Adoptive Couple v. Baby Girl, 570 U.S. 637 (2013), was a decision of the Supreme Court of the United States which held that several sections of the Indian Child Welfare Act (ICWA) do not apply to Native American biological fathers who are not custodians of a Native American child. (hereafter cited as Baby Girl). The court held that the procedures required by the ICWA to end parental rights do not apply when the child has never lived with the father. Additionally, the requirement to make extra efforts to preserve the Native American family also does not apply, nor is the preferred placement of the child in another Native American family required when no other party has formally sought to adopt the child.
In 2009, a couple from South Carolina, Matthew and Melanie Capobianco, sought to adopt a child whose father, Dusten Brown, was an enrolled member of the Cherokee Nation, and whose mother, Christina Maldonado, was predominantly Hispanic. Brown contested the adoption on the grounds that he was not properly notified in accordance with the ICWA, and won both in trial court and on appeal to the South Carolina Supreme Court. In December 2011, Brown was given custody of the child. The case received extensive coverage in the national media, and spurred calls for Congress to review and make amendments to the 1978 law.
In October 2012, the adoptive couple petitioned the Supreme Court of the United States to review the case. In January 2013, the court granted certiorari, and heard the case in April. In June, the Supreme Court issued a 5–4 decision, holding that a non-custodial father did not have rights under the ICWA, and sent the case back to the South Carolina courts for further hearings on the issue. In July 2013, the South Carolina trial court finalized the adoption of the child to the adoptive couple, but this was prohibited in August by the Oklahoma Supreme Court. The stay was lifted in September 2013, and the child was turned over to the Capobiancos the same month.
Background
Indian Child Welfare Act
Prior to the adoption of the ICWA in 1978, Native American children could be forcibly removed from their homes, and placed in either Native American boarding schools or in non-Native American foster and adoptive homes.Troy R. Johnson, The State and the American Indian: Who Gets the Indian Child?, 14 197 (1999); Meg Kinnard, Court agrees with return of Native American girl to Oklahoma father, , July 26, 2012; Zug. Studies conducted in 1969 and 1974 indicated that as many as 25–35% of tribal children were being removed from their homes, and consequently from tribal culture. Testimony in the House Committee for Interior and Insular Affairs showed that in some states, the per capita rate of Native American children in foster care was nearly 16 times higher than the rate for non-Native Americans., , reprinted in 1978 U.S.C.C.A.N. 7530 (1978). In some cases, the Bureau of Indian Affairs (BIA) paid the states to remove tribal children, and to place them with non-Native American families and religious groups.; , 254 (1996); Peter D'errico, Stolen Generations: Adoption as a Weapon, , Jan. 2, 2013; Zug. Congress determined that tribal survival would be threatened if Native American children continued to be removed from Native American homes at this rate, and stated that tribal stability was as important as the best interests of the child., 124 (2d ed. 1999); Zug. One of the factors in this judgment was that, because of the differences in culture, what was in the best interest of a non-Indian child was not necessarily what was in the best interest of an Indian child, especially due to the influence of extended families and tribal relationships., 12–13 (2d ed. 1995) In 1978, the Indian Child Welfare ActThe Indian Child Welfare Act of 1978, Nov. 8, 1978, (codified as amended at . (ICWA) was enacted to protect Indian tribes and their children.; Michael C. Snyder, An Overview of the Indian Child Welfare Act, 7 815, 820 (1995); Marcia Zug, Doing What's Best for the Tribe, , Aug. 23, 2012.
The ICWA applies to "Indian children", defined as "any unmarried person who is under age eighteen and is either: (a) a member of an Indian tribe, or (b) is eligible for membership in an Indian tribe, and is the biological child of a member of an Indian tribe." (1988); Snyder, at 821. Additionally, in the case of a voluntary adoption of an Indian child, the courts must follow specific guidelines for the Indian birth parents to waive their parental rights or have them terminated. The ICWA provides that to relinquish parental rights, an Indian parent must: do so in writing, do so before a judge, who must certify that the parent understood his or her actions, understands spoken English or has a translator available, and a relinquishment may not be executed prior to ten days after the child's birth. (1988); Snyder, at 836–37. The Indian parent may also withdraw their consent to an adoption at any time prior to a final order, or within two years of the final order if their consent was obtained through fraud or under duress. (1988); Snyder, at 837–38. If involuntary termination occurs, it must be "supported by evidence beyond a reasonable doubt". When consent is withdrawn, or if the ICWA procedures are not followed, the Indian child is to be immediately returned to the Indian parent. (1988); Snyder, at 837.
Tribal rights are also covered by the act. (1988); Snyder, at 828. Tribal courts have exclusive jurisdiction for cases arising on Indian reservationsMississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 51–52 (1989); (1988); Snyder, at 826. and concurrent jurisdiction elsewhere. The case may be removed from a state court to a tribal court at the request of the tribe unless one of the Indian child's parents object. (1988). In any case, the tribe has a right to intervene in the proceeding and to act to protect the tribal rights of the child.
