Supreme Court rules for adoptive parents in Baby Veronica case

[East Coast Pirate]

WASHINGTON -- A sharply divided Supreme Court sided with a 3-year-old girl's adoptive parents over the legal claim of her father Tuesday in a case that revolved around the child's 1% Cherokee blood.

In doing so, the justices expressed skepticism about a 1978 federal law that's intended to prevent the breakup of Native American families -- but in this case may have created one between father and daughter that barely existed originally.

While four justices from both sides of the ideological spectrum found no way to deny the father his rights under the Indian Child Welfare Act, five others -- including Chief Justice John Roberts, an adoptive father himself -- said the adoptive parents were the consistently reliable adults in "Baby Veronica's" life. They ordered the case returned to South Carolina courts "for further proceedings not inconsistent with this opinion."

That the nation's highest court was playing King Solomon in a child custody dispute was unusual to begin with. It had jurisdiction because Veronica is 3/256th Cherokee, and the law passed by Congress 35 years ago was intended to prevent the involuntary breakup of Native American families and tribes.

More: http://www.usatoday.com/story/news/nation/2013/06/25/supreme-court-baby-veronica-custody-native-american/2382699/

[badtoworse]

1. Tough call, but I think the SCOTUS got it right.

I don't like the law - it does seem racially discriminatory.

[virgogal]

2. + 1

[ExCop-LawStudent]

3. Nope

The law is citizenship based, not racially based.

How would you feel if a child with 3/256ths American blood, whose parents lived overseas but maintained their U.S. citizenship, was adopted out over the American parent's protests?

[badtoworse]

4. Read the story - that's not what happened

The child's mother put the child up for adoption and the father, who did not support the mother during her pregnancy, initially agreed to it. He only objected after the adoption took place.

[ExCop-LawStudent]

5. Reposting my answer to another thread - the mother concealed the adoption from him

First, for consent to terminate rights of an Indian parent, the rights have to be terminated in the presence of a judge who must certify that the parent is aware of the consequences of the action. The SC courts held that it was undisputed that the father did not intend to terminate his parental rights.

Second, the birth mother cut off communications with the father and did not inform him of the birth, nor of her intent to place the child up for adoption. The father had wanted to move up their wedding date and get married. The birth mother also did not respond to the child's Indian grandmother who had money for her and handmade gifts for the child.

Third, both the birth mother and the adoptive parents tried to evade the law by providing an incorrect name and date of birth to the tribe, which must be notified under the ICWA. The birth mother stated that she did not want the tribe involved, contrary to the ICWA requirements.

Fourth, the birth mother misled the state by intentionally omitting the child's Indian heritage before the child was taken from Oklahoma. Oklahoma authorities make sure that a tribe is properly notified of any such removals. The birth mother said that telling the truth would just complicate the adoption.

Fifth, the adoptive parents intentionally waited to serve the father until just days before he was to be deployed with his Army unit to Iraq. The adoptive parents had been made aware of the ICWA, and according to the SC courts, had ignored the law.

Sixth, on being informed of the potential adoption, the father immediately sought to prevent it, filing legal challenges eight days after being informed.

Seventh, this is not a "race-based" law, it is a citizenship based law. Each tribe has the right to determine its own standards for citizenship, and the Cherokee Nation bases it on direct descent from a member on the Dawes Roll. Other tribes have a "blood quantum" requirement, from 1/2 (Mississippi Choctaw, White Mountain Apache), to 1/4 (Kiowa, Blackfeet, Hopi), to 1/8 (Comanche, Ft Sill Apache), to 1/16 (Caddo, NC Cherokee), to lineal descent (Cherokee Nation, Osage, Seminole, Shawnee). This is no different than if a child with American citizenship but only 3/256 American blood was being adopted against her American parent's will in a foreign country. You see, U.S. citizenship is also based on descent if born outside of the U.S.

