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Indian welfare law can’t be ‘trump card’ to block adoption, Supreme Court rules

- The Washington Times - Tuesday, June 25, 2013

In a victory for adoptive parents, the U.S. Supreme Court ruled Tuesday that a federal law protecting Native American families cannot not be used as "a trump card" to block the adoption of an Indian child that would otherwise take place under South Carolina state law.

The 5-4 ruling in Adoptive Couple v. Baby Girl disappointed many child-welfare advocates, who argued that the child — who is 1.2 percent Cherokee — must be placed with her biological father, who is an enrolled member of that tribe in Oklahoma.

But the high court ruled that the Indian Child Welfare Act (ICWA) could not be used as an 11th-hour "trump card" to override the child's best interests and desires of her birth mother, who arranged for the adoption after the father said he would rather give up his parental rights than pay child support.

ICWA was not intended to require a child "to be taken, at the age of 27 months, from the only parents she had ever known, and handed over to her biological father, who had attempted to relinquish his parental rights and who had no prior contact with the child," said the ruling, written by Associate Justice Samuel Alito Jr., and joined by Chief Justice John G. Roberts Jr., and Associate Justices Anthony M. Kennedy, Clarence Thomas and Stephen G. Breyer.

The ruling reversed the South Carolina Supreme Court, and sent the case back to the lower courts "for further proceedings not inconsistent with this opinion."

The individuals in the case are not named, but after the ruling, birth mother Christina Maldonado and adoptive parents Matt and Melanie Capobianco said in statements they were pleased with it.

"Today's opinion makes clear that Veronica's adoption should have been finalized long ago, and gives us all the opportunity to continue fighting for Veronica's best interests. I'm also hopeful it will spare many other children and families the heartbreak that Veronica, the Capobiancos and I have had to endure," Ms. Maldonado said, according to WCIV-TV in Charleston, S.C.

"Matt and Melanie are part of my family, and they have treated me like part of theirs. I'm hopeful that we will all be reunited with Veronica very soon," Ms. Maldonado added.

"This has been a living hell for them," said Jessica Munday, a friend and spokeswoman for the Capobiancos, who live on James Island, S.C.

The National Council for Adoption and American Association of Adoption Attorneys were among the supporters of the Capobiancos, as was a court-appointed guardian ad-litem who visited the families and concluded the child was best served by staying with her adoptive parents.

However, organizations for child-welfare workers, child advocates, and Indian tribes who supported the father, Dusten Brown, were dismayed by the ruling.

"Although we are deeply disappointed that this case is not over, Dusten will continue to fight for his daughter and we believe that he will prevail and that Veronica will stay with her family," said the National Indian Child Welfare Association.

"We are confident that his parental rights will be upheld" by the South Carolina courts, said Jefferson Keel, president of the National Congress of American Indians.

ICWA inapplicable

Congress enacted ICWA in 1978 in the wake of illegal seizures and subsequent adoptions of Indian children by social workers and other non-Indians, resulting in family breakups and decimation of tribal populations. ICWA protects Indian families by saying that their parental rights cannot be terminated unless a child is in danger; social services must be given to families to help them stay together; and if an Indian child is to be adopted, preference is given to extended family and tribal members.

In Tuesday's majority ruling, Justice Alito said ICWA's provisions to prevent the breakup of an Indian family do not apply when "the relevant parent" abandoned the Indian child before birth and "never had custody of the child."

Moreover, no one — other than the adoptive couple — stepped up to adopt the child, it said.

Associate Justice Sonia Sotomayor dissented, saying that the majority's "hollow literalism" brought it to a wrong and painful conclusion

"Baby Girl has now resided with her father for 18 months....It will be equally devastating if, at the age of 3 1/2, she is again removed from her home and sent to live halfway across the county," she wrote in a dissent joined by Associate Justices Ruth Bader Ginsburg, Elena Kagan and Antonin Scalia. Justice Scalia also wrote a separate dissent about the importance of parental rights.

Unwed birth

In the fall of 2008, Mr. Brown and Ms. Maldonado, a mother of two who is not an Indian, became engaged in Oklahoma.

When she told him in January 2009 that she was pregnant, Mr. Brown asked to have their wedding soon, since he didn't want to support the baby unless they were married. However, the couple lived several hours away from each other, and over time, the relationship deteriorated. In May 2009, Ms. Maldonado ended the engagement.

"In June, Birth Mother sent Biological Father a text message asking if he would rather pay child support or relinquish his parental rights. Biological Father responded via text message that he relinquished his rights," the majority ruling said.

Ms. Maldonado decided to place the baby for adoption, and had her attorney contact the Cherokee Nation to see if Mr. Brown was enrolled. However, due to incorrect information provided for him, Mr. Brown's membership could not be verified.

Ms. Maldonado then went through a private adoption agency and found the Capobiancos, who supported her emotionally and financially through the pregnancy and were present at the baby's birth in September 2009. They took the baby home with them as they proceeded with the adoption, staying in touch with Ms. Maldonado as she wanted.

Four months after the baby's birth, Ms. Maldonado had papers served to Mr. Brown that said, as the biological father, he would not contest the adoption. He signed the papers, saying later he thought they permitted Ms. Maldonado to have full parental rights while he was overseas serving a military tour of duty.

But shortly thereafter, when he realized the child was being adopted by another family, he filed a stay of the adoption proceedings and focused on establishing his paternity and support for the child.

In 2011, a South Carolina family court ruled in Mr. Brown's favor, blocking the adoption because of ICWA. In December 2011, Mr. Brown took custody of the child, who was 27 months old and had never met him before.

The adoptive parents appealed to the South Carolina Supreme Court, but it also ruled in favor of the father, again citing ICWA. The couple appealed to the U.S. Supreme Court.

The high court noted Tuesday that had the child not been 1.2 percent Cherokee, "Biological Father would have had no right to object to her adoption under South Carolina law."

The majority ruling also chastised South Carolina jurists, saying that under their logic, "a biological Indian father could abandon his child in utero and refuse any support for the birth mother — perhaps contributing to the mother's decision to put the child up for adoption — and then could play his ICWA trump card at the eleventh hour to override the mother's decision and the child's best interest.

"If this were possible, many prospective adoptive parents would surely pause before adopting any child who might possibly quality as an Indian under the ICWA," the ruling said.

The case is Adoptive Couple v. Baby Girl, et al., U.S. Supreme Court, No. 12-399.

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