In a case captioned Adoptive Couple v. Baby Girl, a divisive custody battle over a Native American child, the U.S. Supreme Court ruled Tuesday in favor of adoptive parents Matt and Melanie Capobianco, sending the case back to the South Carolina Supreme Court for further review.
Many in the Native American community were holding their collective breath as they awaited the high court’s ruling. In each of their respective homes, Christinna Maldonaldo, Dusten Brown and the Capobiancos were doing the same.
The stakes were high. For one couple, it could have meant the loss of a child. For a community, the possible loss of generations more.
Blissfully unaware is the dimple-cheeked 3-year-old at the heart of the case.
Young Veronica Capobianco does not know of the political firestorm that has swirled around her since birth. Resting on her tiny shoulders are the collective hopes of four parents and the weight of decades of ethnic oppression.
After the U.S. Supreme Court's ruling, it is unclear when South Carolina's high court will review the case of “Baby Veronica.” The case has garnered national attention and sparked heated debate over a federal law -- the Indian Child Welfare Act (ICWA) -- few have probably ever heard of.
It's a custody battle that has had four parents embroiled in a legal tug-of-war over Veronica’s best interests and thousands of supporters standing behind each of them. It also brought out the top firepower from law firms across the country. The lawyers were championing for the rights of women, children, mothers, fathers, adoption and minorities.
It also opened up old wounds over the mistreatment of Native Americans in this country. The issues were deeply personal on all sides and much has been misunderstood about this extremely complicated case -- which all started with one woman and one man.
He Said/She Said
Veronica’s birth parents, Christine Maldonado and Dusten Brown, both from Oklahoma, met as teenagers and dated on-and-off. They reconnected years later and eventually got engaged in 2008. Soon after, Maldonaldo became pregnant with Veronica. Before the baby was born, their relationship soured and communication broke down.
The two sides agree on very little else. It’s the “he said/she said” of custody battles and love-gone-wrong heard in family courtrooms across the nation -- except this one is being played out on a very public stage.
Maldonaldo says Brown was unsupportive of her pregnancy from the start, refusing to support the baby unless and until she married him. The ultimatum didn’t sit well with Maldonaldo, and she broke off the engagement. By June 2009, the two were only speaking through text messages.
Maldonaldo offered Brown a choice: Support the baby or give up parental rights. She says that, via text messages, Brown chose to terminate his parental rights to Veronica rather than pay child support.
Before Veronica was born, Maldonaldo, already a mother of two from a previous relationship, decided it was in her baby’s best interest to find a family to adopt her. She ultimately chose Matt and Melanie Capobianco, a couple from South Carolina.
Veronica was born in September and immediately began living with the Capobiancos.
In December, as Brown was preparing to deploy to Iraq, Maldonaldo’s attorney, Lori Alvino McGill, says Brown signed papers informing him of the pending adoption with the Capobiancos, with whom Veronica had been living for the previous four months.
Brown’s attorney, John Nichols, denied that his client ever relinquished his rights to his daughter or consented to her adoption. According to Nichols, when Brown learned of the adoption proceedings, he objected and commenced legal proceedings within a few days.
"I love my daughter. I have always wanted to be in her life and have her in mine,” Brown said prior to Tuesday's decision. “Whatever the Court decides, I'll do whatever we need to do in the courts to make sure that happens."
Terry Cross, founder and executive director of the National Indian Child Welfare Association and a member of the Seneca Nation, echoes this sentiment. “The common misperception was that [Brown] simply signed over his rights. He never gave consent. He didn’t even know that this child had been placed for four months and then only [found out] nine days before being shipped off to Iraq.”
From Joy to Heartbreak
According to a longtime friend of the Capobiancos, Jessica Munday, the couple had been trying to adopt for some time. When Maldonaldo chose them to be the adoptive parents of Veronica, they were thrilled.
Maldonaldo chose the couple because she felt a connection to them, says her attorney. The couple came out to spend time with the expectant mother in the final month of her pregnancy, and the three became very close. When Maldonaldo gave birth to Veronica in September, Matt Capobianco cut the umbilical cord.
Since she was already a mother, her attorney says Maldonaldo knew “she was going to feel a connection to this child and didn’t want to just give her away. It was really important to her to be able to maintain contact with the family.”
During the time that Veronica lived with the Capobiancos, Maldonaldo stayed in touch with them via phone calls, email, postcards, pictures and even visits on holidays and Veronica’s birthdays. Maldonaldo described them as “really warm, loving, doting, responsible people” and felt they embraced her as part of their family, said her attorney.
