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Supreme Court decides Indian Child Welfare Act case; fate of 3-year-old girl left in limbo

June 25, 2013 - Andrea Johnson
Today in Oklahoma there is a 3-year-old girl named Veronica whose future is once again in limbo.

The U.S. Supreme Court ruled today that the South Carolina Supreme Court erred 18 months ago when it determined that the girl should be turned over to her biological father, Dusten Brown, under the Indian Child Welfare Act. Veronica was taken away from the adoptive parents who had raised her since birth and given to Brown, who has been raising her ever since.

These are the facts of the case:

Nearly five years ago Brown, who is an enrolled member of the Cherokee nation in Oklahoma, was briefly engaged to Christy Maldonado, a Hispanic American and old high school classmate of his, and Maldonado became pregnant. Brown is predominantly non-Indian by blood but, since each tribe can determine its own membership, he is entitled to Cherokee citizenship as a direct descendant of Cherokees. Therefore, so is his daughter, who is about 3/256th Cherokee by ancestry. In an interview with The Post and Courier in January 2012, Maldonado explained that Brown told her he would not help her out financially during the pregnancy unless they got married and that he stopped contacting her in her final trimester.

According to a friend of the court brief filed by Maldonado's attorney, when Maldonado asked if he would rather pay child support or give up his rights, Brown texted her that he wanted to give up his parental rights. In a brief filed by his attorneys, Brown said that he did not know Maldonado was considering placing the child for adoption and thought he was giving up his rights to his child's mother.

Maldonado, who has two older children to support, placed the baby for adoption with Matt and Melanie Capobianco, a South Carolina couple, after her birth in September 2009. Maldonado said the child had American Indian as well as Hispanic and Caucasian heritage, but her attorney spelled Brown's first name wrong and gave an incorrect month and year of birth when he contacted the Cherokee tribe. Based on that incorrect information, the Cherokee tribe replied that they could not find a record for Brown and Veronica did not appear to be an Indian child under the Indian Child Welfare Act, which protects Indian families.

Brown was served with papers stating that he "was not contesting the adoption" just before he was due to deploy to Iraq. Brown immediately contacted a JAG lawyer and has been fighting the adoption ever since.

A court ordered her returned to Brown on December 31, 2011 after ruling that the Indian Child Welfare Act wasn't correctly followed in this case. The Capobiancos appealed the decision, arguing that Veronica was never part of an Indian family as the child of unmarried parents and that, under South Carolina state law, Brown had no standing to object to the adoption because he failed to support Maldonado during her pregnancy.

On Tuesday, in a 5-4 ruling, the Supreme Court ruled in favor of the Capobiancos and sent the case back to the South Carolina Supreme Court for further proceedings.

The Indian Child Welfare Act, which was passed to protect Indian children from being taken from their families and put in non-Indian foster and adoptive homes, sets a high bar for adoption of Indian kids. Resources and assistance of various types are supposed to be provided to Indian parents to try to to keep the family intact. If that isn't possible and the child must be taken out of the home, first preference for adoptive parents is supposed to be given to extended family, then to other members of the child's tribe, and then to members of other tribes. If none of those options are viable, Indian children are supposed to be placed in non-Indian homes that promote respect for the child's culture. In this case, though, no Indian or non-Indians were seeking custody of the child at the time the girl was adopted by the Capobiancos. The girl's Cherokee grandparents weren't asking for custody.

"It is undisputed that, had Baby Girl not been 3/256 Cherokee, Biological Father would have had no right to object to her adoption under South Carolina law," wrote Justice Samuel Alito in the majority decision.

Alito wrote that the Indian Child Welfare Act does not apply in a case when there was never an intact Indian family and where the father never had legal or physical custody of the child and no efforts to preserve the "Indian family" were required.

