ONTD Political

Adoption Case Brings Rare Family Law Dispute To High Court

12:57 pm - 04/16/2013
Take the usual agony of an adoption dispute. Add in the disgraceful U.S. history of ripping Indian children from their Native American families. Mix in a dose of initial fatherly abandonment. And there you have it — a poisonous and painful legal cocktail that goes before the U.S. Supreme Court on Tuesday.

At issue is the reach of the Indian Child Welfare Act, known as ICWA. The law was enacted in 1978 to protect Native American tribes from having their children almost literally stolen away and given to non-Indian adoptive or foster parents.

Two of the justices likely have a special interest in the case: Chief Justice John Roberts and Justice Clarence Thomas both have adopted children.

The case before them and the other justices is a tragic saga. Christy Maldonado, an Oklahoma resident of primarily Hispanic heritage, was engaged to be married to Dusten Brown, a member of the Cherokee Nation, who is technically about 2 percent Native American. In 2009, Christy, a casino worker and single mother of two, told Dusten she was pregnant. But the relationship deteriorated and she broke off the engagement.

Beyond these facts, the protagonists in this story agree on little. One fact, though, is beyond dispute: Whatever happened in the first few months of the pregnancy, Dusten eventually texted Christy that he was giving up his parental rights and would not support the child.

"It punched me in the gut, knowing that the father of my child did not want her at all," Christy says. "That's when I pretty much decided I had to do something because I could barely even put food on the table for the kids at that time."

An Adoption, And A Legal Challenge

Christy decided to put her child up for adoption. Through an agency, she found a couple in South Carolina she liked, Matt and Melanie Capobianco, and the three agreed to an open adoption. The Capobiancos helped support Christy in the last months of the pregnancy and were in the delivery room for the birth. Matt cut the umbilical cord.

A month prior to the birth, Christy, through her lawyer, sent a letter notifying the Cherokee Nation of her adoption plans, giving them a chance to intervene under the Indian Child Welfare Act. The tribe said it had no record of Dusten Brown as a tribal member. So the adoption went forward.

Four months after the birth of the baby girl — as Dusten was about to deploy to Iraq, and as the adoption was about to become final — he was served with papers notifying him of the adoption. Dusten signed off on them, inadvertently, he says. But within days he filed a formal objection, invoking the Indian Child Welfare Act. He says that in agreeing to give up his parental rights, he thought he was relinquishing his parental rights to Christy.

"I just figured the best interest would be ... for [Christy] to have the full custody of her, but for me to still be in the picture — be able to come visit and stuff," he says.

But after learning about the adoption, he sought full custody of his daughter. While there is no doubt that he would have had no leg to stand on under state law, by the time the case went to court, the Cherokee Nation had located him in its records. And the South Carolina courts ruled that the Indian Child Welfare Act trumped state law. In December 2011, the South Carolina Supreme Court ordered the Capobiancos to give their then-2-year-old daughter to her biological father, a man she had never met.

"It was by far the worst day of our lives and I'm sure of hers," says Matt Capobianco. "She cried after us," Melanie adds.

The adoptive parents appealed to the U.S. Supreme Court, backed by the birth mother and the guardian ad litem, appointed by the South Carolina family court to represent the best interests of the child.

Normally, the Supreme Court does not hear such family law disputes, but this case is a test of the Indian Child Welfare Act.

Competing Views

The law was enacted after extensive congressional investigations and hearings revealed that 35 to 40 percent of Native American children were being improperly removed from their families and given to white adoptive and foster parents. Charles Rothfeld, Dusten Brown's lawyer, notes that these abuses were "catastrophic" for the tribes, which "were at risk of becoming extinct because their children were literally being taken away from them."

To combat the dire situation, ICWA established a chain of adoptive preferences for children with Indian heritage. In the event that neither parent could take custody, other Indian family members were to have priority, and after that, tribal adoptive parents.

Just how you see this case is something of a Rorschach test, with the adoptive parents seeing it one way, the father another, the mother yet another, and the court-appointed guardian still another.

