Law
5:21 am
Wed June 26, 2013

Supreme Court Sides With Adoptive Family In Dispute

Originally published on Wed June 26, 2013 7:21 pm

Baby Veronica still does not have a permanent home.

The adopted, 3-year-old Native American girl has been caught in the middle of an emotional custody battle that reached all the way to the U.S. Supreme Court, whose ruling on Tuesday sided with her white adoptive parents, Matt and Melanie Capobianco.

In a 5-4 decision, the Supreme Court ruled in Adoptive Couple v. Baby Girl that Veronica's biological father, Dusten Brown, who is a registered member of the Cherokee Nation, does not have parental rights under the Indian Child Welfare Act because he "abandoned the [American] Indian child before birth and never had custody of the child."

The Indian Child Welfare Act, also known as ICWA, protects Native American tribes from having their children separated from their families and given to white adoptive or foster parents.

The Supreme Court opinion reverses the 2011 decision of South Carolina courts, which ruled that under ICWA, the Capobiancos, who agreed to adopt Baby Veronica before her birth, had to turn the child over to her biological father.

An Uncertain Fate

The decision was good news for Veronica's biological mother, Christy Maldonado, according to her attorney Lori Alvino McGill.

"I think it's fair to say that she's extremely relieved [and] hopeful that this means that she and the Capobiancos will soon be reunited with Veronica," McGill says.

The lawyers for the Capobiancos and for Veronica's biological father could not be reached for interviews after Tuesday's ruling, but the adoptive couple did release a written statement:

"We are very happy with [the] ruling that came down [Tuesday]. The Supreme Court did everything we asked it to do. The decision of [the U.S. Supreme Court] clearly establishes that our adoption should have been approved, and Veronica should never have been taken away from her home and family in the first place. We miss her very much and we are looking forward to the opportunity to see our daughter very soon."

Where Baby Veronica will ultimately be placed is still an unanswered question. Tuesday's Supreme Court ruling returns the case to the lower courts to decide who should have custody.

A Messy Case

Marcia Zug, a law professor at the University of South Carolina who's been following the case closely, says it's important to remember that the Capobiancos have not yet completed the adoption process — a complication that will be reconsidered by judges in South Carolina.

Veronica is currently living with her biological father in Oklahoma. Her placement there came after a complex saga.

After Veronica's birth mother — who court documents say is "predominantly" Latino — became pregnant, she refused to marry Brown. He later texted Maldonado to say he was giving up his parental rights and would not support the child.

But when Brown found out that their daughter had been put up for adoption in South Carolina, he went to court to get full custody of Veronica, citing the Indian Child Welfare Act. (For a fuller picture of the messy situation, check out reporting by NPR's Nina Totenberg and Tim Howard of WNYC's Radiolab.)

A Major Test

The Supreme Court case has been a major test for ICWA, says Mary Jo Hunter, who teaches Native American law at Hamline University in Minnesota.

Advocates of the 1978 federal law feared that the Supreme Court would rule the ICWA unconstitutional. The final ruling, however, proved to be narrow — only disqualifying Native American parents like Brown who either gave up or never had custody.

But Hunter says situations similar to Baby Veronica's are fairly common within the Native American community, given that many Native American children just have one Native American parent.

She fears that as a result, the high court's ruling may ultimately put one of the main goals of ICWA — to keep American Indian children in American Indian families — at risk.

C. Steven Hager, an attorney with Oklahoma Indian Legal Services, also expresses concerns about the ramifications of the decision.

"Any fathers' rights groups should be feeling a cold chill go down their spine, because basically I don't think fathers' rights are going to stand very well," Hager says.

In his majority opinion for the Supreme Court, Justice Samuel Alito criticized the lower court for ruling in favor of Baby Veronica's biological father:

"As the State Supreme Court read [the Indian Child Welfare Act], a biological [American] Indian father could abandon his child in utero and refuse any support for the birth mother — perhaps contributing to the mother's decision to put the child up for adoption — and then could play his ICWA trump card at the eleventh hour to override the mother's decision and the child's best interests. If this were possible, many prospective adoptive parents would surely pause before adopting any child who might possibly qualify as an Indian under the ICWA."

