National Child Welfare Association

Adoptive Couple v. Baby Girl: Information and Resources

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On Tuesday, June 25, 2013, the U.S. Supreme Court issued a 5-4 decision in Adoptive Couple v. Baby Girl, a case that grew from a custody dispute involving a child, Veronica (“Baby Girl”), her father, Dusten Brown, and a non-Native couple who unsuccessfully petitioned to adopt her. Because Brown is a citizen of the Cherokee Nation, this custody dispute implicates a federal law, the Indian Child Welfare Act (ICWA). ICWA was passed in 1978 to end unjust practices by child welfare and adoption social workers, attorneys, and courts that lead to violations of many Native parents’ rights and the widespread removal and placement of American Indian children without parental consent.

Adoptive Couple v. Baby Girl garnered significant concern from Indian Country, as the decision had great potential to impact not just the future of ICWA, but also Congress’ power to pass laws that protect Indian tribes and people.

Brown fought to retain custody since 2011, when the South Carolina courts denied the prospective adoptive couple—the Capobiancos’—petition to adopt Veronica. Instead, the courts granted Brown custody, citing two provisions of ICWA that blocked the termination of his parental rights.

However, in its opinion, the U.S. Supreme Court held that these two provisions of ICWA do not apply in cases like this one, where a parent has never had physical or legal custody of the child at the time of the adoption.

In light of these holdings, the Supreme Court sent the case back to the lower courts to determine Veronica’s placement using state law and the Supreme Court’s interpretation of ICWA. Lower courts in South Carolina previously found that Dusten is a fit and loving parent and that it is in Veronica’s best interest to be placed with her father.

It is important to note that the Supreme Court held that ICWA’s adoption placement preferences—which require that children who are adopted are placed with family, tribal members, or another Indian family (the “preferred placements”) before other possible placements—do not come into play until a preferred placement actively seeks to adopt the child. As emphasized by some of the Justices, this means that even if the South Carolina court does not place Veronica with her father, their custody determination may be affected if one of Veronica’s family members or a Cherokee Nation citizen files to adopt Veronica. On July 8, 2013 Brown, Veronica’s stepmother, and Veronica’s paternal grandparents filed to adopt Veronica.

Most significantly, this decision did not provide any sweeping rulings on the constitutionality of ICWA. Further, with the exception of Justice Thomas and a passing comment in the majority opinion, the Court did not address the long-standing ability of Congress to legislate Indian affairs. Finally, this decision does not overturn state ICWA laws that provide greater protections to non-custodial parents.

NICWA worked closely with the Tribal Supreme Court Project, Cherokee Nation, and Brown’s legal team throughout the course of this litigation. Along with its partners, the Association on American Indian Affairs and the National Congress of American Indians, NICWA filed an amicus brief in support of Baby Girl.

NICWA has pledged it support to the Brown family in the future.

Fact Checking Media Coverage of Adoptive Couple v. Baby Girl

Extensive media coverage of Adoptive Couple v. Baby Girl has included many inacuracies. Whether misinformation has been repeated inadvertently, or as part of coverage which includes myriad opinions, NICWA has checked some of these recurring assertions here. [Note: Updated through 2012 only.]

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Extensive media coverage of Adoptive Couple v. Baby Girl can be found on NICWA's Storify page.