Supreme Court rule for couple over baby girl's adoption

[Eugene]

Source: Reuters

Tue Jun 25, 2013 10:53am EDT

(Reuters) - The U.S. Supreme Court on Tuesday threw out a lower court order requiring a South Carolina couple to turn over a young girl they had raised since birth to her biological father simply because he was an American Indian.

By a 5-4 vote, the court ruled in favor of Matt and Melanie Capobianco, who had been caring for the girl they named Veronica until a family court ordered them to turn her over to her biological father Dusten Brown, a member of the Cherokee Nation.

Brown had argued that the Indian Child Welfare Act of 1978, intended to curb practices that caused many Native American children to be separated from their families, entitled him to custody of the girl, who was 3/256th Cherokee.

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But conservative Justice Samuel Alito, writing for the Supreme Court majority, concluded that the law did not bar the termination of Brown's parental rights.

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Read more: http://www.reuters.com/article/2013/06/25/us-usa-court-custody-idUSBRE95O0V420130625

[MrMickeysMom]

1. Then Alito ran around in a circle displaying "Indian dance"!

... All the while, Sammy yelled, "Woo-woo-woo-woo-woo!"

[ButterflyBlood]

2. For once I agree with Alito

The guy's case sounded pretty absurd with how much of a deadbeat he had been even if the girl was full blooded Native American. 3/256 just makes it all the more absurd.

[premium]

3. If I remember correctly,

both the mother and father voluntarily terminated their parental rights, so the Indian Child Welfare Act of 1978 , which was passed to prevent the forceful separation of Native American children from their parents, would not apply in this case.
Now the case goes back to the S.C. lower court to rule whether or not the child goes back to the adoptive parents.
IMO, this was a good ruling and I think the child will go back to the adoptive parents.

[dbackjon]

4. A good ruling

If a parent terminates parental rights, they terminate parental rights. Plain and simple.

[geek tragedy]

5. I don't see injustice where a father renounces his own child and then isn't given

a second spiteful bite at the apple

[Shrike47]

6. It's an interesting opinion, revolving around the words 'continued custody' in the statute.

Nothing to do with the blood quantum of the child in the opinion.

[Princess Turandot]

7. The article didn't mention this: Scalia dissented in the 5-4 vote...

Justice Breyer voted with the majority.

The opinion is here: http://www.supremecourt.gov/opinions/12pdf/12-399_8mj8.pdf

[thefool_wa]

8. Sensationalism Everywhere

This is hardly the attack on the Indian Child Welfare Act of 1978 that its being called elsewhere. It sounds like the welfare of the child was put first as it should be. Plus...3/256ths Cherokee? I have more Cherokee in me and I couldn't even get scholarships.

What needs to be investigated is South Dakota's practice of relocating American Indian babies from troubled homes into white foster and adoptive homes at a rate of close to 60%. By the international definition...that's genocide.

[alp227]

10. Sensationalism? You are showing some too

"What needs to be investigated is South Dakota's practice of relocating American Indian babies from troubled homes into white foster and adoptive homes at a rate of close to 60%. By the international definition...that's genocide."

So should a child be denied a loving home just because the parents are not the same race? Isn't America supposed to be a colorblind nation?

[thefool_wa]

11. Not when it comes to genocidal practice as defined by international treaty.

And the numbers in SD are there. Not sensationalism, reality.

http://www.intrepidreport.com/archives/9840

All I am saying is that this single incident pales by comparison to the ACTUAL attacks on the Indian Child Welfare act, and there are other sites I read that are decrying what the SCOTUS did as an attack, when it really was not. The REAL attack is going on elsewhere, and it doesn't need sensationalized.

[dflprincess]

27. There was a time - not so long ago - that it was not uncommon for Native American children

to be removed from their homes for reasons white kids would not be. The Indian Child Welfare Act was meant to help remedy that though it has some faults as well.

It would not surprise me to hear that that was still going on in South Dakota the racism there has never been well hidden.

I'm really surprised in this case that 3/256 would mean anything. If I recall correctly, most the tribes set their own standards for who qualifies to be enrolled in them and (at least back when I was doing Social Work and working mainly with Native people) most of them set the standard at no less than 1/8 though I am aware of some that have stretched it further.

[Nye Bevan]

21. I don't think "genocide" means what you think it means (nt)

[thefool_wa]

22. Look at the link in the article I posted and check the international convention definition.

But hey, I suppose we could just do nothing.

I'm only saying that there are way more damaging and widespread occurrences of instances that are ACTUAL violations of the ICWA than this sham of a case that the SCOTUS heard.

