Baby Veronica Returned to Adoptive Parents

From Randi Kaye and Leslie Bentz at CNN.

The 4-year-old girl at the center of a lengthy, high-profile custody dispute between her Native American father and her adoptive parents has been returned to the couple, an attorney for the biological father said Monday.

Earlier in the day, the Oklahoma Supreme Court ruled Dusten Brown, the girl’s father, must return the girl, named Veronica, to Matt and Melanie Capobianco, who live in South Carolina.

The Capobiancos adopted Veronica at birth in 2009 and have been involved in a custody battle since then with Brown, who lives in Oklahoma.

According to an earlier written statement from the family after the court announcement, their “long legal nightmare” is over.

“Matt and Melanie cannot wait to bring Veronica home and begin the healing process as a reunited family,” the statement said.

Brown is a registered member of the Cherokee tribe and invoked the Indian Child Welfare Act to gain custody of Veronica.

His attorney, Clark Brewster, said Brown handed Veronica over Monday night.

The Cherokee Nation Attorney General also issued a statement late Monday night in response to the news, praising Brown for the “peaceful and dignified” transfer of Veronica to her adoptive parents, and saying the 4-year-old would “always be a Cherokee citizen.”

“Although this is not something any parent should ever have to do, we could not be more proud of the dignity and courage with which [Brown] carried himself,” the statement read.

A family court judge had ruled in Brown’s favor in late 2011, and he took his daughter to Oklahoma. The Capobiancos had fought since to have Veronica returned, arguing federal law does not define an unwed biological father as a parent.

In June, a divided U.S. Supreme Court sided with the Capobiancos, who are white, but Brown had refused to hand over the child.

The little girl at the center of the recent U.S. Supreme Court case is finally back with her adoptive parents after over 2 years of litigation. The Supreme Court had ordered for the biological father to return the girl to her adoptive parents, but he had refused to. This case could potentially change the future of Indian Child Welfare Act cases. Hopefully the future for baby Veronica will be less litigious.

Photo courtesy of Britannica Blog.

Monday’s Children and the Law News Roundup

photo courtesy of:

Man Wanted in Custody Case Returning to Oklahoma,

The father of a Cherokee Indian girl mired in an adoption dispute was ordered to leave an Iowa National Guard base and return to Oklahoma, an Iowa Guard spokesman said Sunday.

Brown, who is Cherokee, is charged with custodial interference involving his 3-year-old daughter, Veronica. A South Carolina couple has been trying to adopt Veronica since her birth in 2009; they raised her for two years.

The issue has been clouded by the Indian Child Welfare Act, which prompted a court in 2011 to favor the girl living with her father. But in June, the U.S. Supreme Court ruled that South Carolina courts should decide who gets to adopt Veronica.

The girl’s biological mother, Chrissy Maldonado, is not Indian and supports the adoption. She has filed a lawsuit against the federal government claiming the Indian Child Welfare Act is unconstitutional.

More recently, a South Carolina judge finalized the couple’s adoption and approved a plan to reintroduce Veronica to the couple, Matt and Melanie Capobianco. Brown didn’t show up for the first scheduled gathering Aug. 4, prompting the charge.

Several American Indian groups are also pursuing a federal civil rights case, saying a hearing should be held to determine if it is in Veronica’s best interest to be transferred to South Carolina.

Cherokee Nation spokeswoman Amanda Clinton has called the move to charge Brown “morally reprehensible” and “legally questionable.”

The attorneys for Veronica’s adoptive parents and her birth mother argued in a joint statement Sunday morning that not only is Brown committing a felony, but anyone who hides the child from law enforcement or stands in the way of the court order to turn her over — including the Cherokee Nation — also should be considered lawbreakers.

In US, a Youth is Killed by a Gun Every Three Hours, Juvenile Justice Information Exchange

More than 18,000 young people were killed or injured by a gun in 2010, according to a new report released by the Children’s Defense Fund, “Protect Children Not Guns 2013.”

According to the report, approximately 2,700 young people, up to 19 years old, lost their lives in 2010 to gun violence, the equivalent of one death every three hours and fifteen minutes, averaging 51 deaths every week.

Using data from the Centers for Disease Control and Prevention, researchers found that gun violence was the second leading cause of death for young people, only automobile accidents claimed the lives of more children and teens. The report’s authors also found that African-American youths were twice as likely to be killed by a gun than killed in a traffic accident.

Despite representing just 15 percent of all children and teens, the report said black youths made up 45 percent of all young people killed by firearms in 2010. Not only are African-American youths 4.7 times more likely to be killed with a firearm than white young people, black children and teens were approximately 17 times more likely to be the victims of a firearm-related homicide than white youths.

