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Lawyers USA’s take: State will now decide who raises Baby Veronica

WASHINGTON – In a contested interstate adoption case that raised complicated questions about the intersection of federal and state law, the U.S. Supreme Court has ruled that the Indian Child Welfare Act does not automatically bar the adoption of an Indian child over the objection of her non-custodial biological father.

The court ruled in Adoptive Couple v. Baby Girl that the act, which sets a high bar for the adoption of Indian children by non-Indian parents in an effort to stem “abusive child welfare practices” that separated Indian families, does not apply to an Indian parent who has never had custody of a child voluntarily and legally put up for adoption by a non-Indian parent with sole custodial rights.

Now it is up to a South Carolina state court to decide who will raise the 3-year-old child known as baby Veronica, who is currently living in Oklahoma with her father Dusten Brown.

Though the court did not reach the constitutional issue of Congress’ authority, nor did it decide who qualifies as a “parent” under the law, “the Supreme Court did everything we asked it to do,” said Lori Alvino McGill, a partner in the Washington office of Latham & Watkins LLP representing the birth mother Christy Maldonado as amicus curiae. “The court addressed the statutory arguments. We always expected that we would end up back in state court, because only the state court can finalize the adoption.”

But opponents of the ruling stressed that the case is far from over.

“The Cherokee Nation will remain involved in this case because we believe it is in Veronica’s best interest to remain with her father and her tribe in Oklahoma,” said Chrissi Nimmo, assistant attorney general for the Cherokee Nation.


‘Vulnerable children’ and ‘policy disagreements’

Brown and Maldonado had planned to marry but the relationship dissolved during her pregnancy. Brown relinquished his parental rights to Maldonado in a text message, and after the child’s birth Maldonado arranged for the baby to be adopted by South Carolina couple Matt and Melanie Capobianco, who took custody of the child.

When Brown learned of the planned adoption, he successfully contested it in South Carolina family court, arguing that the adoption, while legal under South Carolina law, violated the federal statute because a number of its requirements weren’t met, such as providing the father with remedial and rehabilitative services to help him retain custody of the child.

The South Carolina Supreme Court agreed and affirmed, adding that the adoptive couple also failed to show that being with the father would result in “serious emotional or physical damage to the child,” the standard required by the federal act.

In a 5-4 ruling Tuesday, the U.S. Supreme Court reversed and remanded the case back to South Carolina state court. Assuming arguendo that the father was a “parent” under the act, the court found the key provisions of the statute inapplicable in cases in which the biological Indian parent abandoned the child before birth and never had custody at the time the adoption was contested.

“[U]nder the State Supreme Court’s reading, the Act would put certain vulnerable children at a great disadvantage solely because an ancestor — even a remote one — was an Indian,” Justice Samuel A. Alito Jr. wrote for the majority. “As the State Supreme Court read [the statute] a biological Indian father could abandon his child in utero and refuse any support for the birth mother — perhaps contributing to the mother’s decision to put the child up for adoption — and then could play his ICWA trump card at the eleventh hour to override the mother’s decision and the child’s best interests.”

Such an interpretation would discourage adoptions of Indian children and raise equal protection problems, Alito concluded.

In a dissent, Justice Sonia M. Sotomayor said the court’s majority was substituting its views for that of Congress, instead of interpreting the text of the act. “Policy disagreement with Congress’ judgment is not a valid reason for this Court to distort the pro­visions of the Act,” Sotomayor wrote in a dissent joined by Justices Antonin G. Scalia, Ruth Bader Ginsburg and Elena Kagan.


Both sides claim victory

At a press conference Tuesday in Tahlequah, Okla., Cherokee Nation Principal Chief Bill John Baker called the court’s decision at least a partial victory.

“We are thankful that the U.S. Supreme Court upheld the Indian Child Welfare Act, and protected the law vital to survival of Indian country. We are deeply, deeply disappointed that this case was not fully resolved. We believe Veronica Brown’s best interests are served by continuing to love in a loving home with her biological father, Dusten Brown.”

Nimmo said the Cherokee Nation would devote its full resources to assist Brown in the adoption proceedings in South Carolina, which now turn on the best interest of Veronica.

“It has always been the position of the Cherokee Nation that Veronica’s best interests are served by her placement with her father,” Nimmo said. “The Cherokee Nation will remain involved in this case because we believe it is in Veronica’s best interest to remain with her father and her tribe in Oklahoma.”

Kelsi Brown Corkran, counsel in the Washington office of Bancroft PLLC representing the child’s guardian ad litem in the case arguing in support of adoption by the Capobiancos, said she was optimistic that the couple will ultimately prevail.

“It is indisputable, if you look at the Supreme Court decision together with the South Carolina Supreme Court decision, that under federal and state law the adoption should be approved,” Corkran said.

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