Case of Baby Veronica Is a Primer on Not Just Adoption Law, but Native American Affairs
Provided by HG.org
So-Called Baby Veronica is now four years old, and has already been the subject of a case that has traveled all the way to the US Supreme Court and back down through several state courts. The case is a twisting tangle of different legal principles intermingled with social policies, making for a great primer on both adoption laws and Native American affairs.
Veronica’s unwed birth mother decided to put her up for adoption before she was born and selected Matt and Melanie Capobianco of Charleston, S.C., to raise her daughter. They were at her birth in Oklahoma. The father, Dusten Brown, is a member of the Cherokee Nation and was not at Veronica's birth. He and his former fiancee had split despite his offer of marriage. Replying to her text message about whether he would rather pay child support or give up rights to the child, he chose to give up any claim to Veronica. But, shortly thereafter, as Brown was about to be deployed to Iraq, he discovered that his daughter, whom he had given up in a text message to the woman who had jilted him, had been adopted. He had assumed his former fiancee intended to raise her, given the questions about child support, and learning that Veronica would not be raised by either of her biological parents, Brown sprung into action. He hired an attorney to stop the adoption and invoked the Indian Child Welfare Act (ICWA) to support his position.
The ICWA was enacted in 1978 to discourage adoptions outside tribes, combating a tendency to place Native American children with non-native families, eroding the cultural heritage of this minority group. The ICWA created extremely difficult regulatory hurdles to overcome in order to terminate a Native American's parental rights.
The South Carolina Supreme Court in 2011 found that the ICWA required Veronica to be taken from the Capobiancos, her adoptive parents who had raised her for the first 27 months of her life, and given to her biological father, Brown. Veronica had lived with Brown ever since. But, on June 25, 2013, the US Supreme Court ruled for the Capobiancos, the adoptive parents. Justice Samuel A. Alito Jr., writing for a five-member majority, said that the ICWA does not apply when “the parent abandoned the Indian child before birth and never had custody of the child.” Justice Sonia Sotomayor, writing for the dissenting justices, countered that the majority had twisted the clear language of the law to reach an intended result, and predicted that “the anguish this case has caused will only be compounded by today’s decision.”
The case was returned to the South Carolina high court, which ruled in mid-July, 2013 that the Supreme Court’s decision about the reach of the ICWA meant that Brown’s parental rights should be severed and the Capobiancos’ adoption of Veronica should be granted. Brown filed several cases in Oklahoma, which declined to contradict the South Carolina rulings. In the meantime, the Cherokee Nation court awarded temporary custody of Veronica to Brown’s parents and his wife while he was at National Guard training out of state. Veronica now resides on tribal land in Oklahoma, and there is no sign she will be leaving anytime soon.
The Capobiancos arrived in Oklahoma on Aug. 15 and have been there since. They have regular visits with Veronica at a child-care center, but have yet to be granted the custody suggested by the US Supreme Court's holding or the South Carolina court's final rulings.
The governors of Oklahoma and South Carolina have since become involved, adding an interesting extra-legal / political element to the dispute. South Carolina's governor wants to extradite Brown to her state to face charges for not cooperating with the court’s orders, and Oklahoma's governor has agreed. An extradition hearing is scheduled for Brown in October, 2013. Meanwhile, the Cherokee Nation has thrown its support behind Brown, using public statements to draw attention to the case and advocate for Brown. The Capobiancos, responded through their attorney that they believe Brown and the Cherokee Nation are wilfully ignoring the order of the courts and abusing the legal process.
Another trip through the federal court system seems likely.
The case demonstrates the blurred lines between political policies based on giving rights to disadvantaged and disenfranchised minorities and typical rules of law applied to most adoption proceedings. Moreover, there is the additional entanglement of political figures and the Cherokee Nation. The case demonstrates just how complicated even the relatively straight forward process of a consensual adoption can become. As a result, even when a matter seems straightforward, it is often wise to first consult with an attorney to make sure that if things do go wrong someone will be there to help keep your interests protected.
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Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. For specific technical or legal advice on the information provided and related topics, please contact the author.
The ICWA was enacted in 1978 to discourage adoptions outside tribes, combating a tendency to place Native American children with non-native families, eroding the cultural heritage of this minority group. The ICWA created extremely difficult regulatory hurdles to overcome in order to terminate a Native American's parental rights.
The South Carolina Supreme Court in 2011 found that the ICWA required Veronica to be taken from the Capobiancos, her adoptive parents who had raised her for the first 27 months of her life, and given to her biological father, Brown. Veronica had lived with Brown ever since. But, on June 25, 2013, the US Supreme Court ruled for the Capobiancos, the adoptive parents. Justice Samuel A. Alito Jr., writing for a five-member majority, said that the ICWA does not apply when “the parent abandoned the Indian child before birth and never had custody of the child.” Justice Sonia Sotomayor, writing for the dissenting justices, countered that the majority had twisted the clear language of the law to reach an intended result, and predicted that “the anguish this case has caused will only be compounded by today’s decision.”
The case was returned to the South Carolina high court, which ruled in mid-July, 2013 that the Supreme Court’s decision about the reach of the ICWA meant that Brown’s parental rights should be severed and the Capobiancos’ adoption of Veronica should be granted. Brown filed several cases in Oklahoma, which declined to contradict the South Carolina rulings. In the meantime, the Cherokee Nation court awarded temporary custody of Veronica to Brown’s parents and his wife while he was at National Guard training out of state. Veronica now resides on tribal land in Oklahoma, and there is no sign she will be leaving anytime soon.
The Capobiancos arrived in Oklahoma on Aug. 15 and have been there since. They have regular visits with Veronica at a child-care center, but have yet to be granted the custody suggested by the US Supreme Court's holding or the South Carolina court's final rulings.
The governors of Oklahoma and South Carolina have since become involved, adding an interesting extra-legal / political element to the dispute. South Carolina's governor wants to extradite Brown to her state to face charges for not cooperating with the court’s orders, and Oklahoma's governor has agreed. An extradition hearing is scheduled for Brown in October, 2013. Meanwhile, the Cherokee Nation has thrown its support behind Brown, using public statements to draw attention to the case and advocate for Brown. The Capobiancos, responded through their attorney that they believe Brown and the Cherokee Nation are wilfully ignoring the order of the courts and abusing the legal process.
Another trip through the federal court system seems likely.
The case demonstrates the blurred lines between political policies based on giving rights to disadvantaged and disenfranchised minorities and typical rules of law applied to most adoption proceedings. Moreover, there is the additional entanglement of political figures and the Cherokee Nation. The case demonstrates just how complicated even the relatively straight forward process of a consensual adoption can become. As a result, even when a matter seems straightforward, it is often wise to first consult with an attorney to make sure that if things do go wrong someone will be there to help keep your interests protected.
Copyright HG.org - Google+
Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. For specific technical or legal advice on the information provided and related topics, please contact the author.