Case history
Dusten Brown is a member of the Cherokee Nation,Walter Olson, The Constitutional Flaws of the Indian Child Welfare Act (last visited Aug. 5, 2013). and served in the United States Army at Fort Sill, Oklahoma. Christina Maldonado was a non-Indian single mother of two. Brown and Maldonado became engaged to be married in December 2008, and Maldonado informed Brown that she was pregnant in January 2009.Adoptive Couple v. Baby Girl, 731 S.E.2d 550, 552–53 (S.C. 2012); Supreme Court Agrees to Consider 'Baby Veronica' Case, , Jan. 4, 2013; The Baby Veronica Case: Information and Resources, (last visited Jan. 17, 2013) (hereinafter cited as NICWA). On learning that Maldonado was pregnant, Brown began to press her to go ahead and marry him, and refused to provide any financial support until after the two had married.Baby Girl, 570 U.S. ___, slip op. at 4. In May 2009, Maldonado broke off the engagement by text message, and cut all communications with Brown.Adoptive Couple, 731 S.E.2d at 553. In June, Maldonado sent Brown a text message asking if he would rather pay child support or relinquish his parental rights. Brown responded via text message that he relinquished his rights. No child support order was in place at this time. While laws vary from state to state, it is typically not a possibility for any parent to surrender their parental rights without a court hearing that determines the best interest of the child.Melanie G. McCulley, The Male Abortion: The Putative Father's Right to Terminate His Interests in and Obligations to the Unborn Child, 7 1, 29–30 (1998).
A few months prior to the baby's birth, Maldonado began to work with an adoption attorney to place the child with Matthew Capobianco and Melanie Duncan Capobianco of James Island, South Carolina.Allyson Bird, James Island Family turns over 2-year-old Girl Following Court Order, , Dec. 31, 2011 (hereinafter cited as Bird, James Island); NICWA. The adoptive couple provided financial support to Maldanado during her pregnancy, and attended Baby Girl's birth (in Oklahoma), where the adoptive father cut the umbilical cord.The Supreme Court, 2012 Term — Leading Cases , 127 368 (2013). Although Oklahoma law requires that an Indian tribe be informed if an Indian child is to be adopted, Maldonado's attorney misspelled Brown's name, and provided an incorrect date of birth. As a result, the tribe was not notified about the proposed adoption.Bird, James Island; NICWA. After receiving permission from Oklahoma authorities, based in part on the identification of the child as just Hispanic rather than both Hispanic and Native American, the Capobiancos took the child to South Carolina.
Four months after the birth of the child, Dusten Brown was served with a notice of the proposed adoption.NICWA. Brown signed the document, believing that he was relinquishing rights to Maldonado. Brown tried to retrieve the document, but was unable to. He contacted the Judge Advocate General at Fort Sill for assistance. Seven days after being notified of the proposed adoption by the Capobiancos, Brown obtained a stay of the adoption proceedings under the Servicemembers Civil Relief Act.
Trial court The adoption case was heard in Charleston County Family Court in September 2011.Adoptive Couple, 731 S.E.2d at 556; Kinnard, NICWA. Brown contested the adoption, and the Cherokee Nation intervened as a party in its own right in the case.Adoptive Couple, 731 S.E.2d at 555–56. The court denied the Capobiancos' petition to adopt the child, and ordered that the child be returned to Brown as the biological father. Under South Carolina law, a father's parental rights terminate when he neither provides pre-birth support nor becomes involved with the child shortly after birth. The court noted, however, that the ICWA preempts state law.Harriot McLeod, Native American Roots Trump in Adoption Battle over Toddler, , Jan. 8, 2012. On November 25, 2011, the court issued a ruling, holding that the ICWA applied and was not unconstitutional. The "Existing Indian Family" exception was inapplicable in this case; Brown did not consent to the termination of his parental rights or the adoption of his child, and the Capobiancos had failed to show by clear and convincing evidence that Brown's parental rights should be terminated.
On December 31, 2011, the Capobiancos turned the child over to Brown, in accordance with the trial court order.Jesse J. Holland, Court: Child Isn't Required to go to Indian Father, , June 25, 2013 (archived from original, Nov. 30, 2013); Bird, James Island; Kinnard; NICWA. The Capobiancos then appealed to the Supreme Court of South Carolina.Adoptive Couple v. Baby Girl, 398 S.C. 625; 731 S.E.2d 550 (2012)
State Supreme Court
Chief Justice Jean H. Toal delivered the opinion of the court on July 26, 2012. The five members of the court split 3–2, with Justices Costa M. Pleicones and Donald W. Beatty joining the majority opinion, while Justice John W. Kittredge, joined by Justice Kaye Gorenflo Hearn, dissented.Adoptive Couple, 731 S.E.2d at 550; Kinnard. The opinion decided three issues: First, whether the Capobiancos had improperly removed the child from Oklahoma; second, whether state law or the ICWA is determinative of Brown's status as a parent; and third, whether the Capobiancos met their burden of proof to terminate the parental rights of Brown.
Toal noted that the Capobiancos were correct that the removal of the child from Oklahoma did not create an unsafe environment for the child, but they were incorrect on the legal issue. Had Oklahoma been properly notified that this was an Indian child, the Cherokee Nation would have been alerted, and the child's interests as a member of the tribe would have been protected.Adoptive Couple, 731 S.E.2d at 559; Zug. She noted that at this point, the case was properly before the court, and proceeded to address the second issue.Adoptive Couple, 731 S.E.2d at 559.