Technology
Adoptive Couple v. Baby Girl
In this episode of Radio Lab, we delve into the heart-wrenching case of 'Adoptive Couple v. Baby Girl,' exploring the complex intersection of adoption, indigenous rights, and legal framework...
Adoptive Couple v. Baby Girl
Technology •
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Interactive Transcript
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Hey, Radio Lab. This is Lulu. Today, we're bringing you a story that begins with a very personal
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heartbreak. One that when you examine it, pull it up. You see is attached to this web of
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complex laws and decisions. It's this one very personal story with the potential to affect
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3 million people. Just a note that we originally reported this back in 2013 and in it, people use the
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word Indian to refer to indigenous Americans. That of course is a term that some folks who are
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indigenous use to describe themselves, but not all. So we want to acknowledge that one term is
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being used here to describe a huge, culturally diverse group of people. I'm very excited for you
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to hear this piece, which as you'll see is still just as relevant today. So here we go. Adoptive
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couple V baby girl. Yeah, wait, wait, wait, you're listening to Radio Lab from W and Y.
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Hey, I'm Chad. I'm Ron. I'm Robert Kylwitch. This is Radio Lab, the podcast. And today on the
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podcast, we are going to venture into new territory for us. We have the story of a little girl who
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became a very, very big deal. How big a deal did this little girl become a very big deal to
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about 500 something nations? They're on 500. No, there are. Look, I've seen the front of the U.A.
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No, there are. Just look, okay, it's going to make sense in about 30 seconds. That's a tease. It
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isn't ultimately even that important to the story. So just you and I are going to sit right here and
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behave ourselves and Tim Howard, our intrepid producer, is going to tell us this story. So I first, I
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first heard about this story. I saw it listed on the Supreme Court docket for cases that they
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were going to be hearing this spring. Well, the name of the case is Baby Girl versus Adoptive Couple.
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Actually, in strict legal parlance, it's called Adoptive Couple V Baby Girl. It's not a particularly
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catchy name. I gotta say it's a weird name though. It's hard to, it's hard to picture. Yeah. So this
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is Marsha Zug. Associate Professor of Law at the University of South Carolina. And she wrote
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about this case in slate. And it stood out to me because, you know, it just seemed odd at first
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that this would even be a Supreme Court case. It seemed more like a straightforward custody case.
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Right. But when you dig in, there's a lot going on here.
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Who says text messages? State law, errors, Supreme Court.
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Christopher Columbus. Christopher Columbus. And it is not straightforward at all.
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Apparently not. So let me walk you through it the way that I learned about it. The story begins
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with a couple. Matt and Melanie Capobionco, they are a couple who live down here in South Carolina.
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He's a technician at Boeing. She's a developmental psychologist.
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Nice middle class white couple. They're in their late 30s. And they really wanted to have a kid.
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They had gone through, you know, infertility problems. It wasn't working out. So eventually.
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They decided to adopt. Enter a woman named Chrissy Maldonado. She lives about a thousand miles away.
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I believe she's in Oklahoma. She's in her 20s. Already has a couple of kids. She's pregnant and
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decides that she wants to give the baby up for adoption. And she picks the capobioncos.
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And everyone seems happy. The capobioncos get the baby and they name her Veronica.
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We used to call her Boss Lady. Not a lot. Most of the time of his family.
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Our family called her that. Boss Lady. Boss is everybody around.
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This is Matt and Melanie, Capobionco. But you were happy to do it. She told you to do.
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She's just the poster child for a proud father, you know. But it's just as wrong as it could have possibly gone.
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This is basically how it unfolded on TV news.
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The broken session on the docket today, a young child ripped from the arms of the only parents
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she's ever known. And turned over to the Native American biological father she has never met.
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A man Veronica had never even met. What happened is when Veronica was two. Her biological dad turned up
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seemingly out of nowhere. And according to these clips had men around for two years, had abandoned
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the child and now he's asking for custody and he gets it. And the court is making them stand by
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and just let it happen. Wait, why? Well, it's mainly because of this law. Indian Child Welfare Act.
