Adoptive Couple v. Baby Girl

0:01Hey, Radiolab, this is Lulu. Today we're bringing you a story that begins with a very personal heartbreak. One that when you examine it, pull it up, you see is attached to this web of complex laws and decisions. It's this one very personal story with the potential to affect 3 million people. Just a note that we originally reported this back in 2013, and in it people use the word Indian to refer to Indigenous Americans. That, of course, is a term that some folks who are Indigenous use to describe themselves, but not all. So we want to acknowledge that one term is being used here to describe a huge culturally diverse group of people.

0:45I'm very excited for you to hear this piece, which, as you'll see, is still just as relevant today. So here we go. Adoptive couple v. baby girl. Wait, you're listening. Okay. All right. Okay. All right. You're listening to Radiolab. From WNYC.

1:13Hey, I'm Jad Abumran. I'm Robert Krillwich. This is Radiolab. The podcast. And today on the podcast, we are going to venture into new territory. For us, we have the story of a little girl who became a very, very big deal. How big a deal did this little girl become? A very big deal to about 500-something nations. There aren't 500. No, there are. Look, I've seen the front of the U.N. No, there are. Just look. Look, OK. It's going to make sense in about 30 seconds. OK. That was just a that's a tease. It isn't ultimately even that important to the story. So just just you and I are going to sit right here and behave ourselves.

1:48And Tim Howard, our intrepid producer, is going to tell us the story. So I first I first heard about this story. I saw it listed on the Supreme Court docket for cases that they were going to be hearing this spring. Well, the name of the case is Baby Girl versus Adoptive Couple. Actually, in strict legal parlance, it's called Adoptive Couple v. Baby Girl. It's not a particularly catchy name. I gotta say, it's a weird name, though. It's hard to picture. Yeah. So this is Marsha Zugg. Associate Professor of Law at the University of South Carolina. And she wrote about this case in Slate. And it stood out to me because, you know, it just seemed odd at first that this would even be a Supreme Court case.

2:25It seemed more like a straightforward custody case. Right. But when you dig in... There's a lot going on here. Crusade Text messages State law Heirs Children Supreme Court Christopher Columbus Christopher Columbus And it is not straightforward at all Apparently not So let me walk you through it the way that I learned about it The story begins with a couple Matt and Melanie Capobianco They are a couple who live down here in South Carolina He's a technician at Boeing She's a developmental psychologist Nice middle class white couple They're in their late 30s They really wanted to have a kid They had gone through, you know, infertility problems.

3:06It wasn't working out. So, eventually, they decide to adopt. Enter a woman named Chrissy Maldonado. She lives about a thousand miles away. I believe she's in Oklahoma. She's in her 20s, already has a couple kids. She's pregnant and decides that she wants to give the baby up for adoption. And she picks the Capobiancos. And everyone seems happy. The Capobiancos get the baby and they name her Veronica. We used to call her boss lady. Not a lot. Most of the time it was... Our family called her that. Boss lady. Bosses everybody around. This is Matt and Melanie Capobianco. But you were happy to do whatever she told you to do, because she's just the poster child for a proud father, you know?

3:47But it's just gone as wrong as it could have possibly gone.

3:56This is basically how it unfolded on TV news. A concession on the docket today, a young child ripped from the arms of the only parents she's ever known. And turned over to the Native American biological father she has never met. A man Veronica had never even met. What happened is when Veronica was two. Her biological dad turned up. Seemingly out of nowhere. And according to these clips, hadn't been around for two years, had abandoned the child. And now he's asking for custody. And he gets it. And the court is making them stand by and just let it happen. Wait, why? Well, it's mainly because of this law.

4:30The Indian Child Welfare Act. The 1978 Indian Child Welfare Act. Dustin, the dad, he's Cherokee. He's a part of the Cherokee Nation. So that makes his daughter, Veronica, eligible to be Cherokee. And the law is designed... To keep Indian families together. It gives preference to Indian kids staying with Indian parents. So even though he'd actually signed papers agreeing to the adoption, he was able to invoke this law and get custody of Veronica. He signed his custody away and he was able to then use his Cherokee-ness to reverse the rights he signed away? Just hang on. This is all going to make sense.

