Supreme Court rules against Indian father, limits Indian Child Welfare Act

Veronica at her father's home

 UPDATED BELOW

Showing a clear disdain for the rights of biological parents--and a preference for the legal rights of adoptive parents--the Supreme Court today voted 5-4 in favor of granting custody of a three-year-old girl with Native American blood to the non-Indian couple who had adopted her, Matt and Melanie Capobianco of South Carolina. Now the case will head back to South Carolina family courts, which will determine where she will live and who will raise her. The girl, named Veronica, has been living with her biological father, Dusten Brown, in Nowata, Oklahoma, since December of 2011, but spent the first 27 months of her life with the Capobiancos.

The decision in Adoptive Couple v. Baby Girl* is both bad policy and bad law. The Court, in overturning a decision of the South Carolina Supreme Court, held that the Indian Child Welfare Act (ICWA) did not prevent Matt and Melanie Capobianco from adopting Dusten Brown's daughter Veronica, because--although
he was a tribal member--he had never had custody of his daughter, and thus the ICWA did not apply to him. Justice Samuel Alito wrote the opinion, and was joined by adoptive father Chief Justice John Roberts, associate justices Anthony Kennedy, Clarence Thomas, and Stephen Beyer. The ever off-base Justice Thomas even went farther declaring the entire ICWA was unconstitutional because, he claimed, Congress never had authority to enact it in the first place. Child custody and adoption were matters solely of state laws. Justice Antonin Scalia, who has sided with the rights of natural parents in the past, joined with the liberal justices in the dissenting opinion.

Jane

'POTENTIALLY DEVASTATING TO TRIBAL AUTHORITY'
The case is considered one of the most important Indian legal battles of the last generation, and the implications it may have on the 1978 Indian Child Welfare Act are potentially devastating to tribal authority, according to Chrissi Nimmo, the counsel of record for the Cherokee Nation. In April she told the Indian Country Today Media Network that striking down the biological father's rights in this case “would undo [over] 35 years of work on the Indian Child Welfare Act. Any adverse decision would impact every tribe in the country.”

Justice Sonia Sotomayer wrote in dissenting opinion that the justices cherry-picked from the ICWA to reach its result, substituting "its own policy views for Congress." In addition to Scalia, she was joined by Justices Ruth Bader Gingsberg, and Elena Kagan. Alito employed a "textually strained and illogical reading of the statute," she wrote.

The fact of the case are simple. Brown and Veronica's mother, Christina Maldonado, were living in Oklahoma and were engaged. When Brown, who was in the Army at the time, learned Maldonado was pregnant, he wanted to move up the date of their marriage; instead, she broke off the engagement. He did not provide financial support during the pregnancy after she ended their engagement. Without informing Brown, she had agreed to pre-adoptive placement with the Capobiancos. Believing Maldonado, who is not Native American, planned to raise their daughter, he relinquished his parental rights in a text message.

Lorraine

After the girl was born in September of 2009, the Capobianco's took her to their home in South Carolina, and commenced adoption proceedings. When the girl was four months old, the Capobianco's attorney presented Brown with a consent form in a parking lot, just days before he was to be deployed to Iraq. He signed it. However, the very next day, he contacted a lawyer to seek custody of his daughter, later claiming the lawyer who presented the paper to him did not make it clear what the document was. The South Carolina trial court found his rights under the ICWA were violated, denied the Capobianco's adoption petition and awarded custody to Brown. On December 31, 2011, Veronica went to live with Brown. When the South Carolina Supreme Court affirmed the trial court's decision, the Capobianco's took their fight to the Supreme Court.

In his opinion for the majority, Justice Alito employed the all-too-familiar pro-language used when denying natural parents their rights: The South Carolina Supreme Court held certain provisions of the federal Indian Child Welfare Act of 1978 required her to be "taken, at age 27 months, from the only parents she had ever known and handled over to her biological father...who had no prior contact with the child."

COMPOUNDING THE ANGUISH FOR VERONICA
The majority glided over the fact that Brown attempted to gain custody when Veronica was four months old; the delay in his being granted it until she was 27 months old was the doing of the would-be adopters, the Capobiancos. The Court did think it important to note that they were at the birth, and Matt Capobianco cut the cord, a practice we find reprehensible as it creates an atmosphere of consent to the adoption when the mother is in the throes of having just given birth.