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The 1978 Indian Child Welfare Act. Dustin the dad, he's Cherokee. He's a part of the Cherokee
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Nation. So that makes his daughter Veronica eligible to be Cherokee. And the law is designed to keep
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Indian families together. It gives preference to Indian kids staying with Indian parents. So even
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though he'd actually signed papers agreeing to the adoption, he was able to invoke this law
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and get custody of Veronica. He signed his custody way and he was able to then use his
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Cherokeeness to reverse the rights he signed away. Just hang on. This is all going to make sense.
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Okay, but he takes the kid is what you're saying. Yeah. New Year's Eve 2011 with cameras rolling,
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Dustin Brown drives his pickup truck into Charleston. Matt and Melody Cabo Bianco clutched to two-year-old
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Veronica. This could possibly be the last time they hold their baby as her mom and dad.
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And that evening Veronica is transferred to Dustin. I didn't feel like we had enough time for
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to be not afraid when she's. We love to exchange it. Yeah, when she's I mean to her they're complete
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strangers and I can't imagine that she's not going to be terrified. And as Dustin gets into the
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truck holding his two-year-old daughter for the first time, the reporter asks him,
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and this is all you hear from him. I think so. We need to give her a chance. Have you ever seen the child
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before? They declined any further comment on camera. He gets into the truck with Veronica
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and they drive away, back to Oklahoma. Can I can I ask you what was the when was the last time that
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you spoke with Veronica? The day after the day after the transfer. Transfer. Oh, a phone call?
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Yeah, we spoke to her for about two minutes and we uh told her we loved her and she said,
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I love you mommy and I love you daddy and I don't know, just a few minutes and
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but that was that that was the last time we were able to be in touch. And that was 16 months ago.
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And how long was Veronica with them again before this happened? About two years. Oh man,
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that's hard. Yeah. And you know when I first heard about this case, that's basically the
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the only way I thought of it, you know, is just yeah, that's a crazy injustice. That's basically all I
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saw in it. I mean if you're someone who has no background in this, then you see a case like the baby
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Veronica case and you're like, whoa, where's this coming from? How can this possibly be okay?
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That's Marshall's Zug again. And her article for Slate kind of caught me off guard because the title
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was doing what's best for the tribe. Two-year-old Veronica was ripped from the only home she's ever known.
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The court made the right decision. Yeah. So I called up to ask her like what do you mean by that?
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So one of the things that's I think important to realize is that
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the problems that Iqua was intended to address didn't stop happening that long ago.
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And this is where the story turned into the biggest rabbit hole I've ever fallen into.
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What did she tell you? I mean, Marshall basically said the only way you can begin to wrap your mind
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around what's right and what's wrong in this story is to go back to the 60s.
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How are you doing? How are you Tim? Great to meet you. And to this guy.
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Herhosh. I'm a lawyer. He lives in Long Island now, which is where I visited him.
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But in 1967. The fall of 1967. I was on the staff of the association on American Indian affairs.
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Sort of a legal advocacy group for American Indians. And he traveled all over working with different
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tribes. And one day he gets a phone call from this guy, Lewis Goodhouse. The tribal chair of the
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Devil's Lake Sioux tribe in North Dakota. And this guy says I really need your help.
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He said there was a child. A Devil's Lake kid, one of ours, that was just abruptly taken away by
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social workers. The Benson County North Dakota Social Services Agency came in and they took
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little Ivan Brown away from his grandmother. He was six. Or was there stated reason for taking Ivan
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away neglect because what because grandma wasn't wasn't around. No actually bird says that the
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social workers were looking for that classic nuclear family biological mother biological father
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children. So when they saw him with an older relative but no mom or dad they thought uh-oh
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and they took him away. The tribal council was extremely upset by this. They wanted to fight a
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bird. Took the case fought it in court. We won that case by the way. Mrs. Alex forney,
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she got Ivan back after somewhat protracted battle. But he began to wonder how widespread is this?
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So from 67 to the end of 68 into 69. He visited tribe after tribe after tribe. Doing interviews and he
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says that everywhere he went he would hear these stories. I remember it's dead with place. This is
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Deb Wells. She's a member of the Rosebud Sioux tribe and when she was 10 years old a car
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pulled into her driveway. They come driving in social workers and they got out of the car and I told
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my brothers and sisters I said go high and they had to drag it out from underneath bed because we got
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around and got in the house. But then they took it to that's bluff and put it in the foster home.
