(402) 597-3100
voices@voicesforchildren.com

Blog

Adoptive Couple v. Baby Girl

The US Supreme Court under renovations. Image CC by 2.0 via flickr user Phil Roeder

The custody battle for “Baby Veronica” has been discussed and debated around dinner tables across the country, but “Baby Veronica” isn’t a celebrity—at least not in the strictest sense—after all, she is not a singer/actress/athlete, nor is she the daughter of a singer/actor/athlete.   “Baby Veronica” is the 3-year-old biological daughter of Dusten Brown, a registered member of the Cherokee Nation in Oklahoma, and Christina Maldonado and the subject of last week’s United States Supreme Court ruling, Adoptive Couple v. Baby Girl.

Background

After the couple ended their engagement in May 2009, Maldonado, who was pregnant with “Baby Veronica” cut all communication with Brown, who was serving in the United States Army.  In June 2009, Maldonado asked Brown, via text message, if he would rather pay child support or relinquish his paternal rights to the child.

Brown responded that he would relinquish his rights.

Afterwards, Maldonado began working with an adoption agency and, after her birth, “Baby Veronica” was placed with Matt and Melanie Capobianco, a South Carolina couple not of Native American descent.

Indian Child Welfare Act of 1978

The Indian Child Welfare Act (ICWA) was enacted in 1978 to protect Native American (Indian) tribes and their children, as up to 35% of the children were being removed and placed with strangers outside of their tribes, subsequently losing parts of their native cultures and threatening tribal survival.

Congress found that the continued existence of native tribes was as important as the best interest of the child.  As a result, when a Native American parent voluntarily relinquishes his/her parental rights, the relinquishment must be done:

(1)   In writing

(2)   Before a judge who certifies

  1. That the parent understood his or her actions
  2. Understands spoken English, or, if not, has a translator available

(3)   10 days after the child’s birth (at the earliest)

The Native American parent can also withdraw his or her consent to an adoption any time before a final order or within 2 years of the final order if the consent was obtained through fraud or duress.

When consent is withdrawn, or if ICWA procedures are not followed, the Native American child is to be returned to the Native American parent immediately.

United States Supreme Court Decision

The majority read the Indian Child Welfare Act as being primarily concerned with child welfare proceedings; those where a child protection investigator or police officer comes into the Native American family’s home and removes the child, thus breaking up the Native American home.

The Court limited its ruling to a determination that a “ICWA’s primary goal [was] not implicated when an Indian child’s adoption is voluntarily and lawfully initiated by a non-Indian parent with sole custodial rights,” meaning that a Native American father, who does not have custody of the child, but seeks to use ICWA to counter the voluntary adoption, falls outside of the law’s scope.

The majority did not see the actions of Ms. Maldonado and the Capobiancos as breaking up a Native American family because the only Native American parent was not actively engaging in the parenting of the child.  To the Court, this meant that there was no Native American family to break up.

As a result, the Court held that ICWA does not apply and returned the case to the state court, who must now decide, applying state laws, where to place “Baby Veronica.”

So what does the decision mean?

In the end, the Court did not expressly invalidate any of ICWA’s provisions and protections and ICWA still applies broadly to cases where Native American children have an established relationship with a Native American family.

Thank you to taking the time to share!

Post a comment

shares