, and subject to a court’s consideration of “good cause?” I raise, but do not here try to answer, the question.

Presumably, the litigation will continue on remand to the South Carolina courts below.


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4 Responses to Could Justice Breyer’s Concurrence Help Save Baby Veronica?

  1. Phil says:

    I imagine this could be the deciding argument below. My family law knowledge is essentially zero, but my understanding of this case is that the state court cancelled a pre-adoptive placement with Adoptive Couple under the theory (right then, wrong now) that ICWA prohibited involuntary termination of the birth father’s parental rights. When the case goes back down to state family court, Baby Veronica’s future will be decided under some combination of Best Interest of the Child and whatever ICWA provisions are still applicable. I assume the court on remand decides what is in the child’s best interest TODAY, and is not required to ignore the last two years of her placement with the father.

    Assuming it is purely best interest standard, the birth father has no constitutionally protected parental rights, but has had custody for 2 years or so and there is no evidence, to my knowledge, that he has been anything but a caring and fit parent. The adoptive couple demonstrated care for the birth mother and the child pre-birth until they lost custody, and I understand are better educated and have better economic status than does the birth father (although there is every indication the birth father and his wife are effectively providing for the family). I know what I would pick for the child’s best interest at this point, but lets say a family court judge might go either way.

    Unless it is procedurally barred for the father to seek adoptive custody at this point, the birth father would obviously be the top preference under ICWA. There is no good cause to overlook the preference because he has proven to be a fit parent with a history of custody of the child. There may be good cause to deny placement to some heretofore unknown party who fits under the preferences because of the prior placement with the adoptive couple, but that would not defeat the father’s preferential claim.

  2. Interested Party says:

    I don’t think Breyer’s concurrence saves Baby Veronica at all. Take a look at the portion of the majority opinion that makes me come to such a conclusion:

    “[T]he South Carolina Supreme Court suggested that if it had terminated Biological Father’s fights, then [Section] 1915(a)’s preferences for the adoptive placement of an Indian child would have been applicable . . . however, the court failed to recognize a critical limitation on the scope of [Section] 1915(a) . . . [Section] 1915(a)’s preferences are inapplicable in cases where no alternative party has formally sought to adopt the child. This is because there simply is no “preference” to apply if no alternative party that is eligible to be preferred under [Section] 1915(a) has come forward. In this case, Adoptive Couple was the only party that sought to adopt Baby Girl in the Family Court or the South Carolina Supreme Court.”

    Based on this language, the Court is essentially requiring the South Carolina Supreme Court, absent discovery of new facts, to order Baby Veronica to be placed with the Adoptive Couple. From my reading, that part of Breyer’s concurrence seemed concerned with the effect of Section 1915(a) on other cases of this nature, but not on this particular case (i.e. he was concerned about similar cases where other parties had actually petitioned for adoption).

  3. Philp says:

    Both sides make valid arguments. I tend to agree with “Interested Party’s” reading of Breyer’s comment. I also tend to agree with the majority that this is not the type of case that ICWA was intended to address. Following South Carolina adoptive law, Adoptive couple wins and ICWA is not negatively affected.

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