5:05Okay, but he takes the kid is what you're saying. Yeah. New Year's Eve 2011, with cameras rolling, Dustin Brown drives his pickup truck into Charleston. Matt and Melody Capobianco clutch to two-year-old Veronica. This could possibly be the last time they hold their baby as her mom and dad. And that evening, Veronica is transferred to Dustin. I didn't feel like we had enough time for her to be not afraid when she's... We love to her. It's strangers. Yeah, when she's... I mean, to her, they're complete strangers, and I can't imagine that she's not going to be terrified. And as Dustin gets into the truck, holding his two-year-old daughter for the first time, a reporter asks him...

5:49Do you think this is in her best interest? And this is all you hear from him. I think so. Let's move it back, please. We need to give her a chance again. Have you ever seen the child before? They declined any further comment on camera. He gets into the truck with Veronica, and they drive away, back to Oklahoma. Can I ask you, when was the last time that you spoke with Veronica? The day after. the day after the transfer. Oh, a phone call? Yeah, we spoke to her for about two minutes.

6:31We told her we loved her, and she said, I love you, Mommy, and I love you, Daddy. I don't know, just a few minutes. But that was the last time we were able to be in touch. And that was 16 months ago. And how long was Veronica with them again before this happened? About two years. Oh, man, that's hard. Yeah. And, you know, when I first heard about this case, that's basically the only way I thought of it, you know, is just that's a crazy injustice. That's basically all I saw in it. I mean, if you're someone who has no background in this, then you see a case like the baby Veronica case and you're like, whoa, where is this coming from?

7:14How can this possibly be OK? That's Marsha Zugg again. And her article for Slate kind of caught me off guard because the title was Doing What's Best for the Tribe. Two-year-old Veronica was ripped from the only home she's ever known. The court made the right decision. Yeah. So I called up to ask her, like, what do you mean by that? One of the things that I think is important to realize is that the problems that ICWA was intended to address didn't stop happening that long ago. And this is where the story turned into the biggest rabbit hole I've ever fallen into. What did she tell you? I mean, Marcia basically said the only way you can begin to wrap your mind around what's right and what's wrong in this story is to go back to the 60s.

8:07and to this guy. Bert Hirsch. I'm a lawyer. He lives in Long Island now, which is where I visited him. But in 1967... The fall of 67, I was on the staff of the Association on American Indian Affairs. Sort of a legal advocacy group for American Indians. And he traveled all over, working with different tribes. One day, he gets a phone call from this guy, Louis Goodhouse. The tribal chair of the Devil's Lake Sioux Tribe in North Dakota. And this guy says, I really need your help. He said there was a child. A Devil's Lake kid, one of ours, that was just abruptly taken away by social workers. The Benson County, North Dakota Social Services Agency came in, and they took little Ivan Brown away from his grandmother.

8:55He was six. What was their stated reason for taking Ivan away? Neglect. Because what? Because grandma wasn't around? No, actually, Bert says that the social workers were looking for that classic nuclear family. Biological mother, biological father, children. So when they saw him with an older relative, but no mom or dad, they thought, uh-oh. And they took him away. The tribal council was extremely upset by this. They wanted to fight a battle about this. Bert took the case, fought it in court. We won that case, by the way. Mrs. Alex Fornia, she got Ivan back after a somewhat protracted battle. But he began to wonder, how widespread is this?

9:38So from 67 to the end of 68 into 69. He visited tribe after tribe after tribe. Doing interviews. And he says that everywhere he went, he would hear these stories. I remember it vividly. This is Deb Wells. She's a member of the Rosebud Sioux tribe. And when she was 10 years old, a car pulled into her driveway. Somebody come driving in, social workers, and they got out of the car. And I told my brothers and sisters, I said, go hide. And they had to drag us out from underneath the bed because we got around and got in the house. So then they took us to Scotts Bluff and put us in a foster home. It was horrible.