[Gravitycollapse]

7. How far is the child removed from the tribe with 3/256th heritage?

My guess is extremely far removed.

[pnwmom]

9. I think it's ridiculous that 1% of her ancestry is enough to make her bound by Cherokee law. n/t

[badtoworse]

18. From the USA Today article

"He said the father had not supported the mother during pregnancy, agreed to give up parental rights in a text message, and changed his mind much later."

http://www.usatoday.com/story/news/nation/2013/06/25/supreme-court-baby-veronica-custody-native-american/2382699/

If you have other sources of information, please post some links.

[ExCop-LawStudent]

20. Sure, here you go

http://www.nicwa.org/babyveronica/ - multiple links on this page to facts on the case
http://turtletalk.wordpress.com/tag/adoptive-couple-v-baby-girl/ - five pages of posts and links to articles on the case
http://indiancountrytodaymedianetwork.com/2013/06/12/fight-baby-veronica-part-4-149873
http://indiancountrytodaymedianetwork.com/2013/06/12/fight-baby-veronica-part-4-149873] - Part 4 of a 4-part series on the case, with links to parts 1-3
http://www.politico.com/story/2013/04/the-ugly-side-of-the-adoption-industry-90091.html
http://www.theatlantic.com/national/archive/2013/04/indian-affairs-adoption-and-race-the-baby-veronica-case-comes-to-washington/274758/
http://truth-out.org/news/item/13749-media-failures-lead-to-flawed-understandings-in-cherokee-adoption-case

[badtoworse]

21. There seems to be a disagreement about the facts of the case

I haven't read the court decision, but if the reports quoting Alito are accurate, the father abandoned the child before she was born and consented to the adoption, albeit not in the venue prescribed by the statute. Importantly, the assertion that he only became aware of the adoption after it took place is, apparently, untrue.

Here's another report that confirms the USA Today version.

http://news.msn.com/us/court-child-isnt-required-to-go-to-biological-father?ocid=ansnews11

I would assume that the facts of the case presented to the SCOTUS were accurate. I would also assume that the news reports quoted Alito accurately. Based on that I believe the father gave up on the child before she was born and shouldn't be able to change his mind after the fact.

[ExCop-LawStudent]

22. Exactly what adoption is that?

The Capobiancos never adopted the child. They lost at the first court hearing.

That's a fact, and one most of the media has gotten wrong over and over.

[badtoworse]

23. Doesn't change my opinion

The adoption was well underway by the time he changed his mind. He still shouldn't get to change his mind.

[ExCop-LawStudent]

24. They shouldn't have hidden it from him

[badtoworse]

25. Here's my bottom line

1.) He didn't support the mother during her pregnancy and apparently wasn't there when the child was born.
2.) The mother told him she was going to put the child up for adoption and he consented, apparently in a text message.

These are the actions of a selfish dirtbag in my opinion and as far as I'm concerned, he's done at this point. "Hidden it from him"? That's nothing but spin. She told him what she wanted to do; he agreed; he wasn't around when she followed through, so he didn't find out until the process was underway. That's lack of responsibility on his part; not hiding things.

Sorry, I have no sympathy for the guy.

[ExCop-LawStudent]

26. Except your facts are wrong.

Especially number two. The birth mother did not tell him that the child was being put up for adoption. She went out of her way to conceal it from him. The Capobiancos did the same. They waited until just before he was to deploy to Iraq to notify him, and he immediately filed to contest it. That's not my opinion, that is the opinion of the trial court and the SC Supreme Court.

"Mother never informed Father that she intended to place the baby up for adoption." Adoptive Couple v. Baby Girl, 731 S.E.2d 550, 553 (S.C. 2012).

"Initially the birth mother did not wish to identify the father, said she wanted to keep things low-key as possible for the (Appellants), because he's registered in the Cherokee tribe. It was determined that naming him would be detrimental to the adoption." Id. at 554 (editing in original).

