Brent Leonhard, an attorney for the Confederated Tribes of the Umatilla Indian Reservation in Oregon, was asked by Indian Country Today Media Network to weigh in on the controversy over the South Carolina Supreme Court ruling to remove three-year-old Veronica Brown from her biological father and give her to an adoptive couple. ICTMN previously featured Leonhard’s work in a story about the Violence Against Women Act. —Gale Courey Toensing

The decision from the South Carolina Supreme Court is horrifying. The Court’s decision is contrary to Umatilla Tribes’ laws and policies that focus on the best interests of the child. The idea that a child can be removed from one person’s custody and placed in another’s without a determination that it is in the child’s best interest should be of deep concern to everyone. In fact, the Guardian Ad Litem’s amicus brief before the U.S. Supreme Court in favor of the adoptive parents itself argued strongly, and persuasively, that a child has a fundamental liberty interest to such a determination.

Sadly, here the State Supreme Court mechanically applied the law without such a determination. They in effect said that the Indian Child Welfare Act (ICWA) does not apply, as the U.S. Supreme Court ruled, so they look to the state’s law. Under South Carolina state law, an unwed father’s consent to adoption isn’t necessary with regard to a child being placed in an adoptive home within six months of her birth unless either (1) the father either lived with the child or child’s mother continuously before the placement or (2) the father paid reasonable child support. In this case, the court holds, the father did not meet either criteria. So, under state law the father’s consent wasn’t necessary to approve the adoption. They then hold that there is no separate need to terminate the father’s parental rights as, pursuant to that state’s law, it is automatic upon the issuance of a final adoption decree. With that, the majority directed that the family law court promptly enter an order approving and finalizing the adoption thereby terminating the father’s parental rights.

Shockingly, the majority did not require that there first be a determination that transferring Baby Veronica is in her best interest. While the majority wrote that “there is absolutely no need to compound any suffering that Baby Girl may experience through continued litigation,” there is absolutely no recognition that a transfer of physical custody at this point could cause serious harm to her and lifelong suffering. The two dissenting justices, rightly, would require that the lower court make a best interest determination before a final decree is entered or transfer of Veronica occurs.

I don’t know what Veronica’s options are at this point, but I would hope there is an attempt to at least argue that the U.S. Constitution’s Due Process Clause conveys a fundamental liberty right upon Veronica that a best interest determination be made before a state can transfer her to the adoptive couple. And, I don’t think the majority of the U.S. Supreme Court contemplated that a transfer would occur without such a determination. In fact, at oral argument Paul Clement [the adoptive couple’s attorney] had a back and forth with Justices Sotomayor, Ginsburg, and Kennedy on this very issue.

Here it is:

MR. CLEMENT: Well, Justice Sotomayor, I'm here representing the guardian who represents the best interest of the child. From the child's perspective, the child really doesn't care whose fault it was when they were brought in one custodial situation or another. They just want a determination that focuses on at the relevant time, that time, what's in their best interest. And so in the same way that we think if you rule in our favor and you remand to the lower court that there has to be a best interest determination that takes into account the current situation, notwithstanding that that would be on the hypothesis that the last 15 months 24 of custody were based on a legal misunderstanding, we still think this girl -

JUSTICE SOTOMAYOR: So we're going to freeze it at that point or are we going to freeze it today, after the child's been with his—with her father for 2 years?

MR. CLEMENT: You freeze it at the time that somebody's talking about -

JUSTICE SOTOMAYOR: I don't want to be that judge, by the way.

MR. CLEMENT: You freeze it at the time that somebody's talking about changing a custodial situation. But what is so tragic here is that the lower court applied 1912(d) and (f), which are clearly designed for a situation when you're contemplating transferring custody away from an existing custodial relationship. They looked at that and applied those inapposite standards to create a transfer to somebody with new custody.

Now, the Solicitor -

JUSTICE GINSBURG: What about now, when you said the best interest. Now the child has been some 15 months with the father. So if a best interest calculus is made now, you would have to take into account uprooting that relationship, would you not?

MR. CLEMENT: Absolutely, Justice Ginsburg. We're not here to try to say that anybody is entitled to automatic custody of this child based on some legal rule.

JUSTICE KENNEDY: And I -- and I take it you'll say that that goes back to this South Carolina court if you prevail?

MR. CLEMENT: Absolutely. And I would hope with instructions to please make that determination as quickly as humanly possible.

To put it bluntly, I am shocked and disgusted by the South Carolina Supreme Court’s majority decision. Whatever the outcome, and whatever anyone may think of the parents or adoptive couple, Veronica has a basic human and constitutional right to a best interest determination before any transfer occurs.