Supreme Court’s upcoming child-custody decision: The Baby Veronica case

On April 16, the U.S. Supreme Court will hear oral arguments in the case of Adoptive Couple v. Baby Girl, more popularly known as the Baby Veronica case.

350px-Supreme_Court_US_2010The controversy stems from a 2011 decision by the South Carolina Supreme Court concerning the parental rights of a 2-year-old child of both Caucasian and Native American descent–dubbed Baby Veronica.

According to the South Carolina court transcripts, in December 2008, Christina Maldonado, a white woman, and Dusten Brown, a member of the Cherokee Nation, became engaged. The following month, Maldonado learned that she was pregnant. Brown, who at the time was serving in the U.S. Army and stationed at Fort Sill, Oklahoma, pressed to move up the wedding date.  Five months later, citing the increased pressure to marry, Maldonado ended their engagement. Shortly after, she began the process of placing the child up for adoption.

In June 2009, Maldonado connected with Matt and Melanie Capobianco, a married couple from South Carolina. The three entered into a relationship for the Capobiancos to adopt the child; Brown was not involved in the process.

Oklahoma law mandates that Indian tribes be notified of adoptions regarding children of Indian heritage.

(Correction. The initial version of this story said that,“Oklahoma law mandates that Indian tribes be notified of adoptions regarding children of Indian heritage; however, because of inconsistencies in the reporting–a misspelling in Brown’s first name and an error in his birth date–the Cherokee Nation was unable to verify his tribal membership.” Counsel representing Ms. Maldonado in the case points out that despite widespread media reports, the Cherokee Nation was properly informed of the adoption proceedings, and both the tribe and the Bureau of Indian Affairs have acknowledged that the tribe was properly notified of the adoption proceedings.)

In September of that year, Maldonado gave birth to a baby girl, with the Capobiancos in the delivery room. The next day, Maldonado gave up her parental rights and consented to the adoption. On the paperwork, she listed the child’s ethnicity as “Caucasian/Native American/Hispanic.” Within two weeks, the Capobiancos moved back to South Carolina with the child.

(Correction: Ms. Maldonado listed the child’s ethnicity as “Caucasian/Native American/Hispanic,” and not just as “Hispanic,” as has been widely reported, and at no point in the process attempted to conceal the biological father’s heritage.)

In January 2010, several days before he was set to deploy to Iraq, Brown received notice of the adoption. Legal papers indicated that he was not contesting the relinquishment of his parental rights and that he had waived the 30-day waiting period for the adoption. The next day, working with a JAG attorney, he contacted the court, requesting a stay of the adoption proceedings. Formal legal action soon followed.

In September 2011, a family court judge in Charleston County, South Carolina, ruled in favor of Brown. The judge held that state law–terminating a father’s parental rights if he does not provide pre-birth support and does not become involved in the child’s life shortly after birth–was preempted by the federal Indian Child Welfare Act (ICWA), which protects the rights of Indian parents in adoption proceedings. The court ordered the Capobiancos to transfer the child back to Brown.

In April 2012, the case reached the South Carolina Supreme Court, where a five-judge bench considered three legal issues: (1) whether the adoptive parents had improperly removed the child from Oklahoma; (2) whether state law or the ICWA was controlling in determining the parental status of the biological father; and (3) whether the adoptive parents met the burden of proof to terminate the parental rights of the biological father.

In a 3-2 split, the court held that the ICWA was controlling on the question of parental status, and that absent proof that Brown had consented to the adoption, the child would be returned to her biological father.

The ICWA, enacted in 1978, offers Native American tribal courts exclusive jurisdiction over adoption cases where the child lives on a reservation, is domiciled on a reservation, or is a ward of the tribe. A partnership between the Child Welfare League of America, the Bureau of Indian Affairs, and the U.S. Children’s Bureau, the law was created as a legislative response to the pervasive practice of removing Indian children from their biological parents.

According to congressional testimony, between 1958 and 1967, under the Indian Adoption Project (IAP), between 25 percent and 35 percent of all Native American children were separated from their parents and entered into the foster care system or put up for adoption. Approximately 90 percent of those children, some 395 in total, were placed with white families. In some instances, the Bureau of Indian Affairs provided compensation to states for the removal of Indian children and their placement with non-Indian families.

At the time, the project was lauded as an example of civil rights progress. In an era where nearly all adoptions adhered to a policy of race-matching, the IAP was said to have challenged the customs and mores of the day and pushed toward a more equitable adoption system.

By the late 1960s, however, Native American activists and allies were actively challenging the project, condemning it as part of the nation’s long history of Indian cultural genocide. As Louis La Rose, member of the Winnebago Tribe of Nebraska, testified before Congress in 1974, “I think the cruelest trick that the white man has ever done to Indian children is to take them into adoption court, erase all of their records and send them off to some nebulous family … residing in a white community and he goes back to the reservation and he has absolutely no idea who his relatives are, and they effectively make him a non-person and I think … they destroy him.”

The 1978 law set up procedural guidelines for the adoption of Indian children by non-Indian parents. Under the ICWA, biological parents, Indian tribes, or Indian custodians maintain an unqualified right to intervene in cases involving the termination of parental rights for a child of Indian heritage. There are no statutory time limits on exercising these rights.

The U.S. Supreme Court first considered the ICWA in 1989, in the case of Mississippi Band of Choctaw Indians v. Holyfield. There, a member of the Choctaw Indian Tribe gave birth to twin children in Harrison County, Mississippi, 200 miles away from the reservation. She and the father, also of the Choctaw Tribe, executed a consent of adoption in Harrison County Court to a non-Indian couple. Two months later, the tribe sought to vacate the adoption under the ICWA, arguing that the tribal court had exclusive jurisdiction. Justice William Brennan, writing for a 6-3 majority, held that the ICWA preempts state law regarding the parental rights of Indian parents, regardless of the location of the birth of the child, if either the child or one or both of the natural parents resides on the reservation.

Since 1989, more than 1,000 decisions concerning Native American adoption have cited Brennan’s opinion. But this April, the Indian Child Welfare Act will come before the nation’s highest court for the first time in 14 years. In Adoptive Couple v. Baby Girl, the Roberts court will consider whether a non-custodial parent can invoke the ICWA to block an adoption, initiated by a non-Indian parent and already voluntarily and lawfully carried out under state law.

Advocates on both sides believe that the Baby Veronica case could play a critical role in setting a precedent for all future cases dealing with the ICWA.

Abigail Perkiss is an assistant professor of history at Kean University in Union, New Jersey, and a fellow at the Kean University Center for History, Politics and Policy.  Follow her on twitter at @Abiperk.

For further reading:

  • Fanschel, David. Far from the Reservation: The Transracial Adoption of American Indian Children. Scarecrow Press, 1972.
  • Wilkinson, Charles F. Blood Struggle: The Rise of Modern Indian Nations. New York: W.W. Norton & Co., 2005.
  • Ellen Herman, “The Adoption History Project,” University of Oregon, http://pages.uoregon.edu/adoption/topics/IAP.html.

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