"Mother signed the necessary documentation, which reported Baby Girl's ethnicity as "Hispanic" instead of "Native American." After Baby Girl was discharged from the hospital, Appellants remained in Oklahoma with Baby Girl for approximately eight days until they received ICPC approval, at which point they took Baby Girl to South Carolina. According to the testimony of Tiffany Dunaway, a Child Welfare Specialist with the Cherokee Nation, had the Cherokee Nation known about Baby Girl's Native American heritage, Appellants would not have been able to remove Baby Girl from Oklahoma." Id. at 554-55.

"Appellants filed the adoption action in South Carolina on September 18, 2009, three days after Baby Girl's birth, but did not serve or otherwise notify Father of the adoption action until January 6, 2010, approximately four months after Baby Girl was born and days before Father was scheduled to deploy to Iraq." Id. at 555.

All they had to do is follow the rules, and they didn't, even though they were aware of the requirements of the law. Instead, they hid what they were doing, and when caught, got a PR specialist to launch Facebook pages, websites, etc., and to flood the media with inaccurate and false information.

[badtoworse]

30. I'm reacting to what I've read in the media and I'll concede the media could have it wrong.

It surely wouldn't be the first time, if that's the case here.

It's hard for me to believe the SCOTUS would issue a ruling where the actual facts of the case are still in dispute. If I'm wrong about the facts, I likely would change my opinion based on different facts. I don't have the time or the resources to investigate and retry the case online, so I think we're about done with this one.

In general, I believe that both parents should have to agree on whether a child gets adopted. I also believe that once that decision is made, it should be irrevocable and unappealable. It gets really complicated, though, if they don't agree. I think that many times, the father / husband gets screwed in matters of family and divorce law, so I usually find myself on the guy's side.

BTW, welcome to DU.

[Gravitycollapse]

6. 3/256? That's about 1.18%. How does that even count as anything?

[ExCop-LawStudent]

8. It still qualifies the child

for tribal citizenship, just as it would qualify a child for U.S. citizenship if born overseas to a parent which was born overseas, etc.

Or are you saying that you should have a certain amount of American blood to be a U.S. citizen?

[pnwmom]

10. Well, she's 99% other, which should qualify her for protection under regular US adoption laws. n/t

[Gravitycollapse]

11. No, but I'm pretty sure that's what you're saying.

As already stated, the child is 99.82% not part of that tribe. That's a pretty steep alternative. This father is merely arguing a technicality because it caters to his specific needs.

[ExCop-LawStudent]

12. So would you deny citizenship to a child born abroad to a US parent?

The adoptive parents could have avoided this if they had complied with the law to start with.

Plus, based on the decision, there is no guarantee that they will get the child. The tribe has intervened and all it will take is a prospective Native American couple to adopt to derail their attempt to adopt.

[Gravitycollapse]

13. I agree with giving US citizenship to a child based either on the citizenship of the parents.

Or on the basis that the Child was born on American soil.

At 3/256th, the law in question becomes truly arbitrary. The tribe intervening should be looked upon with scorn and derision.

[ExCop-LawStudent]

14. Which is why the law was enacted

To protect both the child and the tribe.

The tribe is looking out for the interests of its citizens against state governments which have consistently abused Indian families.

[Gravitycollapse]

15. The tribe almost certainly couldn't give a shit what happens to the child.

And that much is obvious in the fact that it is willing to rip the child from her parents arms.

Blood relation is about the basest form of identity possible. The goal of the law is to protect the tribes from being divided and conquered. Not to steal away a child from her adoptive parents because she is legally 3/256th Cherokee. That's fucking ludicrous.

[ExCop-LawStudent]

16. The tribe cares more about her than these white people (the adoptive couple) do

Last edited Thu Jun 27, 2013, 04:49 PM - Edit history (1)

Plus, she has no adoptive parents. The Copabiancos never adopted her.

Had they not intended to deceive the father and the tribe, they wouldn't have put the child in the situation in the first place.