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This was just part of every native family's history. This is Marla Jean Bigboy. She grew up on the
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Pine Ridge Reservation in South Dakota. I remember when I was young we'd go to one of the border towns
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and my grandma would say stay in the car, lock yourself in, don't get out of the car and going
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into the trading post because they're going to steal you. Really? Yeah. What we found is that on every
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reservation, name is Michael Evans No Heart. I'm a full blood pump out of Dakota from Standing Rock
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to Reservation. You couldn't not find a family that didn't know of age child in placement.
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The social services came and took me in my sister and told my mother and dad that they were
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taking us into the yogurt for physical kick-up and they got out of the back.
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Wow. Michael says that his dad spent the next 30 years looking for him. In any case,
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Bert would ask these people that he was interviewing, what reason did the social workers give you for
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taking the child and the answers that he got ran the gamut? Conditions of poverty, alcoholism,
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overcrowding, maybe they don't have adequate ventilation in the house, no indoor plumbing,
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but in most cases he says the reasons wouldn't have stood up in court. They would put papers in
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front of them and they would sign, they didn't know what they were signing. Some families,
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if they could, they tried to fight it, but they usually couldn't afford to. Look, the tribal people
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are poor, so we began to do a statistical collection of data, state by state. Asking how many
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Indian kids are in foster care? Foster care in adoptive placement and institutional placement,
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juvenile facilities. And what he arrived at at the end of that analysis is a pretty shocking number.
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About one third of Indian children were in out of home placements in non-Indian settings.
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One third? 25 to 35% of Indian children nationwide were in out of home placements.
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That's a real number? That is a real number. That's the number you see cited again and again.
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Nobody connected the dots. Everybody thought that it was their own personal tragedy. Nobody
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realized that this was a pattern and a practice that was decimating these tribes. Wait a second,
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wait a second. How would this happen on this scale? I mean like, is this just a bunch of social
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workers making the same decision independently or is it like a policy? Well, this is basically
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social workers very much acting in the spirit of the day because you have to keep in mind that in the
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50s and 60s, you have all these government policies that are put in place whose entire purpose is
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basically to try to once and for all solve this Indian problem that's gone on and on. You've
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got this guy in 1953 who's a senator from Utah who starts basically trying to terminate the
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tribes. You mean like take away their sovereignty? Yeah, he goes to tribe to tribe try to convince them
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or force them tell them they have no there's no way out of it. He argues that this will be best for
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all of them. I remember this. This was like out of Ippler, but it's unam like to integrate them
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into the whole. They will melt into the wider culture. That's what will save them. Part of this was
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part of the social workers that were working in this period. They were working under the auspices
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of this thing called the Indian adoption project which was very much about that idea of like,
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you take these kids from their poor conditions and you connect them directly to white families that
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are looking to adopt. So part of this was definitely top down very much. In any case, the end result
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of this is that a third of these kids are being taken away. There were literally communities where
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there were no children. That's Terry Cross, he's the executive director of the National Indian Child
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Welfare Association. In Minnesota there were communities where there were no children. In Alaska,
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there were communities where there were no children. I mean, what is what is a culture except
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the ideas and traditions that you pass on to your kids? That's Marcia Zugigan. If you are
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hemorrhaging your children, then you're going to disappear. So what do you do? Well, it's too
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massive a problem if you're trying to fight all these removals of kids on a case-by-case basis,
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forget about it. A national law is needed. So, Bert spent years walking the halls of Congress
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literally. Endless law being congressional hearings until finally. The Indian Child Welfare Act is
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passed by Congress in 1978. So it does a lot, but basically when it comes to adoptions,
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the Iqua has placement preferences. So the first preference would be with the immediate family.
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So you remove from mom, your place with dad, or maybe with grandmother. If they say no,
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second preference would be someone else in the tribe. And the third is any other American
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Indian. Well, any other. Yeah. And then after that, then the child could be placed with, you know,
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another family. Well, so if you're white and you're trying to adopt an Indian kid,
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you have a lot of rope walks. Yes. But by and large, most of us think that Iqua was probably
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the best federal Indian law ever passed. It did the most to help Indian tribes,
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respect tribal sovereignty, and really fulfill the United States' trust relationship
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with American Indian people. But now, because of this case,
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that law may be in jeopardy.
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We'll continue in a moment.
