' [Birth Mother] First Mother Forum: Supreme Court rules against Indian father, limits Indian Child Welfare Act

Tuesday, June 25, 2013

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

Veronica at her father's home

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.

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.

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."

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]."

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
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
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?


  1. Note: "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."

    So what does this statement say for Grandparents such as myself? Shouldn't I then have been allowed placement of my Granddaughter Isabella, whom I helped deliver and also cut her cord, not to mention I took care of her Mother throughout her extremely high risk pregnancy, whereas the Health center she went to did nothing to make sure Isabella was born alive and healthy? I was the one who made sure Mother and child were taken care of and where did it get me or Isabella for the matter? Separated at birth by a greedy corrupt system!

  2. the pieces of paper have to go totally go see how this started by a signature on a piece of paper.......they do it all the timme to a woman who has just birthed the child isplaced with the mother by god and that is where the child stays nocourt no piece of paper is smarter than god because god creates all of us in our mothers wombs and thaat is where chldren remain with their mothers thats whre children want to be not with anyone else.....they come through a woman who becomes their mother..........any instrument which allows a child to be taken from where god placed them will be abolished off of this earth......no one can buy a child we are freely born to our mothers al lof us freely given .......well none of us would be here in any job without our mtohers... no judge sits in a box able to make decisions without being born of a woman himself how dare they eveen suggest a chld should be with anyne but their mtoehrs....we are al born on this earth and we cant do anything withoutour mmother who gaveus our life..........any court who decrees a child should be with anyone but their mothers is CORRUPT AND ROTTEN TO THEE COREE..NO COURTS HAVE A PLACE IN A CHILDS RIGHT TO THEIR OWN MOTHERS............NOW THEY CAN LEAVE THE LANDS WITH THEIER STUPID LAWS AND MONEY AND THEEIR TRAGIC CASES OF PITTING PARENT AGAINST PARENT THE FAMILY COURT IS THE MOST EVIL PPLACE ON THIS EARTH.....NOW THEYCAN ABOLISH THEM ALL LCHILDREN ARE TO REMAIN WHERE GOD PLACES THEM NATURALLY.........AND DONT TELL ME THERE IS NO GOD......CREATION IS AMAZING AND GOD WE RE ALL PART OF GOD AND I CAN GUARNTEE YOU THERE IS ONLYONE WAYONTO THIS EARTH AND THAT IS TRHOUGH OUR MOTHERS...GOD MADE ALL OF US IN OUR MOTHERS WOMBS NONE OF US ARE HERE WITHOUT OOUR MOTHERS.....WOMEN BIRTH NOT MEN WE BIRTH THEM TOO...HOW DARE THEY SIT IN JUDGEMENT OF THEIR OWN MOTHERS.........THEY CAN DARN WELL SHUT UP SHOP AND NEVER TAKE CHILDREN FROM WHERE GOD PLACES THEM OR THEY ARE ANSWERABLE TO GOD THE LOT OF THEMWHEN THEY CROSS OVER.......

  3. Tragic, horrific for this child and her father... and for our nation. This ruling goes hand in hand with the gutting of Voter Rights proections. It not only shows disdain for natural parents, what is shows is favoritism toward White entitlement and disdain for all non-whites!! The Supremes have shown their hand to be as racist as Paula Deen, and far more powerful and scary.

    These two SC decisions, depsite the one win for gay rights, makes me DISGUSTED and embarrassed to call myself an American.

  4. Ugh how disappointing and devastating. Dusten Brown wants nothing more to be a father to his child. He was lied to and mislead and people have the nerve to act like HE is the bad guy? What is wrong with our world. While I agree with the ICWA and it's aim to preserve culture and family, I think it's messed up that his case even had to resort to that in the first place. Adoption laws and parental rights should be strong enough in the first place that the ICWA shouldn't need to be Mr. Brown's saving grace, but alas for his sake I'm glad it was.

    I take peace in this:

    "In other words, the case may not be resolved for years and in the meantime, Veronica may remain with her father."

    I don't see how any custodial court years from now could look at a walking, talking, thinking, non-toddler child and send her back to the "parents" from her years of childhood amnesia. But I've been disgusted and shocked with this case already..... time will tell.

  5. I had the very same thought-Cooper's burning up with baby fever, hell, it was obvious, he redefined the word "biased"

  6. Anderson Cooper's mother Gloria Vanderbilt was the subject of a mega child custody battle with her paternal aunt and grandmother (the Vanderbilts) on one side and her widowed mother on the other side. Guess who won? Money over motherhood!

  7. I am an ADULT ADOPTEE of 62 yrs, and I KNOW what the adoption bureaucracy did to ME emotionally & psychologically as a child, and I PITY this child!

    I think it's A SHAME that this little girl is being used as a RAG DOLL in a SICK bureaucratic game of Adoption TUG o' WAR! SHE is the one that will pay the highest price emotionally & psychologically!

    OK, IF the adoptive parents get to keep her...THEY should be MADE to expose her to the Native American Culture of her heritage, and NOT be allowed to hide it from her! And, by virtue of that...her birth father should be allowed to be a part of her life as she grows up ti INSURE that she GETS the exposure to her heritage!