[Gravitycollapse]

17. What a pile of horseshit.

Any deception on the parents part was almost certainly born out of the fact that the father and the tribe are using such weaselly, unethical means to steal their child away. It's fucking despicable.

[ExCop-LawStudent]

19. I agree your post is a pile

It is despicable what the Copabiancos are doing.

It follows a long history of what the white people of this nation have done to the tribes and individual Indians. Especially to our children. Taking Indian children out of their homes and shipping them hundreds of miles away to Indian schools where they weren't allowed to speak there own language, or to worship in their own way. Coming in and taking children away from their families so white families could adopt them, and "save" them.

You make me sick.

[Orrex]

27. I'm trying to understand something about this

Is there a threshold to be considered, or is one drop of blood sufficient? If the child were 1/4096, would the same reasoning apply?

Also, if the father had indeed knowingly and willingly disowned the child, would he retain any authority in determining the child's upbringing? Can the tribe intercede regardless of the father's wishes in this regard?

I'm not trying to be smartass about this; I know little about this case and nothing about tribal law, so I'm just trying to get a handle on things.


Thanks.

[ExCop-LawStudent]

28. Tribal citizenship

No there is no "threshold" so long as the child is eligible for citizenship in the tribe. For example, if the tribe requires 1/4 blood, a child with 1/8 blood would not be covered.

If the tribe, like the United States for children born overseas to a U.S. citizen, uses lineal descent, then all it takes is one drop. Please note that this one drop that the Cherokee Nation uses is the same as what the American government uses for children born oversees. Both the tribe and the U.S. require that the parent be a citizen, but have no blood quantum requirement.

The father had not knowingly disowned the child, and certainly not legally. The birth mother and the adoptive couple went out of their way to conceal it from him. That's not my opinion, that is the opinion of the lower courts that heard the case.

The tribe can intercede with or without the parents permission, just as the U.S. government can intercede to defend the rights of its citizens.

Another thing to remember. The Indians are tribal members first, U.S. citizens second. That is because, unlike everyone else born in the U.S., Indians were only granted citizenship by an act of Congress in 1924. See 43 Stat. 253, June 2, 1924, codified as amended at 8 U.S.C.A. 1401(b). The right of Indians to vote was still being argued as late as 1975. "In 1924, Congress granted citizenship to all American Indians who had not previously enjoyed that status, including many Oglala Sioux. At that time certainly, if not before, Indians became endowed with the fundamental rights of national citizenship, including the right to vote." Means v. Wilson, 522 F.2d 833, 839 (8th Cir. 1975). The U.S. citizenship can easily be taken away by Congress, and the tribes are well aware of this, although none think it will happen.

That is one of the reasons that tribes will fight tooth and nail to protect its children.

[Orrex]

31. Thank you for the detailed and thoughtful answer

[rebecca_herman]

42. except, what rights would the US actually have when American parents live out of country permanently

The Hague Convention for child custody refers to a child's "habitual residence" doesn't it? So a child is born overseas to parents living permanently in another country, even if the child was a US citizen by birth due to the status of one or both parents - does the US actually get a say in custody/adoption? I was under the impression that is based on residency.

[ExCop-LawStudent]

43. The US is a Contracting State under the Hague Convention

for Protection of Children and Co-Operation in Respect of Intercountry Adoption. Under Art. 26(2) & (3) the US would have the ability to have a say in the adoption.

In any event, the public in the US would demand some action in such an event.

[rebecca_herman]

44. I read it, but I'm not seeing where it applies to the situation I described?

At the beginning it says:

"The Convention shall apply where a child habitually resident in one Contracting State ("the State of origin&quot has been, is being, or is to be moved to another Contracting State ("the receiving State&quot either after his or her adoption in the State of origin by spouses or a person habitually resident in the receiving State, or for the purposes of such an adoption in the receiving State or in the State of origin. "

Doesn't sound like it would apply if the child with one US parent was born outside the US, never lived in any other country besides the country of birth, and was being adopted in the country of birth. So if an American man moved to Canada and had a relationship with a Canadian woman, and the child was born in Canada and the mother sought an adoption in Canada, it sounds like Canada would decide since that would be the hypothetical child's habitual residence as well the place where the child would be adopted.