[Marrah_G]

9. 3/256th ????

How far back do you have to go to come up with that?

[Treant]

13. Seven Generations

With either one of the seventh generation being halfblood or you have one seventh and one eighth generation fullblood ancestors.

There are a theoretically infinite number of solutions involving ancestors with partial-blood that are eight or more generations back as well.

(Most people say eight, but the eighth generation is the child in question and we're discussing how far to go back).

So that's one great-great-great-great-great-grandparent and either a six-times-great-grandparent or a halfblooded five-times-great-grandparent.

[Hekate]

15. Stunning. My family genealogy shows a Native American ancestress somewhere in the late 1600s...

... and it would never occur to me to claim a tribal affiliation because of that. (Especially since Buffy St. Marie wrote a song in the '60s mocking people who claim to "feel" kinship but don't do anything positive for Native American causes.)

I'm glad that child gets to remain with her adoptive mom and dad.

[ExCop-LawStudent]

30. She has a Native American ancestor presently - her father

And there is no guarantee that she will go back to the Copabiancos.

All that SCOTUS did is remand it to SC for further hearings. Since the Copabiancos never adopted the child to begin with, the child could be placed with another Indian family within the tribe. The ICWA gives preference to 1) extended family members, such as the grandparents, 2) other members of the tribe, which currently have over 100 couples cleared for adoption, 3) members of other tribes, and 4) others. I would anticipate that the grandparents would apply to adopt and that the tribe would support that application.

The SC court has to consider the tribes wishes and the best interests of the child is presumed, by law, to be with a tribal member as the adoptive parent.

[Marrah_G]

16. wow...I think it was a stretch for him to try to use that law

I think I would be 1/8th (my great grandmother - by birth- was Blackfoot).

[premium]

18. Also,

both mother and father voluntarily relinquished their parental rights, so he can't go back to court again and say that he didn't agree to give up the child.

[azurnoir]

19. here is more

the father 'gave up' via text message to the mother who did not inform the father when the child was born prior to the child's birth

For those of you unfamiliar with the case, here’s a quick recap on its facts. Bio mom and dad date on and off for years, become engaged, and then the mother becomes pregnant and breaks off the engagement. The father is a member of the Cherokee Nation. Through a text message shortly after the break-up, the father agrees to “relinquish” his rights to the mother. The mother then secretly decides to put the child up for adoption, and through a Christian adoption agency, picks the adoptive parents. She has the child without notifying the father (indeed instructing the hospital to keep her presence there a secret). The adoptive parents reside in South Carolina, and South Carolina law does not grant unmarried fathers in these circumstances a say in the adoption unless they have lived with the child or his or her mother for six months preceding the adoption or they have provided “a reasonable sum” for support or expenses. S.C. Code 1976 § 63-9-310. However, the Indian Child Welfare Act (“ICWA”), which applies here because the child is the biological child of a tribal member and is herself eligible for tribal membership, 25 U.S.C. § 1903(4), recognizes the rights of unmarried fathers as long as their paternity has been acknowledged or established. 25 U.S.C. § 1903(9). Pursuant to ICWA, mother’s attorney attempts to inquire into the father’s membership status through the Cherokee Nation, but the father’s name is spelled wrong and his birth date is listed incorrectly, so the Nation is unable to verify that he is a member. The father is finally served with adoption papers just before he is to be deployed, and at that point begins to contest the proceedings, as does the Cherokee Nation. He eventually ends up with custody of his daughter under rulings of the South Carolina courts. The case is now before the Supreme Court, and the adoptive parents are painting ICWA as racist and claiming that the ruling will bar any interracial adoptions of Native children.

http://www.thefacultylounge.org/2013/06/unmarried-fathers-the-equal-protection-clause.html

[premium]

20. Interesting.

Thanks for the info. What the mother did is morally wrong, but, unfortunately, not illegal.
Sounds like S.C. law needs to be changed.
I don't think this is going to change the fact that the child is probably going to go back to the adoptive parents.

[RILib]

23. not morally wrong

"Through a text message shortly after the break-up, the father agrees to “relinquish” his rights to the mother."

Then he is out of the picture permanently. He gave up his rights and never acted as a Dad. Then the kid has a happy home and suddenly he decides well, I guess I'll take her back.

[politicat]

24. He didn't agree to put the child up for adoption. The biological mother concealed that.

And he was deployed, which changes custody agreements anyway.

