Last month, the U.S. Supreme Court issued a decision on Adoptive Couple v. Baby Girl, otherwise known as the Baby Veronica case. The U.S. Supreme Court had been asked to decide what constitutes a “parent” under the Indian Child Welfare Act (ICWA), specifically if the definition includes an unwed biological father who had not complied with state law to establish paternity; as well as whether a voluntary adoption, lawfully initiated by a non-Indian legal parent, could be blocked by a non-custodial parent under ICWA.
The U.S. Supreme Court ruled in a 5-4 decision that the protections under ICWA did not, in fact, apply in this specific situation. The justices writing for the Court stated that the intent of Congress, in writing ICWA, was to “prevent the dismantling of Indian families by the removal of Indian children,” and since Dusten Brown did not have legal or physical custody at any point prior to the adoption petition, ICWA did not bar termination of his parental rights.
An interesting part of this decision concerns the adoption placement preferences found in Section 1915(a) of ICWA. These preferences are 1) the child’s extended family; 2) other members of the child’s tribe, and 3) other Indian families. The U.S. Supreme Court stated that since no one other than the Capobiancos had formally sought to adopt Veronica, the adoption placement preferences in ICWA are inapplicable. More specifically, Dusten Brown, the biological father of Veronica, is not covered under this section because he never formally sought to adopt his daughter, arguing instead that his parental rights should never have been terminated in the first place.
The judgment of the South Carolina Supreme Court was then reversed, and the U.S. Supreme Court ordered the case to be sent back to the South Carolina Supreme Court for further proceedings.
Adoption proceedings to go forward
Earlier this week, in a 3-2 decision the South Carolina Supreme Court ordered the family court to promptly move forward with the adoption of Veronica by the pre-adoptive couple, Matt and Melanie Capobianco. The justices explained that since the Capobiancos are the only ones with a pending adoption petition for Veronica, “theirs is the only application that should be considered at this stage.”
With this decision, the court is essentially resuming adoption proceedings under South Carolina state law. The justices delivering the majority opinion stated that their concern for the emotional wellbeing of those involved, particularly Veronica, was what prompted them to speed up the process by skipping the family court hearing.
The two dissenting justices thought the case should be returned to the family court to decide what is now in the best interests of Veronica. They described the case as “a situation where the decisions that are in the best interests of this child, given all that has happened in her short life, must be sorted out in the lower court(s).”
Considering the child development perspective
From a child development perspective, an immediate transfer of custody without consideration of the best interests of the child by child development experts is cause for concern. Veronica is not yet four years of age; that, coupled with the fact that she has been living with her father for the last 18 months should require consideration of her best interests. This article from Slate sums up the issue neatly:

When

[Veronica] was 2, it was wrong of the courts to take her from [the Capobiancos]. But now that she is 3 1/2 and has lived with Brown for the last year and a half, it’s not at all clear that sending her back is best for her. If Brown is a good parent—which appears to be the case—most child development experts would probably counsel the opposite.

Note on laws concerning paternity and fathers’ rights
In South Carolina, the process of establishing paternity under child support laws is vastly different than the process found under adoption consent laws. One requires a DNA test; the other is slightly more complicated. In this particular case, Brown would have needed to provide financial support of the mother/child six months prior to and six months post birth of the child.
The process of establishing paternity and subsequently the right of the father to parent is something that I think was a vital aspect of this case. Many states, including Minnesota, recognize the husband as the legal father of his wife’s child; fathers who are unmarried do not tend to have any legal rights (or financial obligations) until they are legally established as the father.
I recognize that this case has been very emotional for many people. I invite you to leave a respectful comment with your reaction to this most recent development.