Sounds like it would only apply if someone snatched the child from the United States where they had been living then fled to another country for purpose of adoption. Unless I am missing something it only seems to apply when the country where the child has been living and the country where the potential adoptive parents live are different countries.

[ExCop-LawStudent]

45. Sec. 26(2) & (3) state:

(2) In the case of an adoption having the effect of terminating a pre-existing legal parent-child relationship, the child shall enjoy in the receiving State, and in any other Contracting State where the adoption is recognised, rights equivalent to those resulting from adoptions having this effect in each such State.

(3) The preceding paragraphs shall not prejudice the application of any provision more favourable for the child, in force in the Contracting State which recognises the adoption.

[cali]

29. that's so ridiculous that my jaw dropped. and offensive.

so a white couple who have loved and cared for this child for much of her brief life don't care for her as much as the tribe, which doesn't even know her? You have a strange definition of caring.

And I don't think the court got it right. I narrowly come down on the side of the father and the tribe, but it's heartbreaking on all sides.

Ugh to your bigoted post.

[East Coast Pirate]

33. You just lost the debate with that racist statement.

The tribe cares more about her than white people do.

I'll regard anything you say as suspect after that mindless comment.

[ExCop-LawStudent]

34. I didn't see anyone object to this statement

"the father and the tribe are using such weaselly, unethical means to steal their child away. It's fucking despicable."

It seems that it is OK to denigrate the tribe and the father, but if you say something about "those white people" it's terrible. I didn't see you object to describing the tribe as weaselly and unethical thieves.

[East Coast Pirate]

36. Because two wrongs always make a right.

I didn't see those comments. Links? Did you alert those posts?

[ExCop-LawStudent]

37. No, I did not

alert the post, not because it wasn't offensive, but because I don't like to kill a post or comment unless it really way over the top.

It was reply #17, just above. Look, I probably should have phrased it more carefully, like the "adoptive couple" instead of "those white people", but it certainly isn't as offensive as "The tribe almost certainly couldn't give a shit what happens to the child." (reply #15), which is what I was replying to.

[jwirr]

32. I am not taking sides on this but I think that a little history regarding the reasons behind this

law might be valuable. Years ago it was not unusual for Native American children to be taken away to government schools even to the point that they were more or less kidnapped. Another thing that happened was that children were actually stolen by some family who wanted to "adopt" them. My family in South Dakota took a Native American girl that way. These kind of happenings are why the law was enacted in the first place. It gave Native Amerivan's some control over their own children.

This case is different in that this child was placed in the couples home by a court. But there is a real problem with the fact that the father was never told he had a child until they tried to adopt the girl. I would think that the previous courts that placed her should have had the obligation of contacting the father.

Our family had a chance to adopt a member of my sil's family but choose not to when we found out that the foster family wanted to adopt him. This is a very emotional issue and there is no one size fits all cases.

[ExCop-LawStudent]

35. Well put.

"Years ago it was not unusual for Native American children to be taken away to government schools even to the point that they were more or less kidnapped."

My grandfather was one of those that was sent to an Indian school against his will.

[jwirr]

40. My sil has family that were treated similairly. The history is there for anyone to see. Do you know

if this decision will turn back time to those days or did they leave any power in the hands of the tribes? The tribal system is not always to best system but it needs to be able to protect its people from further harm.

[ExCop-LawStudent]

41. I don't know

It appears as if they only ruled on the father's right to contest the adoption, basically by standing the law on its head.

