Law Life: In the absence of Solomon

Ted Streuli, The Daily Record Newswire

Baby Girl Veronica will probably have to leave Oklahoma.

That was the ruling of the U.S. Supreme Court.

It’s a heartbreaking story. In December 2008, the girl’s mother agreed to marry Dusten Brown, an enrolled member of the Cherokee Nation. About one month later, the mother informed her fiance that she was pregnant. By May 2009, the relationship faltered and the engagement was broken. Via text message, the mother asked Brown if he wanted to pay child support or terminate his parental rights. He opted for the latter.

Veronica was born on Sept. 15, 2009, in Oklahoma and put up for adoption. Because the Indian Child Welfare Act requires that Indian children remain with a tribal family, the mother’s attorney checked to see if Brown was on the Cherokee tribal roll. But the lawyer misstated Brown’s first name and misspelled the last. Not surprisingly, the name provided did not appear. The mother selected a non-Indian couple in South Carolina to become Veronica’s parents.

When Veronica was 4 months old, Brown was served with notice of the pending adoption and said he would not contest the proceeding. But the very next day, Brown claims, he realized he was not giving up custody of the child to the mother, but to an adoptive couple, Matt and Melanie Capobianco. And he changed his mind about raising his daughter.

It’s hard to have much sympathy for the father. He showed no interest in raising or supporting the baby and twice agreed to relinquish his rights. The mother decided she couldn’t adequately raise the child alone and found a couple who can. And somewhere well past the two-minute warning, Dad finally raised his hand and said, “Hold it,” something he had never done for his daughter.

The South Carolina courts decided the Capobiancos failed to prove the child would suffer in Brown’s care. And on Dec. 31, 2011, the couple were forced to hand Veronica over to her biological father.

Veronica was 27 months old at the time. That means she was walking, talking, running and doing a manageable job of getting her own spoon from plate to lips. It’s an age where children run to their parents and shout, “Mommy! Daddy!”

Imagine that little girl’s horror at being wrested from her home, from her parents, and taken by a man she didn’t know.

Five men of the Supreme Court on Tuesday morning said the South Carolina courts were wrong. Even though Veronica is 1.27-percent Cherokee, they argued, the Indian Child Welfare Act doesn’t preclude custody by the adoptive parents.

The child is now 3-1/2-years old, pedaling a tricycle and using the bathroom on her own. And she will likely lose her home a second time.

“Baby Girl has now resided with her father for 18 months,” Justice Sonia Sotomayor wrote in her dissent. “However difficult it must have been for her to leave adoptive couple’s home when she was just over 2 years old, it will be equally devastating now if, at the age of 31/2, she is again removed from her home and sent to live halfway across the country.”

When faced with such difficult personal decisions, male jurists tend to insulate themselves by looking only at the law. Women tend to look at the law and add looking at the face of an already tormented child.
All three women on the court dissented; Justice Antonin Scalia joined them. The majority opinion was unanimous in its maleness.

Our laws would be better, wouldn’t they, if the women on the bench outnumbered the men?

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