10:17This was just part of every Native family's history. This is Marla Jean Big Boy. She grew up on the Pine Ridge Reservation in South Dakota. I remember when I was young, we'd go to one of the border towns, and my grandma would say, stay in the car, lock yourself in, don't get out of the car, I'm going into the trading post, because they're going to steal you. Really? Yeah. What we found is that on every reservation... My name is Michael Evan Nohart. I'm a full-blood punk papa of Lakota from Standing Rock Reservation. You couldn't not find a family that didn't know of a child in placement. He took social services, came and took me and my sister and told my mother and dad that they were taking us into Bowbridge for physical check-up.

11:04And they never brought us back. Wow. Michael says that his dad spent the next 30 years looking for him. In any case, Bert would ask these people that he was interviewing, what reason did the social workers give you for taking the child? And the answer is that he got ran the gamut. Conditions of poverty, alcoholism. Overcrowding. Maybe they don't have adequate ventilation in the house. No indoor plumbing. But in most cases, he says, the reasons wouldn't have stood up in court. They would put papers in front of them and they would sign. They didn't know what they were signing. Some families. If they could, they tried to fight it.

11:39But they usually couldn't afford to. Look, the tribal people are poor. So we began to do a statistical collection of data, state by state. Asking how many Indian kids are in foster care. Foster care and adoptive placement and institutional placement, juvenile facilities. And what he arrived at at the end of that analysis is a pretty shocking number. About one-third of Indian children were in out-of-home placements in non-Indian settings. One-third? 25 to 35 percent of Indian children nationwide were in out-of-home placements. That's a real number? That is a real number. That's the number you see cited again and again.

12:20Nobody connected the dots. Everybody thought that it was their own personal tragedy. Nobody realized that this was a pattern and a practice that was decimating these tribes. Wait a second. How would this happen on this scale? I mean, is this just a bunch of social workers making the same decision independently, or is it like a policy? Well, this is basically social workers very much acting in the spirit of the day. Because you have to keep in mind that in the 50s and 60s, you have all these government policies that are put in place, whose entire purpose is basically to try to once and for all solve this Indian problem that's gone on and on.

13:04You've got this guy in 1953 who's a senator from Utah who starts basically trying to terminate the tribes. You mean like take away their sovereignty? Yeah. He goes tribe to tribe, trying to convince them or force them, tell them there's no way out of it. He argues that this will be best for all of them. I remember this. This was like out of E Pluribus Unum, like to integrate them into the whole. They will melt into the wider culture. That's what will save them. Part of this was part of the social workers that were working in this period, they were working under the auspices of this thing called the Indian Adoption Project, which was very much about that idea of, like, you take these kids from their poor conditions and you connect them directly to white families that are looking to adopt.

13:50So part of this was definitely top-down. Very much. In any case, the end result of this is that a third of these kids are being taken away. There were literally communities where there were no children. That's Terry Cross. He's the executive director of the National Indian Child Welfare Association. In Minnesota, there were communities where there were no children. In Alaska, there were communities where there were no children. I mean, what is a culture except, you know, the ideas and traditions that you pass on to your kids? That's Marsha Zugg again. If you are hemorrhaging your children, then you're going to disappear.

14:27So what do you do? Well, it's too massive a problem if you're trying to fight all these removals of kids on a case-by-case basis. Forget about it. A national law is needed. So Burt spent years walking the halls of Congress, literally. Endless lobbying congressional hearings until finally. The Indian Child Welfare Act is passed by Congress in 1978. So it does a lot, but basically when it comes to adoptions. ICWA has placement preferences. So the first preference would be with the immediate family. So you're removed from mom, you're placed with dad, or maybe with grandmother. If they say no. Second preference would be someone else in the tribe.

15:05And the third is any other American Indian. Wow. Any other? Yeah. And then after that, then the child could be placed with, you know, another family. Well, so if you're white and you're trying to adopt an Indian kid, you have a lot of roadblocks. Yes. But by and large, most of us think that ICWA was probably the best federal Indian law ever passed. It did the most to help Indian tribes, respect tribal sovereignty, and really fulfill the United States' trust relationship with American Indian people. But now, because of this case, that law may be in jeopardy.

