Adoptive Couple v. Baby Girl: Who Is a Parent Under Law?


Yesterday, the Supreme Court heard oral argument in the case Adoptive Couple v. Baby Girl. While arguments touched on a number of topics, they centered on an issue crucial to all of us—how a parent is defined under the law. This question is particularly salient as we consider immigration reform and marriage equality, both of which touch on what constitutes a family and how the law does—or does not—support it.

At stake in this case is the fundamental right of individuals to parent their biological children, and of minority and politically disadvantaged communities to protect their cultural identity and integrity.

Many of the facts in the case are disputed. But there are a few that we know to be true: Dusten Brown is Veronica’s biological father. He was estranged from Christina Maldonado, Veronica’s biological mother, at the time of her birth. Dusten was informed of Christina’s intention to put Veronica up for adoption just a few days before he was scheduled to deploy to Iraq. As soon as he found out that his daughter was about to be placed for adoption outside the family, he sought custody and formal legal recognition as her father.

Because Dusten is an enrolled member of the Cherokee Nation, and his daughter, Veronica, is eligible for membership, the federal Indian Child Welfare Act (ICWA) governs this dispute.

And with good reason–there is a long legacy of discrimination against Native American parents, especially when it comes to raising their own children. This discrimination is largely based on unfounded myths and stereotypes about their fitness as parents and biases against traditional Native parenting styles. Beginning with federal policies in the early 1860s and continuing through the 1970s, the U.S. government deliberately took Native American children from their families and communities and placed them in non-Native homes or in boarding schools. After years of advocacy by the Native American community and with thousands of pages of testimony describing how these practices were devastating to tribal families, traumatizing to Native children and depleting of tribal populations, Congress passed ICWA.

The law enhances the ability of Native Americans to parent their children with dignity by providing two major protections: (1) deeper cultural sensitivity in child welfare placements, and (2) increased respect for tribal determinations in child welfare matters. The law has been effective at reducing rates of overrepresentation of Native Americans in both foster care and adoption from their peak during the 1970s, but to this day Native American children continue to be three times more likely than their white counterparts to be removed from their homes and placed in foster care. Biases persist, in spite of the protections set up to alleviate and eradicate them, and the law is still essential to protect Native American children, parents, and communities from abuses in the child welfare system.

The protections of ICWA extend to both Native American parents and tribes, providing them with, among other things, the right to intervene in voluntary adoption proceedings. In order to qualify for this protection, Dusten needed to be considered a legal parent. During yesterday’s oral argument, the justices were concerned with that very question. Family law and its definition of parentage varies from state to state, and also under federal law. In this case, if the justices follow the federal definition of who is a parent under ICWA, then Dusten’s biological relationship to Veronica and his acknowledgement thereof is determinative of his legal status as an Indian parent with rights under ICWA. But if the justices use the state’s definition in South Carolina, where the adoption occurred, Dusten could not object to the adoption as a legal parent because he did not support Veronica’s mother during her pregnancy or immediately after the birth, in spite of his acknowledgement of paternity days after learning of her impending adoption. The Supremacy Clause establishes federal law as the law of the land, and therefore, ICWA, rather than state law, should govern in this case.

This law only applies to children who are members or eligible for membership of Native American tribes and their parents, but it should be a best practice for all child placement determinations. Culture and community matter. While the most important things a child needs are love and stability, ideally children would have the opportunity to be raised by those who share their heritage and can teach them the culture and traditions of that heritage. Moreover, it is important for the law to presume that members of historically marginalized communities are legitimate and fit parents unless proven otherwise in order to correct for the bias that so often still exists to the contrary.

Adoptive Couple v. Baby Girl is a complex and emotionally wrenching case for all involved – the biological father, the potential adoptive parents, the Cherokee tribe, and Veronica herself – but ICWA must be upheld in order to give Native American parents the opportunity to parent their biological children and tribes the ability to protect their cultural integrity by providing consistency across states and in accordance with congressional intent.

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  • comtnlady

    Lots of facts are missing from this pretty biased piece. I support ICWA as a great mechanism for protecting the community and culture of native tribes, but it’s not the only way to protect the best interests of the children involved and certainly shouldn’t super-cede with no regard for the circumstances of this case or the biological mother’s decisions about what’s best for her daughter. In a case such as this where the father relinquishes his parental rights and the Cherokee nation is notified of the possible adoption and chooses not to intervene (facts missing from this analysis), it is clear to me that the proper channels were followed in order to put this child up for adoption. ICWA was created to protect parents and tribes from having their children forcibly removed, but in this case, the parent willingly gave up his rights and then changed his mind only when the mother decided it was not in the child’s best interest to be in her care. While ICWA should certainly “be upheld in order to give Native American parents the opportunity to parent their biological children and tribes the ability to protect their cultural integrity,” this case unfairly mis-places both the letter and the intent of ICWA.