As the adoptive parents see it, they were not stealing a child from an Indian parent because the only parent with Indian heritage had already given up his parental rights. And as the Capobiancos' lawyer, Lisa Blatt, puts it, the federal law was meant to protect Indian children from being snatched from their existing Indian families.

Even if Dusten qualifies as "a parent" under the law, "the Indian Child Welfare Act only protects those parents who already have a prior custodial relationship," she argues.

Not so, say the tribes. They see the case as an attempt to undo the protections that Congress established in the face of evidence that states were trampling on the rights of Native American parents.
"Congress decided it had to step in," says Rothfeld, and it did so by creating "special federal rules superseding state custody rules that would govern where Indian child custody was at stake."

The case also is about the autonomy of a non-Indian mother. The birth mother's lawyer, Lori Alvino McGill, contends that if Indian fathers can sweep in this way, based only on biology, and override the birth mother's decision, why couldn't sperm donors or rapists who are Indian do the same? "No other set of men can choose to kind of sit back, renounce all responsibility but hold a back-pocket veto to an adoption choice," she says.

The guardian ad litem, represented by lawyer Paul Clement, scathingly says there is "no box" like the one Dusten Brown is seeking to check.

"Generally you're not allowed to say, 'Well, look, I don't really want to give you any financial support, I don't really want to have much to do with this child, but I do really want you, person I've just gotten pregnant, I want you to take care of this child, and I don't want you to do something like give up this child for adoption,' " he says.

What's more, he adds, under state law, it is the best interests of the child that prevail. "Except if this federal statute applies and applies only on the basis of her Indian heritage, well, then everything changes. ... It just completely shifts the focus of the whole proceeding around based on race," says Clement, and "that's something that we generally wouldn't think the Constitution allows."

A Heartbreaking Case

Native Americans bristle at the charge of racial classification. Indian tribes, they note, are quasi-sovereign nations recognized by the U.S. Constitution.

"This law does not apply because of race," says Chrissi Nimmo, assistant attorney general of the Cherokee Nation. "This father was a citizen of the [Cherokee Nation's] government; it's not just if you have Indian in your background."

Whichever way the Supreme Court rules in June, the case of "Baby Girl," as she is referred to in the briefs, is heartbreaking. No one disputes that she was sublimely happy with her adoptive parents, and videos of her with her father, now married, seem to show a little girl equally happy.

Her birth mother says that while she spent time with her child at the adoptive parents' home in South Carolina and listened to her child on the phone regularly, she now does not even know where her daughter lives. Neither do the adoptive parents. Dusten Brown says he has kept his daughter apart for the past 16 months to allow her to become used to her new home, away from the chaos and bitterness of the legal fight.

Source, Source 2, Source 3

Honestly, this guy sounds like a douche. Now, he has a problem with the adoption but when the original situation was a struggling single mother giving birth to another child without any financial support from the biological father it was totes okay because he could totally "visit and stuff". On another note why isn't the Cherokee Nation's tribal roll in order, why did it take so long to find Dusten in their records? All in all this case sounds like a horribly emotional mess and if this is to be the test case for the Indian Child Welfare Act it it s so unfortunate that they have such an unsympathetic person.
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gambitia 16th-Apr-2013 05:40 pm (UTC)
Why does the article point out that Dusten is "2% Cherokee"? I don't believe it matter what percentage he is (genetically, I assume).

This looks like an epic clusterfuck of legal shenanigans and douchebaggery. I understand the law and the completely valid protections it was put in place to provide, but this seems like a poor application of the law. A father who abandons a child isn't going to teach the child about his culture. And even if the father wanted to keep contact, why couldn't he do that in an open adoption agreement?
world_dancer 16th-Apr-2013 05:45 pm (UTC)
Some tribes base tribal membership on blood purity (I don't know what better term to use if there is one). They usually do this when there's money at stake. The Cherokee Nation, from what I looked up earlier, doesn't happen to care.

And the only reason to mention it is to try to discredit the guy just for claiming to be Cherokee. Nevermind that his family is active in tribal culture. I'm also doubtful that's accurate, since I believe both his parents are Cherokee.
world_dancer 16th-Apr-2013 05:41 pm (UTC)
It took so long to find the guy because the biomom misspelled his name and supplied the wrong birth date. It's documented in the court case (if I understand the reference correctly) that she was evasive and knew there would be a problem with adoption because the child is a Cherokee child, and so she tried to hide that fact (see the wiki footnotes and references).

