Last December, the South Carolina Supreme Court ordered the return of a 27-month-old girl who was in the process of being adopted to her biological father, Dusten Brown, who is American Indian. Now, a year later, at the request of the adoptive parents, the US Supreme Court has agreed to hear the case.
After Brown and the birth mother split, she asked in a text message if he would rather pay child support or surrender his parental rights. Though Brown responded via text that he would relinquish rights, he testified that he believed he was relinquishing his rights to the mother in hopes they would resume their relationship, and if he’d known she was placing the baby for adoption he would not have consented. He discovered that his daughter had been put up for adoption four months after birth (though legally he should have been notified within 30 days), when he was presented with a consent form outside a shopping mall. He signed it, admitted he didn’t understand what he was signing, and immediately petitioned for custody.
Here’s a kicker: the ethnic identity of the father appears to have been suppressed during the adoption process. The birth mother, who is not Indian, did not wish to identify the father’s Cherokee background, wanting “to keep things low-key as possible”. She did, however, end up reporting the child’s Indian heritage on the adoption agency forms and claimed she told the adoptive parents about it. After the birth, she signed forms consenting to the adoption and allowing the adopting parents, Matt and Melanie Capobianco, to take the baby girl across state lines from Oklahoma to South Carolina. The latter form listed the baby’s ethnicity as “Hispanic” instead of “Native American.”
But, had the Cherokee Nation known about it, the Capobiancos would not have been able to remove the baby from Oklahoma due to the 1978 Indian Child Welfare Act (ICWA), which protects Indian families from being separated. Had the father known about the adoption, he would not have allowed it.
The court ruled “with a heavy heart,” in favor of Brown, who returned to Oklahoma with his daughter.
Here’s a kicker: the ethnic identity of the father appears to have been suppressed during the adoption process. The birth mother, who is not Indian, did not wish to identify the father’s Cherokee background, wanting “to keep things low-key as possible”. She did, however, end up reporting the child’s Indian heritage on the adoption agency forms and claimed she told the adoptive parents about it. After the birth, she signed forms consenting to the adoption and allowing the adopting parents, Matt and Melanie Capobianco, to take the baby girl across state lines from Oklahoma to South Carolina. The latter form listed the baby’s ethnicity as “Hispanic” instead of “Native American.”
But, had the Cherokee Nation known about it, the Capobiancos would not have been able to remove the baby from Oklahoma due to the 1978 Indian Child Welfare Act (ICWA), which protects Indian families from being separated. Had the father known about the adoption, he would not have allowed it.
The court ruled “with a heavy heart,” in favor of Brown, who returned to Oklahoma with his daughter.
The Capobiancos were understandably upset with the sudden loss of the girl they’d raised and nurtured for 27 months. Mr. Capobianco reportedly cut the umbilical cord when the baby was born. No doubt they are wonderful parents and they love the girl. I feel for them—what grief and loss they must live through.
But the case is not as simple as the media and general populace like to think.
In most reports, the adoptive parents are described as well educated, successful, loving, “deserving” parents, who were wronged by the system.
They created a Web site called saveveronica.org, implying that “saving Veronica” means to remove her from the home she’s been living in and return her to them. They say the child’s removal and separation from them was not in the best interest of the child because of the familial bonding that took place for two years, yet they request another removal of the child from the family she has likely bonded with for more than a year since.
A petition on Change.org in reaction to the case calls for lawmakers to amend the Indian Child Welfare Act to “ensure tribal rights aren't placed before a child's rights.” Clearly the child’s “rights” must be synonymous with the adoptive parents’ “rights.”
And here’s where we always step into murky waters: when we start talking about children and families in terms of “rights”. Who has a “right” to another person? Does the child have a right to grow up surrounded by the Cherokee culture she was born into?
As a biracial child raised in a White home in an all-White community, I missed out on the experience of growing up with people of color who could help me cope with racial epithets and develop a healthy identity as a mixed girl in opposition to messages I was getting through media and other means. My adoptive parents did not know that my birth father was Black, as that information had been suppressed. My birth father, similar to Mr. Brown, was not made fully aware of my adoption. When I found him in 2009, his family—a large Black family that raises children together, like a tribe—was shocked I’d been given away. My father was, in a sense, stripped of his “right” to parent. I was, in a sense, stripped of my “right” to be nurtured in an environment that was not hostile to my ethnic heritage.
When we talk about “rights”, we can argue that everyone involved has rights—the biological mother, the biological father, the adoptive mother, the adoptive father, the child, even a community—and when those rights are in opposition, it becomes a question of whose rights supersede others’. Historically, the winner is usually the most privileged party in terms of economic wealth, social status, race, etc. (Hence the need for minority child welfare laws such as the ICWA and the 1972 report by the National Association of Black Social Workers, which decried the alarming number of Black children being taken from their families and placed into white homes that they found inadequate for the development of healthy Black identity.)
This little girl has a right to a safe, loving home—that’s a statement I won’t argue. But who’s to say that the birth father’s home isn’t safe or loving? During the court proceedings a Child Welfare Specialist with the Cherokee Nation said, “this child will thrive [with Brown], I don't have any doubt. […] She'll know who she is and where she came from. She'll be very loved.”
She'll know who she is and where she came from.
Couldn’t we say that’s her right too?
Most adoptees and people of color would agree.
Unsurprisingly, general reaction to the case sympathizes with the adoptive parents and yet expresses outrage toward the birth father.
“Dusten Brown is a scum bag,” writes one reader on Nativestrength.com. That one is quite genial in comparison to scads of hateful criticisms.
There’s little information out there about how the child has fared living with her father the past year, so we cannot judge how well he parents or whether he’s a “scum bag.” If this were really about the child and how she’s doing, wouldn’t we hear more about that?
I tire of the vitriolic comments (from people who are not adopted, might I add) that shame and judge birth parents and simplify adoption by feeding stereotypes that privilege adoptive families’ desires.
I’m not saying that the adoptive family is in the wrong for wanting to parent a child they believed they had full custodial responsibility of and had fallen in love with. Nor do I think Mr. Brown is in the wrong for wanting to parent his biological child. I do not agree with several commenters’ view that “race and ethnicity have no place” in deciding family matters.
We must always remain humble and refrain from quick judgments and easy conclusions, especially concerning delicate, complex matters of family and identity.
I do not envy the US Supreme Court; no matter the outcome of the case, there will be pain, for someone. That is the nature of adoption, a transaction that begins with loss.