    • Informed

      You’re factually mistaken about the role of the Cherokee nation here.

      The author is correct. When the private adoption agency sent notice to the tribe, the father’s name was spelled wrong and the wrong birth date was given. Now it may be the case that the mother didn’t know how to spell the father’s name or the actual date of his birth, or it may have been a series of typos by the agency. Nevertheless, the wrong information was provided to the Cherokee Nation. The Cherokee Nation checked and had several citizens with the same name, including the same spelling and different spellings. But the tribe did not have a citizen with that spelling of the name with that birth date. The tribe sent back a response stating, based on the information provided, that person is not an enrolled member of the Cherokee Nation.

      So to suggest as you do that “proper channels were followed” is flatly mistaken.

  • Informed

    Lots of facts ARE missing, but not because the piece is biased.

    First of all, the adoption was never finalized. There was no adoption. The mother placed the child with the South Carolina couple for the purpose of adoption. The adoption was not finalized, in part because ICWA was not followed. Consequently, there was a placement, but not an adoption.

    Second, the father never relinquished his rights — willingly or through abandonment. The trial court in South Carolina found he did not relinquish his rights. The South Carolina Supreme court affirmed the trial court. So unless you sat through the entire family court proceeding, heard all the evidence on both sides, and had appropriate legal training to understand the rules and standards of evidence, I’m recommend that lay blog-readers respect the trial court’s authority to make factual findings.

    During the Supreme Court oral argument Justice Alito asked Charles Rothfeld if the case might have come out the same way under South Carolina law
    even if ICWA did not apply. Rothfeld said it would have. So, asks Justice Alito, “Why are we here?” Indeed.

    So far, every court that has heard this case found in favor of the father. So while you may believe that the “proper channels” were followed, you’d have the full weight of the South Carolina bench disagreeing with you.

  • More Informed

    CJ Roberts: So he was excited about the pregnancy, as long as he wasn’t held financially responsible?

    I think that says it all right there.

    This guy has zero interest in being a real parent. He admitted as much himself. He said he wanted no part of Veronica’s life. As long as he didn’t have to pay for anything, he was fine with signing away his parental rights. It’s right there in the SCSC transcripts.

    This entire thing is about this child’s race. Why are her other blood quantums, which are far more dominant, not considered here? ICWA is dangerous. It is dangerous to women’s rights, parents’ rights, children’s rights, and it’s all because it’s saying that being Native American puts those who choose to utilize it are above the laws those who are not Native American must follow. If this case is ruled in favor of ICWA, that puts every subsequent adoptive family in jeopardy of having their children removed from them if someone – a mother, father, grandparent, any tribal member or a tribal counsel – decides that child should be in an Indian home, no matter how long that child has been with his or her adoptive family.

    This is not the only case that has gone sour and there have been many that have ended badly, with murder. The ICWA issues in North Dakota at Spirit Lake have been exposed with an innumerable amount of reports concerning sexual abuse, physical violence, drug abuse, incest. Children are dying every day because of this law.

    The tribes receive money for every enrolled tribal member. THAT is why they cling to blood quantum. It’s about money. Period. They don’t care about this little girl’s best interest.

  • Warbo

    This is a crazy case, but I think it sums up a good share of what’s wrong with our legal system. First of all, I think laws like ICWA are awful even if they yield some good results. It’s lazy litigation in that it’s an extremely heavy-handed approach to a problem and is an attempt to correct a wrong by mandating another one. It appears legally clear that the custody rights belong to the biological father here (though I doubt that’s what’s best for the child). I think someone at the firm that the biological mother used to get the father to sign over his rights needs to be jailed for how they handled it, because it was fraud plain and simple. The fact that he was defrauded out of his child—not ICWA—should be enough to get his child back legally. But if it was simply a matter of what’s right for the child (and I think it should be), I would say leave her with the adoptive parents. Unfortunately, law can’t be humane that way, that’s why everything goes so wrong.

    The best thing that could happen here is for the father to drop this case, go find a nice girl (perhaps be smart about it this time and marry her) and have another, less complicated baby. Taking a three-year-old baby from a caring family doing everything right and dropping her in the lap of a single father with military obligations and no experience does no favors to anyone.