I agree with you that the guy sounds at least like an irresponsible young man not wanting to pay child support. But he did step up once he understood what was going on, and chose to take on the child on his own. So he loses some points for making the wrong first decision, but he gets them back for genuinely wanting the kid. There's no reason to fight this hard if he didn't.
gambitia 16th-Apr-2013 05:53 pm (UTC)
The problem I have isn't that he doesn't want the kid--from the way this article is written, he didn't want the financial responsibility of the child, which led to the mother deciding to put the girl up for adoption as she couldn't afford a 3rd child with no support. It's a common failing in men, but I see no reason to give him a pass for that.
pepsquad 16th-Apr-2013 05:48 pm (UTC)
Cherokee have a rep of enrolling any one who has any small provable percentage (unless you are black- there was a big fluff up a while ago about that) to fluff the rolls so they have many many members to dig through.
calendae 16th-Apr-2013 11:40 pm (UTC)
That's not quite true. They don't have a blood quantum requirement, that is true, but you still have to have be a descendant of someone on their census roles from the 19th century. The cherokee freedman case is a different ball of wax which doesn't have to do with blood quantum.
chaya 16th-Apr-2013 06:09 pm (UTC)
Please add an lj cut.
serendipity_15 16th-Apr-2013 09:56 pm (UTC)
chaya 16th-Apr-2013 06:13 pm (UTC)
The act being cited was put in place for a very good reason. This guy's case is not it. Respect the wishes of the mother - not the man who walked out on her.
romp 16th-Apr-2013 06:22 pm (UTC)
Are you saying that the act should be followed--it exists for good reason, as you said--or the wishes of the mother--adoption agency--should be followed?
hilsongirl 16th-Apr-2013 06:23 pm (UTC)
he is gonna compromise the welfare of the child so he can stop by once a year to say hi. well, give him a father of the year award.
pleasure_past 16th-Apr-2013 06:30 pm (UTC)
He's had full custody of the child for over a year, unless I'm misunderstanding something...
jenny_jenkins 16th-Apr-2013 06:26 pm (UTC)
I read the line about how he ditched responsibility for his infant via text message. I'm having a hard time getting past it, tbh.

Were there, like, text-abbreviations in this thing? How classy did it get?
evilgmbethy 16th-Apr-2013 07:35 pm (UTC)
seriously, I mean wow
pleasure_past 16th-Apr-2013 06:28 pm (UTC)
The adoptive parents and the birth mother all deliberately hid the adoption from both the birth father and the Cherokee Nation. That alone is pretty much enough for me to say this adoption should never have been valid in the first place. I'm not saying the dude hasn't fucked up, but I think the law is and should be on his side as far as the adoption goes. Also, I'm having a really hard time thinking of situations where I'd be okay with removing a happy and healthy PoC child from the home of her biological father just because some nice white people think they want her more. (Oh, and let's not forget the argument that the adoptive parents are obvs better parents because they can pay for private school! Yeeeeeeeeeeeeeah, fuck no.)

Edited at 2013-04-16 06:29 pm (UTC)
bestdaywelived 16th-Apr-2013 06:45 pm (UTC)
Why should the law be on his side when he didn't want to support his daughter in the first place, forcing his ex to place her for adoption?
yeats 16th-Apr-2013 06:58 pm (UTC)
the atlantic article (source #2) is especially enlightening on this case and the ugly arguments being made by the adoptive family's lawyer:

This is another case where state law conflicts with federal law -- which means it is yet another Supreme Court case involving principles of federalism and states' rights. Enter Clement, the conservative lawyer, who on behalf of the child's guardian (more on her later), has filed a jaw-dropping brief. Clement doesn't just want to win for the Capobiancos. He wants also to undermine Congressional authority over the ICWA and all federal Indian law, and he wants to do so not just for this client but for another client, a non-Indian gaming client (who, as you might imagine, also has great eagerness to see the demise of federal Indian law).