Hager adds that the Supreme Court's decision will probably spark more litigation around ICWA.

Copyright 2013 NPR. To see more, visit http://www.npr.org/.

Transcript

RENEE MONTAGNE, HOST:

By far the biggest news out of yesterday's Supreme Court rulings was that it struck down a key part of the Voting Rights Act. Let's hear now about another opinion, this one involving the reach of another law, the Indian Child Welfare Act. That 1978 law protects Native American tribes from having their children separated from their families and given to non-Native adoptive or foster parents. The law is at the center of an emotional custody battle for an adopted American Indian girl whose fate is still in question.

NPR's Hansi Lo Wang has our story.

HANSI LO WANG, BYLINE: The case is known as Adoptive Couple v. Baby Girl. And that baby girl is three-year-old Veronica. Here she is earlier this year on WNYC's Radiolab.

DUSTEN BROWN: Are you a good swimmer?

VERONICA: Yes. I'm a good swimmer.

WANG: She's currently living with her biological father, Dusten Brown, in Oklahoma. Her placement there came after a complex saga that put into question who should have custody. After Veronica's birth mother, Christy Maldonado, became pregnant, she refused to marry Brown, who considers himself part Cherokee. [POST-BROADCAST CORRECTION: We should have made clear that Brown is a registered member of the Cherokee Nation, according to court documents.]

He later texted the mother to say he was giving up his parental rights and would not support the child. But when he found out that Veronica had been put up for adoption in South Carolina, he went to court to get full custody of his daughter. Eighteen months ago, the South Carolina courts ordered the adoptive parents, Matt and Melanie Capobianco, to turn baby Veronica over to her biological father. They based their ruling on the Indian Child Welfare Act.

But the U.S. Supreme Court ruled yesterday that the law should not be applied to this case. Because, the court said, Dusten Brown had given up custody before the child was born. The decision was good news for Christy Maldonado, says her attorney Lori Alvino McGill.

LORI ALVINO MCGILL: She is ecstatic. I mean, I think it's fair to say that she's extremely relieved, you know, hopeful that this means that she and the Capobiancos will soon be reunited with Veronica.

WANG: Hopeful but not certain, because yesterday's Supreme Court ruling was not clear about whether the adoptive couple would regain custody.

MARCIA ZUG: It would have been clear had the court come out the other way.

WANG: Marcia Zug is a law professor at the University of South Carolina who's been following the case closely.

ZUG: The Capobiancos never actually were able to adopt Veronica. So there was no adoption that went through.

WANG: A complication that will be reconsidered by judges in South Carolina; the Supreme Court's ruling returns the case back to the lower courts to decide who should have custody of Veronica.

The lawyers for the Capobiancos and for Veronica's biological father couldn't be reached for interviews. But the adoptive couple did release a statement, saying the Supreme Court's decision clearly establishes that their adoption should have been approved.

This case has been a major test for the Indian Child Welfare Act, says Mary Jo Hunter, who teaches Native American law at Hamline University in Minnesota and serves on tribal courts in Wisconsin and Nebraska.

MARY JO HUNTER: It's not overruled. It's not ruled unconstitutional.

WANG: Hunter says, in one sense, yesterday's ruling on the Indian Child Welfare Act was narrow. It only disqualified people like Dusten Brown who either gave up or never had custody. But...

HUNTER: For our community, that's a large group of people.

WANG: Given that many Native American children just have one Native American parent, Hunter says situations similar to baby Veronica's are fairly common. She fears that, as a result, yesterday's ruling may ultimately put one of the main goals of the law, to keep American Indian children in American Indian families, at risk.

It's a concern shared by Steven Hager, an attorney with Oklahoma Indian Legal Services.

STEVEN HAGER: You know, any father's rights groups should be feeling a cold chill go down their spine, because basically I don't think father's rights are going to stand very well.

WANG: Hager says the Supreme Court's decision will probably spark more litigation around the Indian Child Welfare Act.

Hansi Lo Wang, NPR News. Transcript provided by NPR, Copyright NPR.