"It would, however, be unusual to apply (the South Carolina law) in the context of an Indian parent who abandoned a child prior to birth and who never had custody of the child," wrote Alito. "The South Carolina Supreme Court held that (the law) mandated measures such as 'attempting to stimulate (Biological) Father's desire to be a parent.' But if prospective adoptive parents were required to engage in the bizarre undertaking of "stimulat[ing]" a biological father's "desire to be a parent," it would surely dissuade some of them from seeking to adopt Indian children. And this would, in turn, unnecessarily place vulnerable Indian children at a unique disadvantage in finding a permanent and loving home, even in cases where neither an Indian parent nor the relevant tribe objects to the adoption."

Justices Alito, Kennedy, Thomas and Brier and Chief Justice Roberts joined in the majority; Justices Scalia, Ginsburg, Kagan and Sotomayor voted against it.

So what does all this mean for little Veronica? Apparently the South Carolina Supreme Court will be asked to reconsider the case and deliver a ruling on her future that is not inconsistent with the decision made today by the Supreme Court.

In her dissent, Sotomayor suggests Brown's parents or other members of the tribe might come forward as possible adoptive parents if the South Carolina Supreme Court rules that Brown's rights were legally terminated. She doesn't seem to think the girl would automatically be sent back to the Capobiancos. According to South Carolina state law, the Indian Child Welfare Act would apply to "any" current or future adoption action involving an Indian child, wrote Sotomayor.

In her dissent, Sotomayor wrote: "The majority's hollow literalism distorts the statute and ignores Congress' purpose in order to rectify a perceived wrong that, while heartbreaking at the time, was a correct application of federal law and that in any case cannot be undone. Baby Girl has now resided with her father for 18 months. 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 3 1/2, she is again removed from her home and sent to live halfway across the country. Such a fate is not foreordained, of course. But it can be said with certainty that the anguish this case has caused will only be compounded by today's decision."

The only conclusion I can draw is that it isn't fair for the courts to keep jerking this little girl around. My younger nephew is the same age as Veronica. I can't imagine the damage that would be done to him if he were taken from his parents now. On the other hand, Veronica has already been taken from one set of parents and also lost contact with her birth mother. Would it do as much damage to return her to them?

I just hope the adults in her life will be wise and do what is in her best interest and attempt to spare her any further trauma. The best scenario would be for both the adoptive parents and the biological parents to have regular contact with Veronica so she can grow up with a lot of people loving her. Maybe the adults hate each other too much by this point to successfully share her, though.

Regardless, this case could influence future adoption and custody cases involving Indian children in North Dakota and other states that have a large Indian population. Who do you think should get Veronica? What do you think of this case?


Article Comments



Jun-27-13 11:06 AM

Different tribes have different criteria for membership and it doesn't necessarily depend on what percentage of tribal ancestry they have. In this case, Cherokee membership is apparently based on direct descent from someone who was listed on the tribal rolls when a census was done by the government and the tribe got official recognition. I think some other tribes, including some in the state, require that the members have at least 1/4 Indian blood to qualify. Even if the child is less than 1/4, the Indian Child Welfare Act might still apply if one of the parents is a tribal member.


Jun-26-13 6:15 PM

One of the justices noted in a concurring opinion that this decision ought not to apply to fathers who have visitation rights and are paying child support or to fathers who were never told they were fathers or were denied the opportunity to be involved. Their decision appears to be pretty narrowly tailored to this particular situation. Brown reportedly said he was willing to sign away his parental rights to the mother if he didn't have to pay child support. Later, he apparently changed his mind.

By most accounts, he's been a good father to this child since he's been taking care of her and the girl also has a stepmother now. A year and a half is an eon in the life of a 3-year-old. For her sake, I kind of hope they leave her with her dad. Eighteen months ago, I probably would have been in favor of leaving her with the adoptive parents.


Jun-26-13 2:17 PM

As some of the justices have noted given the circumstances there is no easy decision to be make regarding baby Veronica and her future. Too, the Indian Child Welfare Act was to protect Indian children from undue removal from their parent(s)as it may apply across the nation. So, circumstances that surround each adoptive event should dictate what decision should be made as regards each individual case. Given the circumstrances surrounding this case perhaps the SC made the right decision but it should not necessarily effect the next case in the same way.


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