Adoptive Couple v. Baby Girl—Interpreting the Indian Child Welfare Act

By: Jamilah Espinosa

Blog Category: Racial Implications of Recent Supreme Court Decisions

The Supreme Court this summer cleared the way for the adoption of a four year old girl known as “Baby Veronica,” by the Capobiancos’, a South Carolina couple.  The case Adoptive Couple v. Baby Girl, has been a long, emotional, and contentious battle between the prospective adoptive parents and the biological father, Dusten Brown.  The story began when a woman in Oklahoma placed her daughter, Baby Veronica, up for adoption and agreed to allow the Capobiancos’, a South Carolina couple, to adopt her newborn daughter.  The baby’s biological father, Brown, had expressed his desire to terminate his parental rights.  Brown knew the mother was pregnant, but did not provide her with any support during her pregnancy.  Therefore, the adoptive couple, theoretically, would not need his consent for the adoption to proceed.

However, Brown was served with a notice of the pending adoption which he signed and did not contest.  After signing the papers, and prior to the adoption becoming finalized, Brown objected to the adoption. Brown went to court to get full custody of Baby Veronica, citing the Indian Child Welfare Act (hereinafter “ICWA”). This Act prevents Native American children from separation from their biological families and given to non-Native American foster parents.  Brown is a registered member of an Indian tribe, the Cherokee nation, thus Baby Veronica was categorized as “Indian because she was 1.2% (3/256) Cherokee.”  The trial court ruled in favor of Brown, finding that the ICWA barred the adoption.

After the lower court ruled, the South Carolina Supreme Court gave custody of Baby Veronica to Brown, and at this point Baby Veronica was twenty-seven months old, and had lived her entire life with her adoptive family.  The Capobiancos’ petitioned the United States Supreme Court to review the case. On June 25, 2013, the Supreme Court in a 5-4 decision held that the relevant sections of the ICWA were designed to preserve American Indian families.  The Supreme Court held that the ICWA did not apply to Brown because he abandoned Baby Veronica and never even had custody of her.  Justice Samuel Alito stated, “as the Supreme Court reads [the Indian Child Welfare Act], a biological [American] Indian father could abandon his child in utero and refuse any support for the birth mother—perhaps contributing to the mother’s decision to put the child up for adoption—and then could play his ICWA trump card at the eleventh hour to override the mother’s decision and the child’s best interest.”  The Supreme Court remanded the case back to the lower courts to determine Baby Veronica’s placement using state law and the Supreme Court’s interpretation of ICWA.  As of today, Baby Veronica is now living with the Capobiancos’, her adoptive parents, after the Oklahoma Supreme Court dissolved a temporary court order leaving her with Brown.  The effects of Adoptive Couple v. Baby Girl are yet to be seen in other cases, but the Native American tribes fear the purpose of the ICWA has been diminished by the case.

The opinions expressed herein are strictly those of the author and do not necessarily reflect the opinions of the Widener Journal of Law, Economics & Race.  


Adoptive Couple v. Baby Girl, 133 S.Ct. 2552 (2013).

Hansi Lo Wang, Happy Ruling for Adoptive Couple, Uncertainty For Baby Girl, NPR, (June 25, 2013),

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