15:57We'll continue in a moment.

16:08I'm Chad Abumrad. I'm Robert Quilwich. This is Radiolab. Today, a look at a Supreme Court case that may determine the future of a law called the Indian Child Welfare Act, or ICWA. The story comes from producer Tim Howard. Back to him. So, in April, I went to this conference in Tulsa. The Board of Directors, Council of Elders. Big room. There were 700 people there. Most of them work in child welfare organizations in Indian communities around the country. There was some traditional Cherokee drumming, there were films, workshops, and all anybody could talk about was this case. But there is no issue bigger now in how the Baby Veronica case may affect the Indian Child Welfare Act.

16:51So please, please do keep Baby Veronica and her family in your prayers. Everybody was on edge. Well, I'm really worried in this situation. This is Terry Cross again. He's one of the organizers. And he told me that, look, the Capobiancos... I feel for them. But in what world is it okay for one family who feels they were damaged by a law to put thousands of other children at jeopardy for their own hurt? I can't imagine a world where that's okay. Well, I mean, it's hard for us to say that because, you know, that's not what motivated us. Our daughter is what's motivating us. How we feel, we just feel that in this case, it was a beautiful law that was put into place to prevent the breakup of families, Indian families.

17:45And I just think it wasn't really supposed to be applied to a situation like ours. They say, we get that there's a huge historical wrong here, but what does that have to do with us? It reminds me of arguments that happen over affirmative action, weirdly. Definitely, but here the details are so different. You know, they say this is a law that was created to protect Indian families, right? But here you've got a Hispanic birth mom, you've got a white couple, and then you've got a dad who's out of the picture. So you're not actually protecting an Indian family, you're forcibly creating a new one. Absolutely.

18:20And in the process, you're breaking up a loving home. I don't think that was the intent of the law ever. My personal opinion is that ICWA has outlived its usefulness and causes more problems than it solves. This is Mark Fidler. I'm one of the attorneys for Matt and Melanie Capobianco. He also happens to be Native American himself. I'm an enrolled member of the Turtle Mountain Band of Chippewa Indians. That's a reservation up in North Dakota, right on the border with Canada. But, you know, so I kind of had a foot in two cultures, so to speak. I'd go back to the res in the summer. Mark actually used to argue the other side, that the most important thing was to keep Indian families together, and that Indian kids...

19:01Who were placed in non-Indian homes would experience emotional, psychological harm by being raised outside of the culture. But then... I had a case in, I think it was 94. Which gave him pause. Ah, boy. That's a good word. It was a case in which this young American Indian girl, Sierra, wanted to be adopted by this white couple, and Mark opposed it. Even though in my heart it hurts, I knew it was probably not the right thing for the child. He won the case. She was removed from the couple's home. And as Sierra would tell you herself, she had a really rough life. She bounced in and out of more than 20 foster homes ran away many, many times and got into serious trouble with the law And it always nagged me Mark says even though the tribes have suffered that doesn't change the fact that if you take a kid out of a loving home you're going to cause her real harm And he says that's why he took this case Because the Capobiancos, you know, they are among the most loving people I know He says they did everything you could ask They're just amazing people.

20:11They met the birth mother, Christy Maldonado, when she was pregnant. They got to know her. She felt a connection to them. That's Lori McGill. She's represented Christy since last year. And they were also willing to have an open adoption. Yeah, we still have a relationship with Christy. We love her to death. And Christy gave birth to Veronica. They were there with her in the delivery room. Yeah, I mean, the day she was born, I cut the cord. Matt Capobianco cut the umbilical cord. That's such a degree of intimacy that I find. I know. I mean, having given birth twice myself, the idea that anyone other than my husband would be in the room is kind of scary.

