The Supreme Court issued opinions about more than just gay marriage in June. Adoptive Couple v. Baby Girl is one case that a lot of the adoption community had been watching.
If you read the comments about the case and the myriad of article it has spawned, it’s clear that most people have a preset version of what really happened in their heads, yet none of them actually know what happened. The case is pretty complicated, and there’s a lot of he said/she said. What seems to have happened is this:
Christy Maldonado was pregnant. She said that the baby’s biological father, Dusten Brown, would only support her and the baby if she married him. Their relationship was, in her words, “on the rocks” so she broke it off. Maldonado sent Brown a text message asking if he wanted to pay child support or waive his rights. He replied that he’d waive his rights rather than pay child support. According to Maldonado, Brown never tried to contact her after that text message. According to Brown, he kept calling and trying to see her, but she refused to talk to or see him. The fact is, Brown did not support Maldonado when she was pregnant, nor did he provide for the baby after she was born.
Maldonado decided to place the baby for adoption with Matt and Melanie Capobianco, residents of South Carolina. Six days before he was to be deployed to Iraq, when the baby (named Veronica) was 4-months old, Brown was asked to sign the termination of parental rights, which he did. This part is very important: Brown signed the termination of parental rights (TPR). Brown says that he thought he was signing away his rights to give them to Maldonado, that he didn’t know he was consenting to an adoption. (When people who take Brown’s side comment, they seem to think that Brown never signed TPR. He did.)
Brown contested the adoption, using the Indian Child Welfare Act (ICWA) as his defense. Brown is a member of the Cherokee Nation. (He’s 2% Cherokee. Veronica is 1.2% Cherokee.) Maldonado is not. (She’s Hispanic.) ICWA was created to keep Native American families together. That’s a long story in itself. According to South Carolina law, Brown did not meet the criteria to be a “legal father.” He didn’t support the baby’s mother and he signed TPR. If he were of any other race, the case would have been closed. Brown would not have been able to contest the adoption. But, because of ICWA, he could argue that the baby had to be placed with him, as a part of the Cherokee Nation.
Brown’s lawyers allege that the adoptive couple, and perhaps the birth mother, purposefully tried to side step ICWA and hide the adoption from Brown.
The South Carolina Supreme Court ruled that, even though Brown was not a legal father under SC law, due to his Native American heritage, and the fact that he was a father under ICWA, Brown should have custody of Veronica. Veronica was 27-months old. She had lived with the Capobiancos all that time. (Part of the delay was due to the fact that Brown spent 1 year in Iraq as a member of the US Army.)
The Capobiancos appealed, and the Supreme Court took the case. Ultimately, the Supreme Court ruled that ICWA did not apply.
Justice Samuel A. Alito Jr. wrote for the court’s majority that the Indian Child Welfare Act “does not apply where the Indian parent never had custody of the Indian child.”
Instead, Justice Alito wrote, the federal law “was designed primarily to counteract the unwarranted removal of Indian children from Indian families,” not as part of a custody dispute in which “an Indian child’s adoption is voluntarily and lawfully initiated by a non-Indian parent with sole custodial rights.”
The opinion reads:
Contrary to the State Supreme Court’s ruling, we hold that 25 U. S. C. §1912(f )—which bars involuntary termi- nation of a parent’s rights in the absence of a heightened showing that serious harm to the Indian child is likely to result from the parent’s “continued custody” of the child— does not apply when, as here, the relevant parent never had custody of the child. We further hold that §1912(d)— which conditions involuntary termination of parental rights with respect to an Indian child on a showing that remedial efforts have been made to prevent the “breakup of the Indian family”—is inapplicable when, as here, the parent abandoned the Indian child before birth and never had custody of the child. Finally, we clarify that §1915(a), which provides placement preferences for the adoption of Indian children, does not bar a non-Indian family like Adoptive Couple from adopting an Indian child when no other eligible candidates have sought to adopt the child. We accordingly reverse the South Carolina Supreme Court’s judgment and remand for further proceedings.
The Supreme Court sent the case back to the South Carolina Supreme Court to reconsider their decision. The South Carolina Supreme Court ruled in favor of the Capobiancos. Veronica has spent 18 months with her biological father. She is now to be returned to her adoptive parents, the Capobiancos. (People like to comment that the Capobiancos are not her adoptive parents, as they never finalized the adoption. At best, that’s semantics. While we were waiting for our children’s adoptions to be finalized, we were their adoptive parents.)
When I first heard about this case, back in December 2012, I thought that the ICWA shouldn’t have applied for the same reason that the Supreme Court gave: Brown had, essentially, abandoned his daughter. He had never had custody and he voluntarily signed TPR. He says he didn’t know what he was signing. I have the TPR that Jackson’s birthmother signed. It’s a very straightforward document. Maybe it’s more complicated in South Carolina than in Missouri (where Jackson was born), but if Brown had actually read the document, it’s likely that he would have realized what he was signing. He was only allowed to “take it back” because he’s Native American.
However, now that Veronica has been in her biological father’s home for 18 months, transferring her back to her adoptive parents – which is the right thing to do legally – is bound to be very difficult for Veronica.
The reaction from the adoption community has been mixed. A lot of people who aren’t adoptive parents have accused adoptive parents of rejoicing over the decision. Certainly, a few that I’ve seen have. However, more of “us” have seen the case and its rulings for what they are – a huge mess, that, no matter what, was going to hurt the child in question.
The reaction from some in the adoption community has been very similar to this, published by Light of Day Stories:
“I wonder how the Capobiancos, the adoptive parents, will look that child in the eye when she’s older, and say, ‘We fought hard to take you from your father, who wanted to keep you.'”
Oh for God’s sake!
First, to these people, I direct you to Christy Maldonado’s piece about her side of the story. When Brown took custody of Veronica, he apparently did not allow Maldonado or the Capobiancos any contact. The Capobiancos had had an open adoption with Maldonado. In an article written just after the initial transfer of custody, she said:
“I’m unable to contact her. They didn’t just take her from them. They took her from my family as well.”
So basically, Brown got custody and then cut off contact with her birthmother and two (half) siblings, as well as the only parents she had ever known. That’s got to be real healthy for the kid. If she had stayed with Brown, what’s the likelihood that he would have let her have contact with her biological mother’s side of the family?
Second, these people assume that the Capobiancos are going to take Veronica and hide her away. They had an open adoption with Maldonado, and said in a Radiolab piece that they were looking forward to continuing that. I thought that I had read an article in which they stated they would have an open adoption with both biological parents, but I can’t find that now. It does stand to reason that, if they have an open adoption with the biological mother, they’ll try to have one with the biological father.
Third, you realize that one could just as easily say to Dusten Brown, “I wonder how he’s going to look her in the eyes and say, ‘I fought to take you away from two parents who loved you, wanted you, and supported you for over 2 years while I did not. I didn’t really mean it when I said I’d rather waive my rights than pay child support.'”
Fourth, it’s presumptuous to assume that Veronica is going to hate the Capobiancos – which is what is clearly implied here.
Fifth, the Capobiancos are not the bad guys here. Brown isn’t either. There are no bad guys, and no good guys. I don’t think the adoptive parents were wrong to fight, especially in light of Brown shutting out Maldonado. I suppose you could argue that Maldonado shut him out of the adoption, but, a) that’s not necessarily true, and b) that’s hardly in the best interest of the child, is it?
No one really wins here. The entire case is a huge mess. I hope that Veronica is able to have healthy relationships with all of the parents who love her so much.