Older teens represent an overwhelming majority of firearm-death victims. Researchers said nearly nine out of 10 firearm-related injuries or deaths among young people in 2010 occurred among youths ages 15-19, according to the authors of the report. Black males in their mid- to late-teens were found to be the most at-risk group overall, and individuals in the demographic were 30 times more likely to be the victims of gun-related homicides than white males in the same age range.

In 2010, nearly three times as many young people in the U.S. were wounded by firearms than the number of U.S. soldiers injured in Afghanistan during the same year. Since 1963, the report stated, more than 160,000 young people have been killed by firearms in the United States — triple the total number of U.S. soldiers killed in action in Vietnam, Afghanistan and Iraq combined.

“We also need policies that support consumer product safety standards for all guns, public funding for gun violence prevention research, and resources and authority for law enforcement agencies to properly enforce gun safety laws,” she concluded. “We can — and must — raise our individual and collective voices and demand our political leaders do better right now to protect children, not guns.”

DoD Responds to Child Abuse Crisis,

Faced with an epidemic of child abuse across the four services, the Defense Department is establishing a child abuse working group, according to a Pentagon spokesman.

“The Department is in the process of establishing a Prevention and Coordinated Community Response to Child Abuse, Neglect and Domestic Abuse Working Group,” said DoD spokesman Lt. Cmdr. Nate Christensen.

The working group is part of the Pentagon’s effort to strengthen “awareness and prevention efforts to protect children and apply resources to prevent incidents of child abuse, neglect and domestic abuse,” he said.

DoD is under pressure from two powerful members of the Senate Armed Services Committee who have pressed Defense Secretary Chuck Hagel for child abuse statistics and a plan to reverse the trend.

The senators’ inquiry was sparked by an Army Times investigation that found 29,552 cases of child abuse in the Army alone between 2003 and 2012. The abuse led to the death of 118 Army children; 1,400 of the cases included sexual assault.

The number of Army cases has spiked 28 percent between 2008 and 2011. The Air Force is also reporting a 25 percent increase in cases of child abuse and assault between 2008 and 2012.

In all services except the Marine Corps, the number of cases has continued to climb. The Marine Corps cases dropped by 5 percent between 2011 and 2012 and have dropped significantly in fiscal 2013. But the number of Marine child abuse deaths has risen.

Between 2008 and 2012, there were 5,755 cases in the Air Force, 267 of them sexual, resulting in 16 deaths.

The Marine Corps figures for 2011 and 2012 showed 1,591 cases, 47 of them sexual, with six deaths. There have been four deaths this year.

The Navy reported 3,336 cases between 2009 and 2012, with a decline in 2012. But figures for the first half of 2013 show the number of cases climbing again. Among Navy families, 42 children were killed between 2008 and 2012.

Continuation of Indian Child Welfare Act and Recent Supreme Court Decision

Back in April, I wrote a blog piece about a South Carolina Supreme Court’s decision to remove Baby Girl Veronica (Baby Girl) from her adoptive parents and give custody to her biological father, Dusten Brown.  Since then, the adoptive parents, the Capobiancos, have appealed to the United States Supreme Court to reconsider the state court’s decision and represent the best interests of the child.  The Supreme Court granted certiorari and, in June, reversed the state Supreme Court’s judgment and remanded the case to the lower courts for further proceedings to determine who will be allowed to adopt Baby Girl.

The Indian Child Welfare Act of 1978 (ICWA) (25 U.S.C. §§ 1901-1963),  basically provides that (1) no termination of parental rights may be ordered without showing that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child (§1912(f)); (2) any party seeking involuntary termination of parental rights to an Indian child under state law must demonstrate that active efforts have been made to prevent breakup of the Indian family and these efforts have proved unsuccessful (§1912(d)); and (3) adoptive preference is given to the child’s extended family, other members of the child’s Indian tribe, or other Indian families (§1915(a)) to assure the continued existence and integrity of Indian tribes (§1901(3)).

The Supreme Court ruled 5 to 4 that Baby Girl’s biological father, Brown, did not qualify as a “parent” under the statutory definition because he did not have “continued custody” of the child.  In the majority opinion, Justice Alito wrote that it would be “unusual to apply [the Indian Child Welfare Act] in the context of an Indian parent who abandoned a child prior to birth and who never had custody of the child.”

However, Adoptive Couple v. Baby Girl is not completely black and white.  The Supreme Court is clearly divided on this issue, and the 5-4 decision reflects the complexity of this case.

Justice Alito delivered the majority opinion, joined by Chief Justice Roberts, Justice and Kennedy.  Justices Thomas and Breyer wrote concurring opinions.  The dissent, written by Justices Sotomayor, was joined by Justices Scalia, Ginsburg, and Kagan.

