Adoptive Couple v. Baby Girl

Anita FinedayManaging DirectorCFP-ICWP

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Adoptive Couple v. Baby Girl

Decided June 25, 2013570 U.S. ___ (2013)

a.k.a. The Baby Veronica case

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The Facts

• Dusten Brown is a member of the Cherokee Nation

• Dusten and Birth Mother had on and off relationship for years

• Became engaged• Birth mother became pregnant• Dusten in Army stationed at Fort Sill

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The Facts

• Dusten wants to move up wedding date• Birth Mother breaks off engagement and cuts off

contact with Dusten• Dusten has one child already and Birth Mother

has three via other relationships• Birth mother text Dusten: “Pay child support or

relinquish parental rights?”

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The Facts• Dusten thinks relinquishing rights to Birth Mother

(like sole custody, not tpr)• Dusten thinks may be path to reuniting so

agrees• Birth mother makes arrangements for Matt &

Melanie Capobianco to adopt baby• Capobiancos present when baby born (9/15/09)• Three days later Capobiancos take baby to

South Carolina

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Christmas with Capobiancos

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Veronica More Recently with Father and his Wife

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The Facts• Four months later, Capobiancos’ attorney files

adoption petition• Days before about to ship out, Dusten presented

with papers• Signs thinking only acknowledging service, not

relinquishment• Within a week, Dusten hires attorney and stay of

adoption issued

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Contact with Cherokee Nation

• Birth mother tells Capobiancos’ attorney of Dusten’s tribal membership

• Attorney sends notice with incorrect first name spelling and birth date

• Cherokee says Baby not eligible– But also says determination could be different if other

information is provided– Later in case, Baby is enrolled and Nation intervenes

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South Carolina Court Proceedings• Family court finds ICWA applies• Finds that petitioners didn’t

meet heightened burdens of proof & didn’t comply with “active efforts”

• Finds Dusten to be a fit parent• Denies petition; upheld on

appeal• Veronica goes home with

Dusten (12/31/11 - 27 mths old)

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Key factor: Differing state laws for birth fathers

• Some states (CO, ME, MN?) say parental rights exist from birth

• Birth parents have right to notice and to object to adoption

• Must have t.p.r. & best interest finding

• South Carolina and other states say birth parent must make affirmative action to obtain parental rights

• Dusten failed to take steps so no right to object

• No “legal” custody

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“Continued custody”

1) Section 1912(f) bars TPR unless a showing of serious harm from parent’s “continued custody”– Does not apply when the parent never had

physical or legal custody of child

Majority held ICWA doesn’t bar termination of Dusten’s parental rights. 3 rulings:

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“Continued custody”

2) Section 1912(d) requiring “active efforts” to prevent “break up of Indian family” does not apply when parent abandons child and never had custody.

3) Section 1915(a) establishing placement preferences does not bar non-Indians from adopting Indian child when no other eligible candidates have applied

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Summary of Majority Ruling

“In sum, when, as here, the adoption of an

Indian child is voluntarily and lawfully

initiated by a non-Indian parent with sole

custodial rights, the ICWA’s primary goal of

preventing the unwarranted removal of

Indian children and the dissolution of Indian

families is not implicated.”

Associate Justice Samuel Alito

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ICWA’s Constitutionality Upheld

• Justice Thomas all alone• Narrow reading that Indian

Commerce Clause doesn’t authorize ICWA– Not commerce– Not regulating tribes per se

• Goes along with majority based on the doctrine of “constitutional avoidance”

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Clues to Unclear and Incorrect Result

1) Not all majority agree or willing to accept consequences (Breyer)

2) Need to pick “continued custody” out of context and work backwards

3) Majority’s aversion to Congressional intent of ICWA

Associate Justice Sonia Sotomayor

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Breyer’s Concerns—but goes along anyway

• Majority ruling could exclude fit fathers

• May be circumstances dictating different outcome--father is deceived, pays support, is prevented, etc.

• “Other statutory provisions may prove relevant” to case’s outcome

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Back to South Carolina

• USSC remands to SC Supreme Court• SC Supreme Court remands to Family

Court• As if ruling never happened?• Two adoption petitions have been filed• “Best interest” of the child standard

applied

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What is in Veronica’s best interest?

• Dusten is a fit parent• Child with Capobiancos for

27 months• Guardian ad litem supported

adoption• Child with her father for 1 ½

years at Cherokee