Maine attorney general dismayed over high court’s decision in Indian custody case

AUGUSTA, Maine — Maine’s attorney general Friday expressed dismay over the U.S. Supreme Court’s decision earlier this week that will send a 3½-year-old girl named Veronica, now living with her Cherokee birth father in Oklahoma, back to the South Carolina home of her adoptive parents, who are not Indians.

“The decision places limits on the applicability of the Indian Child Welfare Act (ICWA) in a case in which the court found that the biological father who was a tribal member had relinquished his rights to his daughter because he did not have ‘legal custody’ of the child,” Attorney General Janet T. Mills said in a press release.

In March, Mills signed onto a “friend of the court” brief[1] that urged the parental rights of the father be upheld. The court ruled 5-4 that the father, identified by the Washington Post as Dusten Brown of Nowata, Okla., gave up his parental rights in a text message sent days before his unit was deploying to Iraq.

“That is a deplorable result, a result that would not have occurred in Maine,” Mills said Friday in a press release. “In this state we will continue to give tribal parents maximum deference.”

The court ruling, written by Supreme Court Justice Samuel Alito, did not call the law itself into question, but said it was misapplied in this particular case, according to the Post.

The Indian Child Welfare Act, passed in 1978, requires that a parent who is a tribal member be given strong preference for custody, according to Mills.

The law further requires that in an adoption placement of an Indian child whose parents have given up their rights, state courts must give preference to a member of the child’s extended tribal family or to other Indian families unless good cause is shown to deviate from those preferences.

“Under Maine law, this man would not have lost rights and responsibilities to his child,” Mills said. “He would be presumed to have equal parental rights with the mother under longstanding Maine statutes. We will continue to urge courts and case workers in Maine to apply ICWA fully, giving effect to Congress’ intent to ensure that the rights of Indian children, their parents and their tribes are fully respected in child custody proceedings.”

The case, known as Adoptive Couple v. Baby Girl, began in December 2008, according to a Post article dated Tuesday, when Brown and the girl’s non-Indian mother, Christina Maldonado, became engaged. She learned a month later she was pregnant.

“But she called things off after Brown pressured her to get married right away, and he later told her via text message, in response to her question, that he would rather give up [his] parental rights than pay child support,” the Post said.

Maldonado arranged for an adoption with Matt and Melanie Capobianco of Charleston, S.C., the newspaper said. The couple supported the mother through the final weeks of her pregnancy and were in the delivery room in September 2009 for Veronica’s birth.

Although the child is only 3/256th of Indian descent, she legally is a member of her father’s tribe.

“Brown, who was in the Army at the time, learned just before he was about to ship out to Iraq that the child had been placed for adoption,” the Post said. “He immediately tried to stop the process and, as a member of the Cherokee Nation, invoked the ICWA.”

A family court judge in South Carolina and that state’s supreme court found that the federal law meant the father’s parental right could not be terminated, so the adoption could not go through, the newspaper said. The Capobiancos turned Veronica over to her father in 2011 when the child was 27 months old.

The South Carolina couple on Wednesday filed a formal request that the U.S. Supreme Court waive the usual 25-day waiting period and put its decision into effect “forthwith,” Lyle Denniston, a veteran Supreme Court reporter, wrote Thursday on www.scotusblog.com[2]. Brown and the Cherokee Nation have opposed waiving the waiting period.

That request was pending Friday.

Justices John Roberts, Anthony Kennedy, Clarence Thomas and Stephen Breyer joined Alito in the majority. Justices Sonia Sotomayor, Ruth Bader Ginsburg, Elena Kagan and Antonin Scalia were in the minority.

There are no recent cases in Maine similar to the one decided Tuesday by the Supreme Court. In the past, Indian children in Maine were placed in foster care as part of national practices that were implemented in the late 1800s, according to Esther Alvater Attean of the Muskie School of Public Service.

The Maine Wabanaki-State Child Welfare Truth and Reconciliation Commission [3]began meeting in February to create a report outlining the history behind the policies that routinely put Indian children in the foster care of white families and to recommend changes to prevent future harmful welfare practices.

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