exposing the dark side of adoption
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Case Pits Adoptive Parents Against Tribal Rights



WASHINGTON — “What has been the toughest decision for you?” Charlie Rose asked Justice Antonin Scalia in a television interview a few weeks ago. He meant the most personally wrenching.

Justice Scalia has served on the Supreme Court for more than a quarter of a century, and he has seen his share of difficult cases. But one stuck out.

“It was pretty early on in my time on this court,” he said. “We had a case in which a very wealthy rancher and his wife had adopted a child of a young man and woman on an Indian reservation who had had the child out of wedlock. And they gave the child to the rancher to raise.”

A state court in Mississippi had approved the arrangement. But a federal law, the Indian Child Welfare Act of 1978, required tribal courts rather than state ones to decide.

“The kid was, I think, 5 years old or so” by the time the case reached the Supreme Court, Justice Scalia recalled. “And we had to turn that child over to the tribal council. I found that very hard. But that’s what the law said, without a doubt.”

Justice Scalia’s recollection of the case, from 1989, was understandably a little hazy. It involved 3-year-old twins, and their adoptive father had died by the time the case was decided.

But he had the main point right. In various ways, the 1978 law he cited makes it hard to remove American Indian children from their parents, their tribes and their heritage.

The case that troubled Justice Scalia now has a sequel, and at their private conference next week, the justices will consider whether to hear it.

The new case involves a South Carolina couple who were ordered to turn over a 27-month-old girl they had cared for since birth to her biological father, an Indian, whom the little girl had never met.

The South Carolina Supreme Court, saying it did so “with a heavy heart,” ruled for the father even as it acknowledged that the adoptive couple, Matt and Melanie Capobianco, were “ideal parents who have exhibited the ability to provide a loving family environment.” He works as a technician at Boeing; she has a doctorate in developmental psychology.

Under South Carolina law, the child, Veronica, would have stayed with the Capobiancos. Under the federal law, she was sent to live with her biological father, Dusten Brown, a member of the Cherokee Nation.

The federal law was a reaction to a dark history of abusive child welfare practices involving Indian children and was sensitive to distinctive aspects of Native American culture. But the Capobiancos and their supporters say the law may have gone too far, by intruding on domestic decisions traditionally governed by state law and by putting a thumb on the legal scale based on the race of one of the parties.

The central question for the justices, the Capobiancos say, is whether an absent father should have the right to thwart a mother’s wishes about the fate of her child simply because he happens to be an Indian. The vote in the State Supreme Court was 3 to 2, and the dissenters were not impressed with Mr. Brown. According to one dissenting judge, Mr. Brown had “turned his back on the joys and responsibilities of fatherhood at every turn.” Another said Mr. Brown’s “vanishing act triggered the adoption in the first instance.”

Here is a piece of evidence that may color your view of Mr. Brown: before his daughter was born, he renounced his parental rights by text message. In fairness, the child’s mother also used text messages to break off their engagement and to ask for child support.

Mr. Brown changed his mind when he heard that his former fiancée, who is not an Indian, had put their daughter up for adoption. He invoked the 1978 law, and he has so far succeeded in blocking the adoption, despite opposition not only from the Capobiancos but also from the girl’s biological mother and the girl’s court-appointed guardian.

Family courts ordinarily base their decisions on the best interests of the child before them. But the 1978 law says other factors must be considered. “The tribe has an interest in the child which is distinct from but on a parity with the interest of the parents,” Justice William J. Brennan Jr., writing for himself, Justice Scalia and four other justices, explained in the 1989 decision, Mississippi Band of Choctaw Indians v. Holyfield. This was, Justice Brennan added, “a relationship that many non-Indians find difficult to understand.”

Justice Brennan recognized that the law sometimes produced heartbreak. “Three years’ development of family ties cannot be undone,” he wrote, “and a separation at this point would doubtless cause considerable pain.” But the 1978 law, he said, required that the tribal court make the decision.

The questions in the new case, Adoptive Couple v. Baby Girl, No. 12-399, concern other parts of the law. But the larger issue is similar, and how it is answered could affect thousands of adoptions every year.

In the 1989 case that Justice Scalia discussed with Mr. Rose, there was, though the justice did not seem to know it, something of a happy ending. The tribal court allowed the children to remain with their adoptive family, saying that “it would have been cruel to take them from the only mother they knew.” At the same time, the court ordered that the children stay in contact with their extended family and tribe.

There does not seem to be such a middle ground in the new case, and it is not clear whether the justices will want to take on the burden of a decision with the potential to weigh on them for decades.

2012 Dec 24