July 3, 2013
In a 5-4 ruling recently handed down by the U.S. Supreme Court, drafted by Justice Samuel Alito in the case known as Adoptive Couple v. Baby Girl, the court sided with the baby’s white adoptive parents, the Capobiancos, who decided to adopt the child before she was born. The court ruled that two provisions of the ICWA law were not applicable to the case and could not be used to protect the parental rights of the biological father Dusten Brown. The court disqualified the biological father based upon the fact that he gave up or never had custody and not because he was a Native American parent and because no other Cherokee relatives or other Indiana families came forward asking for custody. The ICWA law was passed in 1978, with the intent of keeping Indian children in Indian families.
According to court documents, the biological mother, Christy Maldonado, who is primarily Latino, refused to marry Brown when she became pregnant and decided to put the child up for adoption after Brown texted her that he was giving up his parental rights and would not support the child. After discovering that the child had been put up for adoption, Brown went to court to gain custody. The Supreme Court decision reverses the 2011 the South Carolina lower court decision that ruled that under the ICWA, the Capobiancos, had to turn the child, who had resided with the Capobiancos for the first two years of her life, over to her biological father.
The case will be returned to South Carolina for further proceedings to decide the custody of the child and allows for the adoptive parents to ask that the child be returned to them. However, the Capobiancos have not completed the adoption process, further complicating the case that will now have to be reconsidered in the South Carolina courts. Baby Veronica, age 3 ½, currently resides with her biological father, Mr. Brown, in Oklahoma, who has kept his daughter apart from the birth mother and the Capobiancos, in order for her to adapt to her new home with him. The biological mother says that while she was able to spend time with the child at the adoptive parent’s home and listen to her on the telephone, she does not currently know where the child lives.
Indian legal groups and advocates for ICWA argue that the court’s decision is flawed because it misses the intent behind ICWA, to protect the cultural heritage and resources of Indian children. However, Justice Sotomayor’s dissent states that classifications based upon tribal citizenship are permissible under the Constitution giving hope to other Indian biological parents, relatives or Indian families who may want to use the ICWA in custody cases.