High court to tackle Native American adoption dispute
Sat January 5, 2013
STORY HIGHLIGHTS
- NEW: S.C. couple says it is happy that the high court will hear their appeal
- Cherokee Indian man won custody of his biological daughter
- S.C. couple's appeal will be heard by high court
- A federal law meant to protect Indian family breakup is key to the case
The justices announced
they will hear an appeal from Matt and Melanie Capobianco, who legally
adopted little Veronica in 2009, shortly after the birth mother agreed
to give up the child. Oral arguments in the case will likely be heard in
April with a ruling by late June.
The South Carolina
Supreme Court in July ruled for the biological father, who had sought
custody shortly after the child's birth. He is a registered member of
the Cherokee Nation and is raising the child in Oklahoma.
Dusten Brown had earlier
signed a legal document agreeing to put the girl up for adoption, but
his attorneys say the father did not understand the extent of the
waiver, and that the birth mother misrepresented the child's American
Indian heritage to social service workers when the adoption was
finalized.
At issue is whether
Brown, as the onetime non-custodial father, can gain parental custody,
after the non-Indian mother initiated an adoption outside the tribe.
A special congressional
law governs such interstate adoptions, since the current 556 federally
recognized tribes all fall under Interior Department oversight, giving
those tribes certain unique benefits and rights.
Lawyers for the Capobiancos say federal law does not define an unwed biological father as a "parent."
The adoptive couple was excited that the high court will hear their case.
"We weren't sure what to
expect," Melanie Capobianco told CNN's Randi Kaye. "It was a low chance
and we just feel really extremely happy that they decided to hear it."
Her husband, Matt, added, "It restored some hope and a little faith in the judicial system."
The federal law in
question is the Indian Child Welfare Act (ICWA) of 1978, a response to
decades of often abusive social service practices that resulted in the
separation of large numbers of native youngsters from their families, in
many cases to non-Indian homes.
The legislation was
designed to "promote the stability and security of Indian tribes and
Indian families by the establishment of minimum federal standards to
prevent the arbitrary removal of Indian children from their families and
tribes and to ensure that measures which prevent the breakup of Indian
families are followed in child custody proceedings."
Brown's relationship
within the "federally recognized government" of the Cherokee Nation
means Veronica -- named in court papers as "Baby Girl" -- is a member of
the tribe and subject to their jurisdiction.
"It's not anyone's
intent ever to rip a child away from a loving home," said Todd Hembree,
the Tahlequah, Oklahoma-based tribe's attorney general. "But we want to
make sure those loving homes have the opportunity to be Indian homes
first."
Still, the Capobiancos argue that the little girl's real home is with them.
"Veronica was always a
part of our home from birth and we just felt like she was in a happy
place and that those kinds of needs could have been met through us,"
Melanie Capobianco said. "I just don't think that was what Congress was
thinking about when that act was passed."
As with many custody
fights, there is wide factual disagreement over the circumstances of
both the couple's breakup and subsequent adoption of the child. Opposing
sides even disagree on what legal issues the high court should address.
The Capobiancos think
the issue should be about whether the ICWA law can improperly block
adoption proceedings voluntarily initiated by a non-Indian mother who
had sole custody of her child, due to what the adoptive parents say is
the Indian father's failure to establish a legal parent-child
relationship under state law.
But Brown argues he
successfully established paternity under state law, and qualifies as a
"parent" under the ICWA, thereby giving him proper control and custody
of his daughter.
He said in legal papers
that the child was conceived when the couple was engaged, and "excited"
he would be a father. But Brown claims the biological mother broke off
the now-strained relationship by text message. He agreed to relinquish
his parental rights in exchange for not paying child support, but said
the mother never indicated she intended unilaterally to give the child
up for adoption.
And Brown claims the
biological mother tried to "conceal" his Indian heritage during the
adoption process with the Capobiancos, who live in Charleston, South
Carolina.
Establishing such
heritage would normally make it very difficult for the Cherokee Nation
and state social services to agree to any non-Indian adoption and
removal from the state.
By this time, Brown was
deployed to Iraq on a one-year deployment in the U.S. Army, making it
hard to press his custody claims. Veronica lived with the Capobiancos
for two years before the high court in South Carolina ruled for the
father. Brown took his daughter back to Bartlesville, Oklahoma, on New
Year's Eve 2011.
The state's top court
that ruled in his favor said Brown had "a deeply embedded relationship"
with his American Indian heritage, in which Veronica will be raised.
But the Capobiancos
point to another part of the state court's conclusion: that despite a
ruling against them, they were "ideal parents who have exhibited the
ability to provide a loving family environment." That court said its
hands were tied, and that federal law trumped state law.
"Courts in seven states
have held that ICWA does not bar courts from terminating the parental
rights of a non-custodial father under state law when the father
abandoned his child to the sole custody of a non-Indian mother," said
Lisa Blatt, attorney for the couple.
She says the father's
initial agreement to give up his parental rights meant he forfeited any
subsequent efforts to establish custody, when the child was already in a
happy, stable home environment.
The Capobiancos argue
Brown had refused to offer any financial assistance to the biological
mother until they were married and "wanted nothing to do" with the
pregnancy.
As a single mother with
two other young children, the biological mother felt she had no choice
but to give her daughter up for adoption, said a legal brief filed by
her lawyers. They say she complied with the adoption laws in both states
and with the tribe.
The couple also says
they long wanted to be parents and had seven unsuccessful attempts at in
vitro fertilization.
She is a child developmental psychologist and he
is an automotive body technician. They were in the room when Veronica
was born, and had an "open" adoption, meaning the biological mother
could and did maintain a relationship with Veronica.
The case is Adoptive Couple v. Baby Girl, a Minor Child Under the Age of Fourteen Years (12-399).
Source: CNN
It's obvious this Multiracial child was NOT taken from a Native American home and placed with a White family. She was taken from the hospital, from her White mother, by her adoptive parents. I do not see where the Cherokee Nation or the biological father have any right to remove this little girl from her home. Mr. Brown gave up his parental rights before Veronica was born. If it was legal then, it is legal now. I sincerely hope the US Supreme Court sees it that way and returns Veronica to her adoptive parents asap. This selfish action by the biological father is nothing more than an effort to reclaim what he and his tribe sees as his property. This has nothing to do with the best interests of the Veronica.
ReplyDeleteVeronica is not only Native American; she is also white. She has a multiracial heritage, as well. Everyone, including the courts and media, seem to be forgetting that this is about a MULTIRACIAL child!
ReplyDelete