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The question of who will raise Baby Veronica is once again up in the air following a decision by the U.S. Supreme Court Tuesday that some adoption experts say provides much needed clarification about when a federal law governing adoption placements of American Indian children should be invoked.
In a narrow 5-4 decision that sent the case back to a South Carolina court for reconsideration, the majority held that the Indian Child Welfare Act (ICWA) applies only when a parent's "continued custody" of an American Indian child is in question. That wasn't the case in the Baby Veronica situation, it said, because the biological father didn't have custody of the child before a lower court ruling when she was two years old.
The act sets minimum standards for removing an American Indian child from his or her family and, after remediation efforts fail, says preferred placement is with extended family, other members of the child's tribe or other Indian families. In this case, where the biological father never had legal or physical custody of the child, "the dissolution of Indian families is not implicated," the court said.
It also held that ICWA's preferred placement provision did not apply since the adoptive couple was the only party that sought to adopt the child.
"Our reading [of the act] comports with the statutory text demonstrating that the primary mischief the ICWA was designed to counteract was the unwarranted removal of Indian children from Indian families due to the cultural insensitivity and biases of social workers and state courts," Associate Justice Samuel A. Alito Jr. wrote in the majority opinion.
Under the South Carolina Supreme Court reading, "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 interests," the court said.
Terry Cross, executive director of the National Indian Child Welfare Association, said the good news was the ruling recognized the validity of the Indian Child Welfare Act.
"This opinion confirms that Congress retains the authority to protect Indian children," Cross said in a statement. "The case has been sent back to the South Carolina Supreme Court based on a technicality. Although we are deeply disappointed that this case is not over, Dusten [Brown] will continue to fight for his daughter and we believe that he will prevail. Veronica will stay with her family."
Mark D. Fiddler, an attorney for adoptive couple Melanie and Matt Capobianco, said the couple is "thrilled with the court's decision and look forward to reuniting with their daughter, and yet they hope Veronica's birth father will stay involved in their daughter's life."
Mark Demaray, past president and spokesman for the American Academy of Adoption Attorneys, said the decision gives "much needed guidance" so all involved know when ICWA applies and when it doesn't, and "prevent tragic cases like this one from occurring in the future."
"This hugely clarifies for us in the real world ... what the rules of the game are," Demaray said, adding the South Carolina court will now have to decide whether Brown acted properly to assert his rights under the state's laws and what is now in the best interests of the child.
Utah adoption attorney Larry Jenkins, who has handled "dozens" of adoptions involving American Indian infants over the past decade, hailed the decision as a "common sense approach" that "really is looking out for the child."
"If you've got an [American] Indian parent who has never had custody, or custodial rights in the child, and there hasn't been a family broken up by termination of parental rights, we look to state rights to see if parental rights can be terminated," Jenkins said.
Unwed fathers who never had custody of a child would thus be subject to state law governing parental rights in adoption cases. Indeed, the court noted that "the fact that state laws may provide certain protections to biological fathers who have abandoned their children and who have never had custody of their children in no way undermines our analysis [of ICWA's provisions]."
"Unfortunately, the natural father in this case did not fit the majority's stereotype of the kind of parent the ICWA was designed to protect because he could have done a lot more to 'step up to the plate' in the beginning than he did," said Scott Wiser, a Utah attorney who has represented fathers in several high profile adoption cases. "Yet, in order to reach a palatable result the Court tossed out several parts of the Act that were intended to protect unmarried Native American dads who wanted to take responsibility for their kids and teach them about their precious Indian heritage and culture which they would never know about living with someone else."
ICWA has been at the center of several adoption disputes in Utah in recent years. In 2010, the Utah Supreme Court dismissed an appeal by the Navajo Nation that sought to undo the adoption of two siblings by a non-American Indian family. The Utah court said the tribe acted too late and neither ICWA nor the quasi-sovereign status of tribes trump state filing requirements. In 2011, the 10th Circuit Court of Appeals, ruling in a Utah case, said a district court erred in finding a birth mother's rights had been improperly terminated after her child was later deemed to be a member of the Cherokee Nation. The appellate court said while the baby's grandmother was a registered tribe member, ICWA only covers full members, not those with temporary status such as that bestowed on the child.
In Utah, 598 American Indian children were in state foster care over the past five years. Of those, 82 were adopted 60 by non-American Indian families and 22 by American Indian adoptive parents, according to data provided by Liz Sollis, spokeswoman for the Division of Children and Family Services.
Casey Family Programs, Child Welfare League of America and Children's Defense Fund had joined with 15 other national child welfare organizations in filing an amicus brief in support of ICWA. The groups said in a statement Tuesday the ruling threatens to "undermine principals that represent the gold standard in child welfare" and is a "step backward for children and families."
"While this case was a disappointing setback, we are committed to continuing and strengthening our work with tribes, states and the federal governments to ensure that Indian children and families continue to benefit from the best approaches and legal safeguards in child welfare," said David Sanders, Casey Family Programs' executive vice president. "We can't allow this decision to turn the clock back on decades of innovative and important improvement in our approach to child welfare."
The Associated Press contributed to this story.
Background of Baby Veronica case
Christina Maldonado and Dusten Brown, a member of the Cherokee Nation, became engaged in December 2008. A month later, Maldonado told Brown she was pregnant. He asked that the wedding date be moved up and refused to provide any financial support until they were married. Maldonado broke off the engagement in May 2009 and the next month sent Brown a text message asking him whether he wanted to pay child support or relinquish his parental rights.
In a text message, Brown said he would give up his rights. Maldonado then proceeded with an adoption. Her attorney sent a letter to the Cherokee Nation asking it to confirm the biological father was a member but misspelled the man's first name and misstated his birth date. The tribe responded that it had no such person registered in its records.
The baby was born in Oklahoma on Sept. 15, 2009, and placed with Melanie and Matt Capobianco of South Carolina. Four months later, they notified Brown of the pending adoption and Brown signed papers indicating he would not contest the adoption. Brown later asserted he had not understood what rights he was giving up. A day later, he hired an attorney and intervened in the adoption proceedings.
In September 2011, a South Carolina trial judge ruled that the adoptive parents had not shown the child would suffer irreparable harm if the biological father had custody, denied the adoption petition and awarded custody to the dad. Three months later, Brown took custody of the toddler. The South Carolina Supreme Court affirmed the trial court decision after concluding the adoption proceeding violated Brown's rights under ICWA. The adoptive parents appealed.