  8. Very disheartening. I hope the best interests of the child prevail in S.C and Dusten Brown gets to keep his daughter.

    The Anderson Cooper interview with the Capobiancos seemed dumb and biased to me too, but I don't think it fair to impugn his motives by suggesting that he is prejudiced in their favor simply because he is gay.

    In his interview with Wes Hutchins and Jake Strickland:
    he expressed strong support for the parental rights of biological fathers.

  9. Anderson Cooper's position is certainly not simply because he is gay, in fact it might have nothing to do with that at all. AC is a CIA asset. It serves the purpose of a government bent on control to have a population as alienated and isolated as possible. Breaking down family bonds has been a consistent theme in this country's culture now for several decades. Being an adoptee is an alienating experience. It also teaches the adoptee that any bond - no matter how close and personal (mother/child) - can be broken with impunity and for superficial reasons and this behavior has societal support.

    Relationship bonds and a sense of community and brotherhood with our fellows are not rewarded in our culture today for political and social reasons. This is why adoption in USA is so promoted. Strong, cohesive families have been (and continue to be) under attack as they reduce the influence of the state over the masses.

  10. @BettyJ1951 are you an adoptee of Indian descent? regardless, thank you for your strong words on the matter.

    My mother is close in age with you.. born 1954 and she was in foster homes her whole life. Taken from her reserve and put in residential schools as part of a Canadian government incentive to "assimilate" Native culture into white. I know similar atrocities have gone on in the US which is why the ICWA exists. It's too bad it didn't for my mother. She doesn't know the language or culture she was born into. She does not know the names or faces of many of her own siblings. She is trying to reconnect and learn as much as she can, but you can't ignore the hurt around the fact that she has to make an EFFORT to do this as an adult because she was stolen from the culture she should have grown up with.

    As her daughter and someone of Native descent myself, I also struggle with not knowing my own heritage. I study and research but it's not the same as LIVING it naturally. I have a government card granting me Indian health benefits, but I've never lived on a reserve or properly experienced my own birth right for these benefits. I feel like a cheat. I also long to know about my living aunts and uncles...and my grandparents who have passed and I will never meet. It's been increasingly unsettling lately that I don't know who my relatives are or what they look like. I found a second cousin on facebook recently and saw a photo of her grandmother (my aunt) and just cried. She looks like my mother. I feel a lot of pain as a result of my mother being taken away from her culture, but she feels it tenfold. There are many people like us and this is only scratching the surface of the issues around this... there's also the matter of the abusive foster homes, abusive nuns at the catholic assimilation schools and that lasting impact of all that... but that's a different story.

    I remember when the Dr. Phil show covered this story and had a few people trying to argue against the validity of the ICWA and saying it's not relevant to people now like it was 50 years ago. Bullshit. Bull.shit. It absolutely is.

    I said earlier that I'm glad the ICWA was Mr. Brown's saving grace, but that adoption and paternal laws shouldn't be so faulty in the first place to make him resort to the ICWA. I still stand by that. But the issues of both paternal rights AND the ICWA are very compelling in their own right. Put them together and I don't even see why this issue is still in court. It's just because of pride and entitlement. Really disappointing that the American justice system is putting that first.

  11. Everything's reversed. Up is down,left is right ,in is out,through the looking glass. We the people work for the government, not the government for we the people,That's not the way it's supposed to be.What ever happened to "of the people,by the people, for the people?" We are all becoming slaves to a corporate-government-banking system that is watching and recording everything we say and do-and taking our children away if we don't tow the line. This isn't crazy anymore They can't drug us into submission anymore. This is real and we're all waking up-finally. Happy 4th of July everyone!+

  12. "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."

    It also does not make it any less difficult to be adopted for the child. We seem to have a new kind of thinking in this country that the sooner the child is connected with the adoptive parents the more they will become her 'real' and only parents. Not true.

    Also, this supposed 'best interests of the child' argument never seems to take into account the realities of being an adoptee versus being raised in one's bio-family. Veronica, like many other adoptees, may always have a question mark over whether she truly belongs in the adoptive family, and is really considered a full member of the family. She will be subjected to this stigma by others. And it is even likely that there will be adoptive family members who won't fully accept her as family. I can't imagine why anyone would want to subject a child to this when she has a loving, natural father who wants to raise her.

    I have to agree with BettyJ1951 that "SHE is the one that will pay the highest price emotionally & psychologically!"

    This has been sent back to the state and previously the South Carolina Supreme Court ruled in favor of the natural father. Let's hope that they do so again.

  13. The First Mother in this case chose not to raise her baby. The First Father in this case chose not to even say he was the First Father until he decided he didn't like who the adoptive parents would be.
    Should we now stop "saving" unwed mothers from their children and instead start "saving" them from their decisions to have their children raised by someone else?
    I guess the posters here don't think this particular First Mother had the right to make any decisions for the child she had been abandoned to raise alone.
    I guess the posters here don't think the First Father maintains infinite and permanent rights, even after refusing to be the First Father for the first four months.