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America is changing and so is the world. But what's happening in America isn't just the
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cause of global upheaval. It's also a symptom of disruption that's happening everywhere.
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I'm Asma Khalid in Washington DC. I'm Tristan Redman in London and this is the global story.
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Every weekday we'll bring you a story from this intersection where the world and America
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I'm Chad I'm Ron. I'm Robert Kilwich. This is RadioLab today.
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But look at a Supreme Court case that may determine the future of a law called the Indian Child
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Welfare Act or Iqua. The story comes from producer Tim Howard back to him.
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So in April I went to this conference in Tulsa. The Board of Directors, Council of Elders.
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Big room there are 700 people there. Most of them work in child welfare organizations
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in Indian communities around the country. There was some traditional Cherokee drumming,
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there were films, workshops and all anybody could talk about was this case. But there's no issue
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bigger now and how the baby Veronica case may affect the Indian child welfare act.
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So please, please do keep baby Veronica and her family in your prayers.
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Everybody was on edge. Well, I'm really worried in this situation.
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This is Terry Cross again. He's one of the organizers and he told me that look the Kapo Biancos.
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I feel for them but in what world is it okay for one family who feels they were damaged by a law
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to put thousands of other children at jeopardy for their own hurt. I can't imagine a world where that's
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okay. Well, I mean it's hard for us to say that because you know that's not what motivated us.
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Our daughters what's motivating us? How we feel we just feel that in this case it was a
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beautiful law that was put into place to prevent the breakup of families,
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Indian families and I just think it wasn't really supposed to be applied to situation like
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hours. They say but we get that there's a huge historical wrong here but what does that have
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to do with us? Reminds me of arguments that happen over affirmative action weirdly.
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Definitely but here the details are are so different. You know they say this is a law that was
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created to protect Indian families right. But here you've got a Hispanic birth mom,
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you got a white couple and then you got a dad who's out of the picture so you're not actually
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protecting an Indian family you're forcibly creating a new one. Absolutely. And in the process
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you're breaking up a loving home. I don't think that was the intent of the law ever.
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My personal opinion is that Equa has outlived its usefulness and causes more problems than
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its all. This is Mark Fiddler. I'm one of the attorneys for Matt and Melanie Kapo Bianco. He also
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happens to be Native American himself. I'm an enrolled member of the Turtle Mountain Band of
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Chipway Indians. That's a reservation up in North Dakota right on the board with Canada. You know
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so I kind of had a foot and two cultures so to speak. I go back to the rest in the summer and
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Mark actually used to argue the other side that the most important thing was to keep Indian families
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together and that Indian kids who were placed in non-Indian homes would experience emotional
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psychological harm by being raised outside of the culture. But then I had a case in I think
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it was 94 which gave him pause. Ah boy that's a good word. It was a case in which this young
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American Indian girl Sierra wanted to be adopted by this white couple and Mark opposed it.
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Even though on my heart of heart I knew it was probably not the right thing for the child.
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He won the case. She was removed from the couple's home and um,
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Sierra would tell you herself she had she had a really rough life.
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She bounced in and out of more than 20 foster homes ran away many many times and got into serious
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trouble with the law. And it always nagged me. Mark says even though the tribes have suffered
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that doesn't change the fact that if you take a kid out of a loving home you're going to cause
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her real harm. And he says that's why he took this case. Because the couple of young girls,
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you know they are um, among the most loving people I know. He says they did everything you could
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ask. They're just amazing people. They met the birth mother, Kristi Moldonato when she was pregnant.
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They got to know her. She felt a connection to them. That's Laurie McGill's. She's represented
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Kristi since last year. And they were also willing to have an open adoption. Yeah we still have a
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relationship with Kristi. We love it a death. And Kristi gave birth to Veronica. They were there
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with her in the delivery room. Yeah I mean the day she was born I cut the cord. Matt,
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Copapianco cut the umbilical cord. So that's such a degree of intimacy that I know. I know. I mean
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having given birth twice myself the idea that anyone other than my husband would be uh in the room
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is kind of scary but that it gives you some idea how she felt about the Copapiancos.
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Now as for Dustin Brown Veronica is biological dad. A couple months before she was born Kristi,
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the birth mom, sent him a text message asking him if he wants to pay child support or he wants to
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wave his rights. And he replied I'll wave my rights. Rather than pay a dime in child support.
