Adoptive Couple v. B aby Girl

1. Adoptive Couple v. Baby Girl Anita Fineday Managing Director CFP-ICWP

2. Adoptive Couple v. Baby GirlDecided June 25, 2013570 U.S. ___ (2013)a.k.a. The Baby Veronica case

3. The Facts • Dusten Brown is a member of the Cherokee Nation • Dusten and Birth Mother had on and off relationship for years • Became engaged • Birth mother became pregnant • Dusten in Army stationed at Fort Sill

4. The Facts • Dusten wants to move up wedding date • Birth Mother breaks off engagement and cuts off contact with Dusten • Dusten has one child already and Birth Mother has three via other relationships • Birth mother text Dusten: “Pay child support or relinquish parental rights?”

5. The Facts • Dusten thinks relinquishing rights to Birth Mother (like sole custody, not tpr) • Dusten thinks may be path to reuniting so agrees • Birth mother makes arrangements for Matt & Melanie Capobianco to adopt baby • Capobiancos present when baby born (9/15/09) • Three days later Capobiancos take baby to South Carolina

6. Christmas with Capobiancos

7. Veronica More Recently with Father and his Wife

8. The Facts • Four months later, Capobiancos’ attorney files adoption petition • Days before about to ship out, Dusten presented with papers • Signs thinking only acknowledging service, not relinquishment • Within a week, Dusten hires attorney and stay of adoption issued

9. Contact with Cherokee Nation • Birth mother tells Capobiancos’ attorney of Dusten’s tribal membership • Attorney sends notice with incorrect first name spelling and birth date • Cherokee says Baby not eligible • But also says determination could be different if other information is provided • Later in case, Baby is enrolled and Nation intervenes

10. South Carolina Court Proceedings • Family court finds ICWA applies • Finds that petitioners didn’t meet heightened burdens of proof & didn’t comply with “active efforts” • Finds Dusten to be a fit parent • Denies petition; upheld on appeal • Veronica goes home with Dusten (12/31/11 - 27 mths old)

11. Key factor: Differing state laws for birth fathers • Some states (CO, ME, MN?) say parental rights exist from birth • Birth parents have right to notice and to object to adoption • Must have t.p.r. & best interest finding • South Carolina and other states say birth parent must make affirmative action to obtain parental rights • Dusten failed to take steps so no right to object • No “legal” custody

12. “Continued custody” Majority held ICWA doesn’t bar termination of Dusten’s parental rights. 3 rulings: • Section 1912(f) bars TPR unless a showing of serious harm from parent’s “continued custody” • Does not apply when the parent never had physical or legal custody of child

13. “Continued custody” • Section 1912(d) requiring “active efforts” to prevent “break up of Indian family” does not apply when parent abandons child and never had custody. • Section 1915(a) establishing placement preferences does not bar non-Indians from adopting Indian child when no other eligible candidates have applied

14. Summary of Majority Ruling “In sum, when, as here, the adoption of an Indian child is voluntarily and lawfully initiated by a non-Indian parent with sole custodial rights, the ICWA’s primary goal of preventing the unwarranted removal of Indian children and the dissolution of Indian families is not implicated.” Associate Justice Samuel Alito

15. ICWA’s Constitutionality Upheld • Justice Thomas all alone • Narrow reading that Indian Commerce Clause doesn’t authorize ICWA • Not commerce • Not regulating tribes per se • Goes along with majority based on the doctrine of “constitutional avoidance”

16. Clues to Unclear and Incorrect Result • Not all majority agree or willing to accept consequences (Breyer) • Need to pick “continued custody” out of context and work backwards • Majority’s aversion to Congressional intent of ICWA Associate Justice Sonia Sotomayor

17. Breyer’s Concerns—but goes along anyway • Majority ruling could exclude fit fathers • May be circumstances dictating different outcome--father is deceived, pays support, is prevented, etc. • “Other statutory provisions may prove relevant” to case’s outcome

18. Back to South Carolina • USSC remands to SC Supreme Court • SC Supreme Court remands to Family Court • As if ruling never happened? • Two adoption petitions have been filed • “Best interest” of the child standard applied

19. What is in Veronica’s best interest? • Dusten is a fit parent • Child with Capobiancos for 27 months • Guardian ad litem supported adoption • Child with her father for 1 ½ years at Cherokee