Indian Child Welfare Act and Adoption Tragedy

NPR recently reported on The Indian Child Welfare Act, a piece of legislation that has landed at the center of a contentious U.S. Supreme Court case. The NPR story is entitled, “Adoption Case Brings Rare Family Law Dispute to High Court.

The Indian Child Welfare Act, was passed in 1978 by Congress to prevent  the improper removal of Native American children from their families.   Ironically, in this case, a little girl was forcefully removed from her loving parents because of the Act.

Dusten Brown, the biological father of the child, and two percent Cherokee, expressly told his then-pregnant ex-fiance, Christy Maldonado, that he was giving up his custodial rights and would not be providing financial support for the child.  Deciding that she could not support the child herself, Ms. Maldonado decided to put the child up for adoption.

Ms. Maldonado notified the Cherokee Nation of her plans, “giving them a chance to intervene under the Indian Child Welfare Act,” but the tribe did not object to the adoption because they did not find any record of Mr. Brown as a tribal member.  She then found a couple, the Capobiancos, in South Carolina, who agreed to an open adoption.   The couple helped support Ms. Maldonado and were present during the child’s birth.

Four months after the child’s birth, when the adoption was almost final, Mr. Brown was notified of the adoption.  He initially signed off, but filed a formal objection a few days later, invoking the Indian Child Welfare Act.  He had wanted Ms. Maldonado to keep the child so he could “come visit and stuff.”

The South Carolina courts held that the federal Indian Child Welfare Act preempted state law and ordered the Capobiancos to give up custody of their two-year-old daughter to Mr. Brown.  The Capobiancos appealed to the Supreme Court of the United States, asking the Court to represent the best interests of the child.

A child forms an attachment to the people who have loved and raised her since birth, and this is her first social relationship. The security of this very basic relationship was destroyed when this little girl’s biological father invoked the Indian Child Welfare Act to “recover” his daughter, when he had been the one to reject custody of her in the first place.

Mr. Brown had nine months to consider his custody rights before his daughter was born, before his indecisiveness and irresponsibility could substantially affect the welfare of the child, but he did not.  He decided that he did want custody, after all, and disregarding the anxiety and trauma that his daughter may feel, he tore a toddler away from the loving parents who had been raising her since birth.

Instead of protecting her happiness and best interests, Mr. Brown seems to be serving his own interests by exploiting existing federal law.  There are many facets to this difficult case that must be considered.  But above all, the welfare and best interests of the individual child should be the Court’s priority when deciding the fate of this little girl.

Esther Kim

About Esther Kim

Esther Kim is a third year student at the University of Houston Law Center. She graduate from Wesleyan University in 2007 with a B.A. in Liberal Arts with a focus in Chinese Language and Literature. As an undergraduate, she worked one summer at the Citizens' Committee for Children, New York, a child advocacy organization, where she developed an interest in children's rights, community after-school resources, and immigration. Esther has recently been selected to be an Equal Justice Works Fellow, sponsored by Texas Access to Justice Foundation, at Lone Star Legal Aid, where she will be working closely with Asian victims of domestic violence in Harris and Fort Bend Counties.

3 thoughts on “Indian Child Welfare Act and Adoption Tragedy

  1. April 19, 2013 at 10:25 AM

    Great job Esther! This case is frustrating to me because I feel ICWA is still important for protecting Native children who have had a relationship with their families and where there are tribal members who could care for them.

    However, this man obviously didn’t want custody and he signed away his rights. He just wanted to be able to keep in touch with the kid. Mr. Brown is being selfish. Veronica deserves a better father, which she could have in Mr. Capobianco.

    1. Bob Cooper
      April 27, 2013 at 11:42 PM

      Difficult to reply to an article that has chosen to leave so much out of the story. I do not attempt to react to the circumstances of the broken relationship of these two parents nor the reasons for the mother to use such deceptive tactics when she proposed that custody be given to her in exchange for no child support. Not that it would have mattered since no family court in this country would have allowed such an agreement to be enforced. What bothers me is that everyone seems so willing to condemn this man without ever having a full understanding of all the facts. What really bothers me is when adoption attorneys throw unwed fathers in front of a moving bus so that they can ‘streamline’ the adoption process. I have always felt that parents should leave behind the hate or mistrust that they might have for each other in deference for the love that both of them have for their child.

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