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Well there's the contrast. So in the beginning it sounds like he did not want to be a dad. Yeah
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and then actually a few months later he seems to make it even more official by signing a form
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agreeing to the adoption. And then he changes his mind? Yeah you know and and obviously I was
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wondering what was he thinking because you can't avoid the fact that how you feel about this guy
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is going to influence how you feel about this law. Yeah. And so I was trying to get in touch with him.
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I was pestering his lawyers um you know will he do an interview this one on for weeks and and they
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were basically like he doesn't want to do interviews. He doesn't want to talk. Yeah yeah so you didn't get him.
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Yeah I got him. So shortly before we're going to wrap this story I get an email saying come to
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Oklahoma. So when? He lives in this one story house on this tree line block in a small town north of
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Tulsa. Hey how's it going? Doing good? Okay. What did it look like? He's just a very normal looking guy
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a little bit of an army haircut. He had a stash that night when he got Veronica but he's clean
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shaving now. A big smile. So anyway we go inside and the first thing he tells me is that Veronica is not
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there. She was out with his wife Robin. Turns out he's remarried. In any case,
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test test, all right we sat down at the kitchen table and started talking. Do you mind just you
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mind introducing yourself and tell me like where we are? I'm Dustin Brown. We're in Noah
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Oklahoma. This is my house. I'm part of the Wolf clan. Wolf clan is one of the seven Cherokee
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and my name Dustin meets Brave Warrior in Cherokee. And actually you know join the army up and
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go over to Iraq. I'm like wow I'm here for the Cherokee. I'm the Brave Warrior out in you know desert.
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He's been registered member since he was a little kid. His parents were members and their parents
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and he said he's proud to be Cherokee basically because it means that he's from where he lives.
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It's a big deal to me. So anyway we started talking about the case and you know it gets complicated.
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There's a lot of detail. I'm not going to go into all of it but basically he and Kristi Maldonado,
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the birth mom. We've known each other since we were 16. We've dated off and on.
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2008 he joins the army. Basic training. He lives on a base. It's for us away.
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And Christmas time that year he basically says let's get serious. Got down on one knee and proposed
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to her and said hey I want to bring you to my life. She said okay that's just great. And almost a
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month later she sent me a message saying that she was pregnant and I was excited. I mean I have
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children but her was one of the things I wanted her at that time. Told her I can move you and
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your kids up to the base. Housing was going to be free on base. There was schools for her kids.
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She could get a job right there on base. You know everything was taken care of. I mean everything
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was going great. And then pretty quickly the whole thing just soured. It's impossible to know
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exactly what happened but Kristi says that Dustin just simply didn't offer any support. He says that
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he did. He tried to at least but shortly after she got pregnant she basically just shut him out
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and stopped taking his calls. I didn't get no phone calls. No text messages. Nothing from
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rather blue and I'm just like what's going on. He says that he tried to get in touch with her.
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Texting her up trying to call her. Still no answer. There's a couple times that I've went back to
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the barge and went to her house. Drove those four hours from the base. Knocked on the door. I could hear
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voices in the house. It sounded like her and the kids. They wouldn't answer the door for me.
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Then one day he says she sent me a message saying I don't want to be with you no more. And three
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weeks after that she's like well I want you to sign your rights over. His parental rights. Would
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you sign your rights over? You guys are texting this? Who are you talking? The whole time we're
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text messaging this because she wouldn't talk to me. What did you think it meant? To me I just
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thought she wanted me to sign my rights over her and I'm like this is something I really don't want
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to do. He says she kept texting him that question and looming in his mind was the fact that he just
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learned. We were going to be going direct to do a radar mission so. And he starts to wonder what's
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the right thing to do here? You know if there was one of them chances I wasn't going to come back I wanted
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to make the right choice and let the mother be that sole parent. And he says that he's holding out hope
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that if he does make it back. We'll get back together and she'll just change her mind. Finally I just
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told her I was like all right I'll sign my rights over. Months go by. Christie has the baby. He
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says he doesn't know exactly when because they weren't speaking. But then six days before I had to
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go deploy the Iraq I get a phone call from some guy in Washington County. A process server. Said hey
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when he'd you sign the papers to sign your rights over. The guy directed him to an office right
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near the base went there and signed the paper and what did you think it meant. The whole time I thought
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I was just you know the paperwork for me sign. Kusty writes to her but when I got done sign the guy
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said he just signed your rights away instead of the biological mother. The baby's been up for adoption.