  14. Shame on the adoptive parents for continuing to fight. Once the baby left their home, they should have let it go. To make this child move yet again would be devasting and incredibly damaging to her.

  15. Anonymous: I would hope you would go back and read more about the facts of the case. The lawyer for the Capobianos was sleazy all the way around; Dusten Brown thought the natural mother of his child was raising her, which he did not object to. What he did object to--and did as soon as he realized the papers pushed on him in a parking lot were--consented to the adoption.

    Where is the decency of the adopters, the Capobiancos? They lack basic human decency. If they had a smidgeon of it, they would stop this insane demand that a little girl who has a father who wants her be returned to them. There is a special place in hell for people like them.

    This is a child we are talking about, not a ping pong ball; natural parents have the right to raise their own children, unless they are proven to be unfit, which clearly does not apply here. Only in a cockeyed world would adopters--cruel and immoral--go to such lengths to take a child away from her natural parents.

  16. Mothers who want to prevent the father from raising their children don't want to be involved with the child at all. That's easier to do if she is adopted by strangers. In this case, the first mother is to blame. Not all mothers are good people.

  17. I think the world might be ending - I am actually agreeing with Antonin Scalia on something.

    But seriously, his paragraph you included here is spot on. This father wants to raise his daughter, and he should be able to do so, period.

  18. Casey Family Programs, Child Welfare League of America and Children’s Defense Fund expressed disappointment regarding today’s U.S. Supreme Court decision affecting the Indian Child Welfare Act (ICWA) as the guiding law when determining the well-being of an Indian child in a custody dispute.

    David Sanders, Casey Family Programs’ executive vice president, said the ruling threatened to undermine principles that represent the gold standard in child welfare.

    Child welfare organizations expressed relief that the Supreme Court’s decision did not strike down ICWA in its entirety. However, they view the decision as a step backward for children and families.

  19. It should be noted that Scalia has 9 biological children...Roberts has 2 children adopted from Ireland under suspicious circumstances...I have tried to read all I can about this adoption (from Ireland through Latin America) but can only find bits and pieces.

    This is about money and ownership. The Copabiancos can't see past what they want, what they believe their money can give to see how important this biological connection between this dad and his daughter is.

    I am 47 years old and have only begun to see how my adoption has really affected me the past couple of years. I am sensitive to this as I met my father last year and feel such a connection to him and him to me. He is my father. I know that all stories don't have this kind of ending ours does but I am blessed. My dad didn't get to know about me and is much like Dusten. I would guess he would not have been in a position to parent and raise me then, but he would have had the chance to make that decision for himself.

    I really used to believe that fathers love their children because of a connection to the mother. This can be the case I would guess but not in mine. My dad loves me for me. He does not view me as a possession.

    I am praying for some kind of clarity for the court...I don't know what is next, but I am confident that this child needs her people.

  20. Dear Anon, thank you for leaving your thoughts here, and we're glad you and your father connected so well.

    Although this case hangs on a thread, and that thread can be criticized, what is important is what you understand: that a child needs his or her own people, whenever possible.

    As far I understand about Roberts: Since adopting Irish born children out of the country to be adopted, he flew the Irish mothers (didn't want tainted American blood, it appears) to a Latin American country so the children could be born there and legally adopted. So while he didn't break the law, he unethically skirted it as much as possible. Since one's connection to adoption influences how one thinks about this so massively, he should have recused himself from offering an opinion on this decision.

    Since this court is dominated now by conservatives, after two terms of George Bush, I think we can thank Ralph Nadar for this decision, since without him, Gore would have been president and his apointees would not think like John Roberts and Samuel Alito.

    1. I knew that no-longer-little Josie 'n Jack Roberts were adopted, but that backstory is atrocious. What will Mums and Chief Justice Adopter say when the wee bairns ask why they were born in Paraguay (or wherever)?

      The Robertses can't even use the stale "saved from abortion" line, as that procedure still isn't legal in Ireland.

      Tut. Tut. Tut.

  21. From Wikipedia:

    While investigating Roberts' life, the New York Times was accused of attempting to unseal records detailing the 2000 adoption by Roberts and his wife of two infants born in Ireland[6] via a Latin American country.[7] The Times denied any attempts to unseal legal records and stated that "[o]ur reporters made initial inquiries about the adoptions" and "[t]hey did so with great care, understanding the sensitivity of the issue."

    The Times was condemned by the National Council for Adoption, "NCFA denounces, in the strongest possible terms, the shocking decision of the New York Times to investigate the adoption records of Justice John Roberts' two young children. The adoption community is outraged that, for obviously political reasons, the Times has targeted the very private circumstances, motivations, and processes by which the Roberts became parents."[8]

    The reasons for the adoption happening in the unnamed Latin American country remain unclear, though it was noted that the Irish 1991 Adoption Act only allows adoption of children born in Ireland by people resident in Ireland.

  22. I've been consumed by personal family issues of late and am only just learning that this case went all the way to the US Supreme Court. What a nightmare! I cannot believe the child is at risk of being removed from her father now--this is all so crazy.



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