20:50But it gives you some idea of how she felt about the Capobiancos. Now, as for Dustin Brown, Veronica's biological dad, a couple months before she was born, Christy, the birth mom, sent him a text message asking him. If he wants to pay child support or he wants to waive his rights. And he replied, I'll waive my rights. Rather than pay a dime in child support. Well, there's a contrast. So in the beginning, it sounds like he did not want to be a dad. Yeah, and then actually a few months later, he seems to make it even more official by signing a form agreeing to the adoption. And then he changes his mind?

21:27Yeah, you know, and obviously I was wondering, what was he thinking? Because you can't avoid the fact that how you feel about this guy is going to influence how you feel about this law. And so I was trying to get in touch with him. I was pestering his lawyers. You know, will he do an interview? This went on for weeks. And they were basically like, he doesn't want to do interviews. He doesn't want to talk. Yeah, so you didn't get him.

21:56Yeah, I got him. Good. So shortly before we were going to wrap this story, I get an email saying, come to Oklahoma. So I went. He lives in this one-story house on this tree-lined block in a small town north of Tulsa. Hey, how's it going? How we doing? Doing good. Okay. What does he look like? He's just a very normal-looking guy, a little bit of an army haircut. He had a stash that night when he got Veronica, but he's clean-shaven now, big smile. So anyway, we go inside and the first thing he tells me is that Veronica is not there. She was out with his wife, Robin. Turns out he's remarried. In any case, test, test, test.

22:47All right. We sat down at the kitchen table and started talking. Do you mind just, do you mind introducing yourself and tell me like where we are? I'm Dustin Brown. We're in Noa, Oklahoma. This is my house. I'm part of the Wolf Clan. Wolf Clan is one of the seven Cherokee clans. And my name Dustin means brave warrior in Cherokee. And actually, you know, join the army up and go over to Iraq. I'm like, wow, I'm here for the Cherokees. I'm the brave warrior out in, you know, desert. He's been a registered member since he was a little kid. His parents were members and their parents. And he said he's proud to be Cherokee basically because it means that he's from where he lives.

23:29It's a big deal to me. So anyway, we started talking about the case, and, you know, it gets complicated. There's a lot of detail. I'm not going to go into all of it. But basically, he and Christy Maldonado, the birth mom. We've known each other since we were 16. We've dated off and on. 2008, he joins the Army. Basic training. He lives on a base. It's four hours away. And Christmas time that year, he basically says, let's get serious. I got down on one knee and proposed to her and said, hey, I want to bring you into my life. She said, okay, that's just great. Almost a month later, she sent me a message saying that she was pregnant.

24:08I was excited. I mean, to have children with her was one of the things I wanted to do at that time. Told her I can move you and your kids up to the base. Housing was going to be free on base. There were schools for her kids. She could get a job right there on base, you know. Everything was taken care of. I mean, everything was going great, you know. And then pretty quickly, the whole thing just soured. It's impossible to know exactly what happened, but Christy says that Dustin just simply didn't offer any support. He says that he did, or he tried to at least, but shortly after she got pregnant, she basically just shut him out, stopped taking his calls.

24:47I didn't get no phone calls, no text messages, nothing from her out of the blue, and I'm just like, well, what's going on? He says that he tried to get in touch with her. Texting her up, trying to call her. Still no answer. There's a couple times that I've went back to the bars that I went to her house. Drove those four hours from the base. Knocked on her door. I could hear, you know, voices in the house. It sounded like her and the kids. They wouldn't answer the door for me. And then one day he says. She sent me a message saying, I don't want to be with you no more. And three weeks after that.

25:17She's like, well, I want you to sign your rights over.

25:23his parental rights. Would you sign your rights over? You guys are texting this or are you talking? The whole time we're text messaging this because she wouldn't talk to me. What did you think it meant? To me, I just thought she wanted me to sign my rights over to her. And I'm like, this is something I really don't want to do. He says she kept texting him that question. And looming in his mind was the fact that he just learned. That we were going to be going to Iraq to do a radar mission. And he starts to wonder, what's the right thing to do here? You know, if there was one of them chances I wasn't going to come back, I wanted to make the right choice and let the mother be that sole parent.