Veronica went to live with her father in December, 2011. As Justice Sotomayer pointed out in her dissent: "Baby Girl has now lived with he father for 18 months. However difficult it must have been for her to leave Adoptive Couple's home when she was just over two years old, it will 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 court's pro-adoption bias is also apparent in its concluding paragraph, where it raised the familiar specter that if the father prevailed, "many prospective adoptive parents would surely pause before adopting any child which might possibly qualify as an Indian under the ICWA." As Justice Sotomayor noted in her dissent, that is the central purpose of the ICWA: "'to promote the stability and security of Indian...families...in part, by countering the trend of placing 'an alarmingly high percentage of [Indian] children...in non-Indian foster and adoptive homes and institutions.'"

The Court sent the case back to the South Carolina Supreme Court to figure out what to do next. While the Supreme Court held that Brown had no rights under the ICWA, it did not extinguish the rights of other family members under the Act, who could sue for the right to adopt her. Justice Sotomeyer noted: "that the majority does not and cannot not foreclose the possibility that...Baby Girl's paternal grandparents or other members of the Cherokee Nation may formally petition for adoption of Baby Girl. If these parties do so...they will then be entitled to consideration under the [Act]."

SCALIA: DECISION DEMEANS THE RIGHTS OF PARENTHOOD
The South Carolina Supreme Court will send the case back to the trial court which will make a decision on whether to allow the Capobianco's to adopt Veronica. The trial court's decision may be appealed to the South Carolina Supreme Court and possibly to the US Supreme Court. In other words, the case may not be resolved for years and in the meantime, Veronica may remain with her father.

Although Justice Scalia and we at FMF do not see eye to eye on many things, we wish to cheer his addendum to Justice Sotomayor's opinion. He eloquently and clearly defends the right of parents to raise their own children:

"While I am at it, I will add one thought. The Court's opinion, it seems to me, needlessly demeans the rights of parenthood. It has been the constant practice of the common law to respect the entitlement of those who bring a child into the world to raise that child. We do not inquire whether leaving a child with his parents is 'in the best interest of the child.' It sometimes is not; he would be better of raised by someone else. But parents have their rights, no less than children do. This father wants to raise his daughter, and the statute amply protects his right to so do. There is no reason in law or policy to dilute that protection." --jane and lorraine

UPDATE as the news cycle turns
Am I the only person who saw Anderson Cooper late last night fawning over the would-be adopters?  He made me crazy. The Capoabiancos  went on and on at how awful it was to "lose" "their" child, and he bought into it, saying, Wow, I can't imagine what they would be like to lose "your child," how awful, etc. The "birth father" was made out to be a scum who stole "their" child. I couldn't believe it!  Cooper is the son of Gloria Vanderbuilt and Wyatt Cooper and never had any doubts about his paternity. I couldn't help thinking as I saw him go gaga over the non-biological parents--as if they were the real parents!--that maybe this had something to do with his thinking that he might adopt someday, as Cooper is gay. I hate that this might even enter into the discussion--his sexual leanings--but two guys can't have a child without a woman somewhere involved, whether they buy eggs, or a baby.

The other morning on CBS, however, their legal analyst, Rickie Klieman, gave a very balanced interpretation of the upcoming decision, saying that the child should be treated like a "ping-pong" ball, indicating that at least she thought that the child ought to remain where she is. Perhaps if the wheels of justice grind as slowly as they often do, the courts will find that it is in her best interests to stay with her daddy.

As for Scalia, our hats off to you for cutting through the pro-adoption malarkey of America, and the majority of the Supreme Court, including John Roberts, who, as I understand it, whisked the mothers of his adopted children out of Ireland so they could be adopted, as it is against Irish law to let children be adopted out of country. It is my understanding they were born to Irish mothers in South America. Nice, huh? There's always a way to get around those pesky adoption laws of another country if you are wealthy enough.--lorraine
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SOURCES
Adoptive Couple v. Baby Girl
*The Court does not name the parties, referring to Dusten Brown as "the biological father," his daughter as "Baby Girl," and the would be adoptive parents Matt and Melanie Capobianco as "adoptive Couple."
Supreme Court Rules 5-4 In Favor of Capobiancos in Baby Veronica Case
Supreme Court: Baby Girl Not Required To Go To Indian Biological Father Dusten Brown
FROM FMF:
A father's right to raise his own daughter hinges on 'Indian' act
Returning a child to her father is the right decision
Can the media get adoption right?