Brief of the Week: Star advocates face off in high-profile adoption case
4 December 2012
The National Law Journal
The custody battle over Baby Veronica has been spotlighted on television by the likes of Dr. Phil and Anderson Cooper.
Now the case is before the Supreme Court, with briefs filed by the legal equivalents of those media stars—veteran appellate advocates Lisa Blatt and Charles Rothfeld, as well as former solicitors general Paul Clement and Gregory Garre. And that's before court has even granted review.
Titled Adoptive Couple v. Baby Girl, a minor under the age of fourteen years, Birth Father and The Cherokee Nation, the case is a test of the Indian Child Welfare Act, passed in 1978 to preserve Native American families. In custody battles, the law gives highest priority to keeping the child in the care of Indian parents and tribes whenever possible—a requirement that can sometimes clash with the "best interests of the child" standard otherwise used to resolve such disputes.
Veronica was born Sept. 15, 2009, in Oklahoma to an unwed and separated couple consisting of a non-Indian woman and a Cherokee father. The mother decided to put the child up for adoption, without telling the biological father. A couple from Charleston, S.C., adopted and began raising her. When the father learned of the adoption, he went to court to establish paternity and custody, invoking the Indian child welfare law.
South Carolina courts sided with the father. The state supreme court said it ruled with a "heavy heart," in light of the fact that the Veronica was being cared for by "ideal parents." Last New Year's Eve, with television cameras recording the event, Veronica was turned over to the father, who returned to Oklahoma. The adoptive parents decided to appeal the U.S. Supreme Court, and their lawyer, Mark Fiddler of Minneapolis, contacted Blatt of Arnold & Porter—who trades back and forth the distinction of most Supreme Court cases argued by a woman with Patricia Millett of Akin Gump Strauss Hauer & Feld.
Whether or not the case will pique the court's interest is uncertain. In her petition, Blatt asserts that state courts are "openly and intractably divided," with courts in at least 11 states finding that the federal law does not keep them from terminating the parental rights of a noncustodial Indian father when the father abandoned the child to a non-Indian mother. The issues at stake in the case, she said, are "critical questions involving the administration of ICWA in thousands of custody disputes each year." She added, "The decision below sends a chilling message to any couple wishing to adopt a child of Native American descent."
Her arguments are bolstered in briefs by two D.C. appellate teams: former SG Clement of the Bancroft firm, joined by colleague Kelsi Brown Corkran; and Lori Alvino McGill of Latham & Watkins, joined by colleague and former SG Garre. Blatt worked in the SG's office during the tenure of both Clement and Garre. Blatt and McGill are former clerks to Justice Ruth Bader Ginsburg, and Corkran will be clerking for Ginsburg next term.
Representing the guardian ad litem named in South Carolina to represent Veronica, Clement wrote in the brief, "Both because of the broader jurisprudential significance of the issues presented and because of the dramatic impact on the respondent child, it is imperative that this court grant plenary review." The guardian ad litem had recommended leaving the child in the custody of the adoptive parents. Clement also asserts that by overriding the interests of the child based only on the race of the birth father, the Indian child welfare law raises "serious equal protection concerns."
Latham filed another brief urging the court to grant review, this one on behalf of the "amica curiae" birth mother who, the brief states, is "uniquely situated to speak to the profound effect of the decision below on the deeply personal, fundamental and lawful choices made by child-bearing women." The brief also asserts that "The decision below effectively negated Birth Mother's decision to place Baby Girl with Adoptive Couple, and ripped Baby Girl from the only family she has ever known, in derogation of both Birth Mother's and Baby Girl's rights and expectations under state law."
Charles Rothfeld of Mayer Brown, also an experienced high court advocate, filed a response November 30 on behalf of the respondents in the case. Rothfeld became involved through the Yale Law School Supreme Court Clinic, which is affiliated with Mayer Brown. Rothfeld said the South Carolina court ruled correctly. He argues that the claims of issue conflicts made by Blatt and the other briefs are "wrong at every level" and were either irrelevant or waived in the litigation below.
"We of course recognize that the dispute here is a painful and wrenching one because it involves child custody," Rothfeld wrote. "But it is not a dispute where this court's intervention is appropriate." The briefs will likely be distributed to the justices for discussion at a private conference in coming weeks.
Reprinted with permission from the December 4, 2012 edition of The National Law Journal © 2012 ALM Properties, Inc. All rights reserved. Further duplication without permission is prohibited.