What it looks like is that the right of the tribe to intervene is still valid, as is the preference standards for 1) extended family members, 2) other tribal members, 3) other Indians, and only then 4) all others. The tribe could formally present options that are higher priority, such as Brown's parents, to adopt the child.

[Xithras]

38. This is a horrific case.

Seriously, it's one thing to adopt an unwanted child, but it's unconscionable for an adoptive parent to actually fight to take a child away from a good, loving home simply because they have some legal papers saying they have a "right" to do so. Once they found out the true story behind what happened, they should have done the right thing. Moments like this one, however, make me wish I wasn't an atheist so I could at least look forward to them burning in hell for this kind of evil.

First, the argument that the father didn't support the mother during the pregnancy is irrelevant. Legally, a man is under no obligation to support anyone other than his children and the spouse he is married to. It's certainly BETTER if the father does offer support to the mother, but without any other kind of relationship between them, there is no legal expectation of support. As the father, he has to support the CHILD. The lack of a relationship between the mother and father has no bearing on his paternal rights.

Second, a lot of news media (and posters in this thread) are incorrectly stating that he agreed to give the child up and then "changed his mind". He knew that he was being deployed overseas and agreed to give the mother full custody. THAT'S IT. There is a HUGE difference between agreeing to give the other parent full custody, and agreeing to have your parental rights terminated. The two legal concepts are miles apart in their intent and scope. He never knowingly consented to an adoption, and immediately moved to block the adoption the moment he found out about it. He didn't "change his mind", the mother changed what she wanted.

Third, the idea of a "blood quantum" is widely regarded as a racist relic that was originally invented by southern American states to restrict the rights of Native Americans. It doesn't matter if he was 1/4, or 1/200th, or 1/1000th. He was a registered member of the tribe, living on tribal land, and participating as a member of the tribe. Saying that he "isn't really Native" is like saying that Obama "isn't really black". It doesn't matter WHAT your opinion is. If he identifies as black or Native American, that's his call, not yours. Both men have the ancestry to legitimately make the claim, and it's racist as fuck to claim otherwise. As in "You make Paula Deen look like a flag bearer for the Rainbow Coalition" racist.

As the husband of a tribally registered mixed Native American woman, and the father of three tribally registered mixed Native American children, I found both the judgment of the court and some of the opinions in this thread to be pretty sickening. The guy did absolutely nothing wrong, was never accused of any crime, or of abuse, or of neglect, was deceived out of his right to raise his own beautiful daughter by her mother, and is now being permanently stripped of his right to raise his child because he isn't "Indian enough" to make a bunch of pompous assholes happy. And for what? So that a pair of childless narcissists can fool themselves into believing that they're somehow saving her from the deprivations of being born poor and brown? To hell with them.

If I were the father, this would only be the beginning of my war.

[ExCop-LawStudent]

39. Exactly right, plus he was at a distinct disadvantage

You have on one hand an Indian who does not have any real education to speak of, who went into the Army to better himself. He's now working as a security guard.

On the other side you have a highly educated white couple (the wife has a PhD), who, after losing in the trial and state supreme court, immediately began a vicious media campaign to "Save Baby Veronica" from the nasty Indians. How much more racist could you get?

This is no different from the line of thought of the Indian Schools - whose motto was "kill the Indian and save the man."

In addition, the idea that the Capobiancos did not know what they were doing is ludicrous. Are you really trying to tell us that a PhD advised by adoption attorneys did not know that they were supposed to notify the tribe and the father? Why did they wait until just before Brown was to deploy to Iraq to notify him?

He immediately started fighting the adoption on being notified, and as Xithras noted above, he knew he was being deployed. What was he supposed to do, take the child with him to Iraq?

Thankfully, the U.S. Supreme Court did not rule that the Capobiancos were to receive custody. This means that the tribe will be able to help Brown. They can formally present other tribal members to adopt the child, including Brown's parents. This will mean that the South Carolina courts will have to consider the ICWA preferences, which put the Capobiancos way down the list.