So the federalism argument is here. And Clement also makes explicit some of the ugliest threads of this story. Brown doesn't deserve to have custody of his daughter, Clement argues, in part because he has only "a sliver of genetic material" making him a Native American. The child is "predominantly Hispanic with some Native American and Caucasian background," Clement writes, as a prelude to his argument that the little girl's equal protection rights have been violated because the ICWA is a law based unlawfully upon race. Got that? By protecting Indian fathers and Native American heritage, the federal law unfairly burdens white people.

romp 16th-Apr-2013 08:54 pm (UTC)
Yeah, I've read enough to see this is an attack on the ICWA. This isn't about making an exception--it's about weakening restrictions that exist for good reason.

Wish I could link your post all the way down the comments...
julietislimited 16th-Apr-2013 07:11 pm (UTC)
the adoptive parents have a website called save veronica and for some reason that irks me. why does she need to be saved? she seems to be thriving with her father.
romp 16th-Apr-2013 08:56 pm (UTC)
I recently read a summary of a novel about a First Nations teen who finds Jesus but his tribe wants to indoctrinate him into their dark and pagan ways. I don't think I'd realized that this is a real fear for many Christians. o.0
suwiel 16th-Apr-2013 07:12 pm (UTC)
The article that was posted about this just a few days ago seemed to have more info than this one and painted the father in a more favorable light. After reading the two, I guess I'm hesitant to make any solid opinion on this particular case.
kagehikario 16th-Apr-2013 08:19 pm (UTC)
Yep! Floating in Team Nobody over here as well- it's like the awful reverse intersectionality of White Privilage versus Male Privilage...
evilgmbethy 16th-Apr-2013 07:33 pm (UTC)
ugh he really does sound like a douchebag. Telling her via text he doesn't want to be a parent? He was willing to sign away his rights and responsibilities but thought he could still be a part of the kid's life? I have no sympathy tbh.
kishmet 16th-Apr-2013 08:42 pm (UTC)
uhhhhh Team Nobody tbh, or rather Team Whatever's Best For The Kid

given the comments it's hard to tell whether the mother had reasons for her deception or what. For all we know the guy's parents or siblings or whoever are abusive assholes and she worried they might get custody under the terms of the act, or she wasn't sure tribal parents would let her visit or w/e. I just have a really hard time judging a woman for wanting to keep some control over where her bio kid goes and with who

Bu-ut then it also seems possible that she and the adoptive family are both racist assholes given the arguments against the bio father so I don't know what the hell to think
the_physicist 17th-Apr-2013 10:15 am (UTC)
this is pretty much how i feel. the case is complex and we don't know all the details we'd like to know to make up an opinion. this article is clearly biased though and doesn't even try to show how complicated it really is.
curseangel 16th-Apr-2013 09:25 pm (UTC)
Frankly, kiiind of siding with the mother on this. He took the papers and signed away his parental rights, and the papers apparently said it was for an adoption, he just glossed over that part. Then when it became clear that she wanted to give up the baby -- not just be the baby's sole caretaker and take on all the expenses and time and everything to do with it and let him swan in to play daddy for some Kodak moments -- he suddenly wanted custody? Uh, what?

The adoptive parents (and especially their attorney) seem like assholes (and racists). But this guy seems like a complete creep.

I have very little sympathy for men who want to force women to take full responsibility for and care of children just so they can "play dad" every now and again, which is exactly what this guy wanted. The fact that he's apparently now married and thus has a new woman to foist his child off on, so he's able to pursue custody, doesn't make me feel any better about that.
idemandjustice 16th-Apr-2013 11:01 pm (UTC)
These are pretty much my feelings too. I think I just hate everything. And feel bad for the mother and the baby.
romp 16th-Apr-2013 09:26 pm (UTC)
This article is misleading based on others on the same case. Some of the commenters here have tried to correct this, like this one.

Fortunately, we don't debate what to do with aboriginal children in the US and Canada. Because of history AND the current way in which their families are screwed by poverty and bureaucracy, there are safeguards against the children being adopted by people outside their culture.
thenakedcat 17th-Apr-2013 04:34 pm (UTC)
May those safeguards live to see another century.
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