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.