“These considerations are why domestic relations pose the hardest problems for judges,” he said. “If we could appoint King Solomon, who was the first domestic relations judge, as special master, we could do it. But we can’t do it.”
The case turns on the Indian Child Welfare Act (ICWA), which Congress passed in 1978 to help preserve Native American families by erecting high hurdles for ending the parental rights of Indian parents and to discourage adoptions outside tribes.
Washington lawyer Lisa S. Blatt, representing the Capobiancos, told the justices that the intent of the law had been perverted in the case of Veronica and that affirming the decision to return the child to her father would set a dangerous precedent.
“You’re basically banning the interracial adoption of abandoned Indian children,” she told the court.
Moreover, she said, the lower court’s interpretation of the law gave an unwed Indian father veto power over a non-Indian mother’s decision to place her child for adoption.
“Your decision is going to apply to the next case . . . where a tribal member impregnates someone who’s African American or Jewish or Asian Indian, and in that view, even though the father is a completely absentee father, you are rendering these women second-class citizens” in deciding who raises their child, Blatt said.
Charles A. Rothfeld, representing Dusten Brown, the girl’s biological father, said it was simply false that a family court in South Carolina and the state Supreme Court did not decide the case based on the best interests of Veronica.
“The state courts found that ICWA should be applied to allow a natural father to raise his child,” Rothfeld said. “Those courts found that it’s in the best interests of the child . . . because that parent was a fit, was a loving, was a devoted parent.”
Brown and Christina Maldonado became engaged in December 2009 and learned a month later that she was pregnant. But she called things off after Brown pressured her to get married right away, and he later texted, in response to her question, that he would rather give up parental rights than pay child support.
Maldonado decided to place the baby for adoption. The Capobiancos met the mother through an adoption agency, supported her in her last months of pregnancy and were in the delivery room when she gave birth. They named Veronica and brought her to their home in Charleston, S.C.
When Brown later learned that the child had been placed for adoption, he immediately tried to stop the process and, as a member of the Cherokee Nation, invoked the ICWA.