Munday says she had never seen her friends happier.
Four months into the adoption process, before it was finalized, the Capobiancos were notified that Brown had filed papers to gain custody of Veronica, citing violation of the ICWA. The Capobiancos were stunned.
ICWA requires that when a Native American child is available for adoption preference is first given to a member of the child’s extended family, second to other members of the child’s tribe and third to other Native American families. Only after these preferences have been exhausted may non-native adoption be considered.
Also, in order for a Native American parent’s parental rights to be terminated under ICWA, the parent must go before a federal judge and express his or her understanding and consent.
ICWA sets up rules that states have to follow when an American Indian child is put into foster care or placed for adoption. “We would like to see a day when ICWA is no longer needed,” Cross says. “But as this case demonstrates, we have to continue to fight for its enforcement.”
Cross continues, “We really want adoption attorneys to be well informed because we just never want a situation that’s like this. It happened to the Capobiancos, it can happen to anybody. It should never have happened.”
He also believes this case is as much about fathers’ rights as it is about ICWA. “As a Native father, I can’t imagine what it would be like to suddenly find out that your child was placed for adoption without your knowledge and people were asking you to give up your rights. I have a lot of admiration for a man who would put this much energy into getting his child back.”
Alvino McGill is in some ways fighting the same fight. She took the case because she was outraged at the way she felt ICWA had stripped away the birth mother’s right to make decisions concerning her own child. While she thinks ICWA serves a good purpose, she does not believe it was created to cover situations like this. According to Alvino McGill, under South Carolina state law, if ICWA did not apply, Brown would not have had legal standing to object to the adoption.
However, ICWA is federal and allowed Brown additional protections. It sets a higher bar for termination of parental rights and requires that the tribe be notified before a child is placed for adoption.
In September 2011, the case went to family court, which ruled in Brown’s favor. The couple took the case to the South Carolina Supreme Court, which upheld the lower court’s ruling in November of that year. The Capobiancos were ordered to turn over Veronica -- whom they had raised for two years at that point -- to her father.
The day after giving Veronica over to Brown on New Year’s Eve 2011, the Capobiancos were allowed one brief phone call with her. Maldonaldo and Veronica’s two half-siblings, who live in a neighboring county just miles from Brown, have not been allowed any contact.
Maldonaldo says it’s very hard not knowing what’s going on in her daughter’s life anymore and misses the regular updates she used to receive from the Capobiancos. It’s especially hard for her two children, ages 10 and 12, who she says “know there’s a battle going on,” but do not understand the big picture and are “crushed” they no longer get to see their little sister.
The Indian Child Welfare Act is a federal law enacted by Congress in 1978 in response to the abuses of the Indian Adoption Project (IAP) that took place from the 1950s through 1970s. “ICWA is really part of the healing process,” Cross says.
Before ICWA was enacted, thousands of American Indian children were removed from their homes by missionaries or social workers and placed in foster homes or with non-Indian adoptive parents, often without the say-so of their families or tribes.
A study by the Association on American Indian Affairs found that, by 1969, approximately 25% to 35% of American Indian children had been separated from their families. Cross described it as “a form of cultural genocide."
A large point of contention in this case has been that Veronica is of mixed race and is approximately 1% Cherokee Indian. Cross clarifies this misperception by explaining that ICWA is not about “how much” Indian blood one has -- it is about citizenship.
“If you are a citizen of a tribal nation, then you are covered by ICWA,” says Cross, “We don’t determine whether we are an American citizen by how much [American] blood we have. Your citizenship is determined by the nation that you live in.”
A case involving ICWA has only come before the Supreme Court once before. In 1989, it reviewed Mississippi Band of Choctaw v. Holyfield, in which Indian parents, pregnant with twins, wanted to place their babies for adoption with a non-Indian couple. The mother left to give birth off of the Choctaw reservation, where she lived, in an attempt to make ICWA inapplicable.
The high court ruled that the tribe still had jurisdiction over her children’s adoption placement because the tribe’s right to its children and the children’s right to grow up American Indian outweighed individual tribal member’s rights to place their children for adoption outside the tribe. Also, allowing voluntary adoptions to bypass ICWA requirements would defeat the purpose of the act.
The Next Chapter
Now that the court has ruled in favor of the Capobiancos, what will the repercussions be for Veronica, Brown and the future of ICWA?
“Whatever the decision is, NICWA is going to be working hard to continue to heal the damage that’s been done to our families in the past and protect the best interest of our children now,” Cross said prior to Tuesday's decision. “This is really just one chapter in a long tragic history of the loss of our children.”