Justice Breyer and the majority seemed to be more emotionally affected by the story of Brown refusing to give child support and giving up his parental rights via text message and stated that Brown did not qualify as a parent, both by statutory definition and by his irresponsible actions of having “next-to-no involvement with his child in the first few months of her life.”  Brown relinquished custody of his child in-utero and thus never had custody of Baby Girl.  Subsequently, Baby Girl was voluntarily and lawfully put up for adoption by her non-Indian mother, who did have custody.  Baby Girl’s adoption proceedings did not break up an Indian family, because Brown never had a relationship with Baby Girl to begin with; in fact, the majority argues, Brown broke up his own family by refusing child support and giving up his parental rights to Baby Girl.  The majority also emphasizes that had Baby Girl not been 3/256 Cherokee, Brown would not have the right to object to her adoption under state law.

The Indian Child Welfare Act was enacted to help preserve the cultural identity and heritage of Indian tribes, but under 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.  As the State Supreme Court read [ICWA], 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.

Lastly, the Capobiancos were the only party seeking to adopt Baby Girl.  Neither Brown nor Baby Girl’s paternal relatives sought custody.  It would be “bizarre” to require prospective adoptive parents to “stimulate a biological father’s desire to be a parent… [and] it would surely dissuade some of them from seeking to adopt Indian children.”

Justice Thomas’s concurrence focused more on the constitutionality of applying the ICWA to child custody proceedings, and less on Brown’s suitability as a parent.  He argued that the Cherokee Nation had no jurisdiction over Baby Girl, as neither Baby Girl nor Brown was ever domiciled on an Indian Reservation, and therefore “[this] case …does not directly implicate Congress’ power to ‘legislate in respect to Indian tribes.’…Nothing in the Indian Commerce Clause permits Congress to enact special laws applicable to Birth Father [such as ICWA] merely because of his status as an Indian.”  He concluded that application of ICWA would be unconstitutional because Congress lacks authority to regulate the child custody proceedings of this case.

As part of the dissent, Justice Scalia took a more rational approach and criticized the majority for “needlessly demean[ing] the rights of parenthood” by ignoring the common law right of a father to raise his child:  “We do not inquire whether leaving a child with his parents is ‘in the best interest of the child.’ It sometimes is not; he would be better off raised by someone else.  But parents have their rights, no less than children do… There is no reason in law or policy to dilute [this father’s right to raise his daughter].”

The dissent criticized the majority of failing to see the provisions of the statute in a holistic manner and distorting them over a “policy disagreement with Congress’ judgment” by using a single phrase – “continued custody” – to misapprehend the ICWA’s structure and scope.  The Justices expressed concern about how the majority’s holding will affect other Indian parents without physical or legal custody in the future:

…[N]otwithstanding the majority’s focus on the perceived parental shortcomings of Birth Father, its reasoning necessarily extends to all Indian parents who have never had custody of their children, no matter how fully those parents have embraced the financial and emotional responsibilities of parenting.  The majority thereby transforms a statute that was intended to provide uniform federal standards for child custody proceedings involving Indian children and their biological parents into an illogical piecemeal scheme.

Justice Sotomayor argued that the ICWA defined “parent” broadly to include “any biological parent…of an Indian child” and argued that Brown qualified as a “parent” of Baby Girl, who is undisputedly an Indian child, albeit only 3/256 Cherokee, within the meaning of the ICWA.  The dissent further disputed the majority’s construction of “continued custody” and “breakup” as being too narrow.  Brown, as Baby Girl’s biological father, was re-seeking custody of his daughter, and nothing in the ICWA excludes this father-daughter relationship from the familial “relationships” that the ICWA aims to protect from “breakup.”

The dissent conceded that laws (even outside the context of ICWA) protecting a biological father’s rights to his child “can lead…to outcomes that are painful and distressing for both would-be adoptive families, who lose a much wanted child, and children who must make a difficult transition,” but recognized that “biological fathers have a valid interest in a relationship with their child.”

Overall, the dissent accused the majority for its “hollow literalism,” distorting the ICWA, and ignoring Congress’ purpose of preserving the existence and integrity of Indian families and tribes.

Having read both sides of the argument, I cannot help but side with the dissent, not necessarily because I agree with one interpretation over the other, but because I know that the majority’s holding may tear apart a little girl from her family once again.  Previously, I hoped the Capobiancos would win their little girl back, but because of the way the System works, Baby Girl has been with Brown for more than 18 months.  18 months is an eternity for young children, and by now, unfortunately, Veronica may not remember much about her first parents.

As a mother of an almost-4 year old girl, it is truly heartbreaking to have to imagine the terrible emotional trauma and anguish of a young girl who had suffered and has now barely recovered from the tragedy of being taken away from the only family she knew, to have to live through another removal, just as she established a new relationship with her biological father.

If the Capobiancos really cared for the well-being and best interests of their little girl, it may be best to let little Veronica’s wound heal, with her father.  It is also truly unfortunate that Veronica has no say in her own fate.  After all, she will be the most affected of all parties involved.