You can't relinquish paternal rights by text message -- texts are not legal documents. (And that's good, because if every booty-call and drunk-dial was legally binding, our courts would be permanently grid-locked.)

This was on Slate last year -- I think the biological father has a superior argument (and that the USSC blew it today), especially since the little girl has been with him for a couple of years now, too.
http://www.slate.com/articles/double_x/doublex/2012/08/baby_veronica_returns_to_her_biological_father_affirming_icwa_south_carolina_s_supreme_court_made_the_right_decision_.html

Ideally, the adoptive parents and the biological father would agree to co-parent that little girl in a mutually agreeable location, but I think that's expecting better behavior than is likely.

[RILib]

28. conceal?

She didn't have to "conceal." It was no longer any of his business.

Tell the kid when she's 21 that that text message isn't legally binding. See how she reacts.

The only reason the girl has been with him for a couple of years is that the lower court blew it. Possession isn't nine tenths of the law when it comes to children.

[politicat]

29. It was his business. his child.

Broken relationships suck, but happen, and there was incredibly poor communication (on both sides, true.)

As yes, actually, Native Americans DO have the right to have first access to their children, because denying them access to their own children is a form of genocide. It disrupts the culture and the community. Being NA is about more than Dawes roles and blood quantum.

You're making just as much of an argument for child as possession.

[freedom fighter jh]

14. At least eight generations.

256 is 2 to the 8th power. So each eighth-generation ancestor accounts for 1/256 of your ancestry, so the child could have had 3 eighth-generation ancestors who were Native American -- or maybe 6 who were ninth generation, or some combination thereof, or something even more complicated going back farther.

[happyslug]

12. Here is the actual opinion, Scalia, and all of the female Justices dissented.

http://www.supremecourt.gov/opinions/12pdf/12-399_8mj8.pdf

ALITO, J., delivered the opinion of the Court, in which ROBERTS, C. J., and KENNEDY, THOMAS, and BREYER, JJ., joined.

THOMAS, J., and BREYER, J., filed concurring opinions.

SCALIA, J., filed a dissenting opinion,

SOTOMAYOR, J., filed a dissenting opinion, in which GINSBURG and KAGAN, JJ., joined, and in which SCALIA, J., joined in part.

Scalia agreed with Sotomayor, but wanted to add a comment that the phase "Continued Custody" is not a term limited to past custody but can include custody in the future. Sotomayor seems to have wanted to avoid that comment and thus kept it out of her opinion for such an addition would be more dicta then actual opinion (Dicta is a statement as to the law made by a judge in a case where that ruling was NOT needed to decide the case).

The following is from Sotomayor's opinion dissenting opinion, it is an open attack on the majority:

A casual reader of the Court’s opinion could be forgiven for thinking this an easy case, one in which the text of the applicable statute clearly points the way to the only sensible result. In truth, however, the path from the text of the Indian Child Welfare Act of 1978 (ICWA) to the result the Court reaches is anything but clear, and its result any­ thing but right.

The reader’s first clue that the majority’s supposedly straightforward reasoning is flawed is that not all Mem­bers who adopt its interpretation believe it is compelled by the text of the statute, see ante, at 1 (THOMAS, J., concur­ring); nor are they all willing to accept the consequences it will necessarily have beyond the specific factual scenario confronted here, see ante, at 1 (BREYER, J., concurring). The second clue is that the majority begins its analysis by plucking out of context a single phrase from the last clause of the last subsection of the relevant provision, and then builds its entire argument upon it. That is not how we ordinarily read statutes. The third clue is that the majority openly professes its aversion to Congress’ explicitly stated purpose in enacting the statute. The majority expresses concern that reading the Act to mean what it says will make it more difficult to place Indian children in adoptive homes, see ante, at 14, 16, but the Congress that enacted the statute announced its intent to stop “an alarmingly high percentage of Indian families [from being] broken up” by, among other things, a trend of “placing Indian children in non-Indian . . . adoptive homes.” 25 U. S. C. §1901(4). Policy disagreement with Congress’ judgment is not a valid reason for this Court to distort the pro­visions of the Act. Unlike the majority, I cannot adopt a reading of ICWA that is contrary to both its text and its stated purpose. I respectfully dissent.

[Hekate]

17. That does place a different spin on things.

hmmm

[ExCop-LawStudent]

25. Many of the supposed facts being stated here are incorrect

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.

[StevieM]

26. Thank you for providing the details concerning this case. There is a lot of misinformation about

what happened. I hope people read this and understand that the father did not terminate his parental rights, or consent to the adoption.