' [Birth Mother] First Mother Forum: Justice Scalia: He upheld the rights of natural parents

Wednesday, February 17, 2016

Justice Scalia: He upheld the rights of natural parents

Veronica Brown at her father's home, 2013
While the country is reeling politically from the death of Justice Antonin Scalia, I am reminded that in 2013 he upheld the right of natural parents to raise their own children in a much contested case, Adoptive Couple V. Baby Girl. 

The majority decision took the child, Veronica, from the home of her father, Dusten Brown, and returned her to adoptive parents, Matt and Melanie Capobianco, who initially had custody of the girl after a sketchy adoption arranged by the girl's natural mother, Christina Maldonado.  

Veronica was nearly four at the time she was returned to the Capobiancos, and had been living with Brown and his new wife for 18 months, and from all evidence, was thriving. The Capobianco's had the girl for the first two years of her life, but the South Carolina Supreme Court, relying on the Indian Child Welfare Law of 1978, and the dubious way the adoption process had been carried out--designed to trick the father out of his parental rights--reversed the process
and sent her to live with her father. Dusten Brown is part Cherokee, and thus, so is Veronica. 

Conservative Justice Scalia joined with liberal Justices Kagan, Ginsburg and Sonya Sotomayor, author of the dissenting opinion. He added a noteworthy addendum to the dissent: 
"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." 
 Touching upon the time that had passed, Justice Sotomayor wrote in the main 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."
It was a sad day for us, for the rights of natural parents, particularly fathers who wish to raise their children over the objections of the mother, for the rights of children to be raised by their natural, biological parents. 

The case hinged on the Indian Child Welfare Act of 1978. The decision, written by Justice Samuel Alito, ignored its tenet that tribes have a right to keep their children. Let us remind readers that that Chief Justice John Roberts, who, as I understand it, adopted his own children of Irish mothers flown to in South American countries to give birth there, as it is against Irish law to let Irish children be adopted out of country. When The New York Times began looking into this adoption and its skirting of the law, there was a hue and cry about privacy of the children from the Roberts camp, and the investigation was squelched; and that fact itself was later scrubbed from his Wikipedia page. Not surprisingly, he sided with the majority and refrained from writing the opinion. To do so would have looked egregiously as self-serving as the decision was. 

Though we disagreed with Justice Scalia's conservative opinions on anything else we are aware of, we remember this decision for cutting so clearly through the pro-adoption malarkey of America. He eloquently and clearly defended the right of parents to raise their own children. Adoption reform is neither a conservative or liberal issue; it is a human issue.--lorraine
We wrote about this case (Adoptive Couple v. Baby Girl) in detail at the time it was coming down, and the links below will take you there. 

Jane here:  Justice Scalia was also on the right side in Troxel v. Granville upholding a lower court decision that a mother had the right to decide on her children's visitation with their grandparents. His statement is one of my favorite adoption quotes: "The right of parents to direct the upbringing of their children is among the 'unalienable rights' with which the Declaration of Independence proclaims all men...are endowed by their creator."  It is on our Favorite Adoption Quotes page.

Supreme Court rules against Indian father, limits Indian Child Welfare Act
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?
Natural parents have a natural right to nurture their children.

Hole In My Heart: memoir and report from the fault lines of adoption
"This was one of the first books I read as a newly discovered Late Discovery Adoptee and Lorraine Dusky's fearless candor gave me invaluable insight. In turns heartbreaking and joyful, the book hardened my resolve to connect with my birth mother. It is not only a beautifully written memoir but is also a strident call to action, laying bare the gross injustices practiced on the victims of the Baby Scoop Era that continue to echo and ripple through the individuals involved and society at large in both attitudes and legislation. Thank you so much for this book. Highly recommended."--Alyssa S. at Amazon



  1. Lorraine, thanks so much for writing this acknowledgement of one of Scalia's positive contributions to the human existence (not conservative or liberal, as you so aptly put it). What was very sad in the Baby Veronica case was the decision did not hinge on the best interests of the child at all. In Veronica's case, there wasn't even a question of whether she would be "better off" with the Capobiancos - she was pried away from her natural family due to a legal technicality that could have been circumvented.

    Scalia was a brilliant legal mind, regardless of whether we agree with his stance on many things. With his death, I am glad to be reminded of his position in the Baby Veronica case.

  2. "reversed the adoption process and sent her to live with her father."

    It is vitally important to stress that the Capobiancos were in the PROCESS of adopting Veronica when she was returned to her father by the South Carolina courts.

    The media regularly referred to the Capos as Veronica's adoptive parents at a time when they most certainly were not. This had the unfortunate effect of encouraging public opinion to side with them since it seemed as if Dusten was removing "their" child from 'the only home she's ever known'. It is important to point out that they were not able to legally adopt her until after she was forcibly removed from her father and stepmother's loving and stable home when she was 4 years old.

    As a father of 9, it seems Justice Scalia understood the significance of blood family. If only Justice Sotomayer had oversight in South Carolina rather than Chief Justice Roberts.

    1. Yes, thank you for pointing that out.

      Ronnie was ordered to move back in with the Capos, who had JUST been approved to adopt her (the ink was still wet), despite that she was settled in with her family and hadn't seen or lived with her former PAPs for more than a year.

      Ronnie was almost 4 years old, lived with her father and family for 1.5 years, but she had been adopted for just about 2 weeks when she was ordered to be removed from her father.

      Yes, although I didn't follow Scalia's judicial leanings, I will remember him fondly for not joining in with the others, but rather eloquently, defending Ronnie's rights and well-being. Be well, Little Star!

  3. Here is a post I put up on another site discussing this very topic:

    I'll show Scalia some respect on the day of his death by acknowledging the one major vote that he got right.

    He voted to keep Veronica Brown with her father and not to gut the Indian Child Welfare Act. Unfortunately, Stephen Breyer bolted on that one and so poor Veronica was still taken away by the Capobiancos, her needy prospective adopters. The South Carolina Supreme Court made it official in a 3-2 vote, based on blatant lies.

    Children have a right to stay with their biological families. The Capobiancos, and their lawyer, schemed and manipulated from the beginning to make it look like Dusten Brown was an abandoner who took no interest in his daughter. They did this precisely because they knew just how much he would be against her adoption. They are evil and I feel sorry for that little girl growing up with her de facto kidnappers.

    The Indian Child Welfare Act was created to prevent exactly this type of situation. Its principles should be expanded to the whole country, not gutted for Native American children. Sonia Sotomayer correctly labeled the shameful ruling "a strained reading of the text."

    Justice Sotomayer is IMO the best Supreme Court appointment of the last 60 years, since William Brennan was placed on the Court. I hope President Obama will select a Justice to replace Scalia who is cut from the same mold as her.

    1. Great comment, and thanks for expressing my hopes and thoughts much better than I. I agree with all that you wrote.



COMMENTS ARE MODERATED. Our blog, our decision whether to publish.

We cannot edit or change the comment in any way. Entire comment published is in full as written. If you wish to change a comment afterward, you must rewrite the entire comment.

We DO NOT post comments that consist of nothing more than a link and the admonition to go there.