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She's been living South Carolina for four months.
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Dustin says this is the first moment that he realized what was actually happening. That the baby
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was up for adoption and he says that he had no idea he had just legally consented to it.
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I should have had a lawyer there with me at that point in time I grabbed the paper
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and the guy looked at me said if you're going to rip that up he said it's a
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it's not good to do that. That he could be arrested. And I said what do I gotta do?
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He said you get a lawyer which he immediately did. And that's why the courts have ruled in his
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favor because they say that from that moment he's clearly demonstrated that he wants to be her dad.
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I mean I never never once did I want to give up on my daughter. Never once did I want to give her up.
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I mean everybody says that I gave her up. I never wanted to. Now Mark and Laurie say that if this were
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any other guy. Any other man of any other race. The story would be over right about here. It's too late.
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He wouldn't have any rights at all. Under every state's laws, too late, under the federal constitution,
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too late, he rejected that opportunity to become a father. But he has one thing in his favor says
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Laurie. He happens to be Cherokee. And because of that fact. Not only can this sort of man object,
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but he gets an automatic transfer of custody to him. And Mark and Laurie see that as basically
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the worst kind of preferential treatment. And that is unbelievable. This is John Nichols. This is
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Shannon. Shannon Jones. They're two of Dustin's lawyers. And John says, okay, there's preferential
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treatment. Fine. But think about why all the protections of Iqua are there. These roadblocks are
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there for a reason. We went over this earlier, but you know, basically people are being manipulated
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out of their kids. And while you might like to think that that's ancient history. Now fast forward
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to 2010. He says the same thing is happening in this case. And we have a registered member of the
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Cherokee Nation. We have his child being given up for adoption without his knowledge and without
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his consent. And they kept this adoption from him for months and then spring it on him six days
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before he leads the country. It looks to us like it was engineered to make sure he got served,
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but not in enough time to where he could put up a fight. I believe it was absolutely intentional.
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And Shannon suggests that they knew about Iqua they knew it would apply and they were trying
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to sidestep. There were so many errors. You just did a little air quotes on errors. Yeah, I did.
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Because I mean, like for example, there's this one important form where Shannon says that they
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went out of their way to make it look like Veronica is not Native America. Because it would be
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preposterous argument in the form. Mark and Laurie say the reason that nobody puts Cherokee
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in big bright flaming letters is simple. Christie herself is predominantly Hispanic. Dustin is
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predominantly Caucasian and is approximately 2% Cherokee. What? Did you say 2%? Yeah, Veronica
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herself would be a little bit over 1%. Wait, this whole thing is happening because he's only 2%.
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Well, she looked at changes things somehow. Well, yeah, but you have to keep in mind that Cherokee
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Nation doesn't care about the percentage of Cherokee in your blood. That's not how they
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determine their members. Being a member of the Cherokee Nation is like being a member of the United
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States. You are a citizen of the nation. You know, if if you're a parent of US citizen, you're
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automatically a citizen. That's Christy Nemo assistant attorney general for Cherokee Nation.
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If you're parents of Cherokee citizen, you're not automatically a citizen. But you can automatically
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apply. So it's based on direct lineage. But still, you're right because this is the argument
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that is most troubling to the tribes. Both Christy Nemo and Marsha Zug told me that if the Supreme
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Court ends up deciding that... Equa is unconstitutional because it really is race based,
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unconstitutional because it's a race based preference. It calls into question every single
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federal Indian law out. There goes Indian law. This is a case that they could use to do that.
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If Equa falls because it's unconstitutional, it could have a crazy domino effect.
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Every single federal Indian law is premised on giving some sort of special treatment to Indians.
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What would that mean concretely if Indian law were to go away?
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It means that they're policing their court system, their education, anything they do as a sovereign
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nation. All of that just evaporates. A tribe would just become another group of people on some land.
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That said, this is not the likely outcome. Now, the Supreme Court will probably rule as narrowly
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as they possibly can. And as far as the tribes are concerned, they can do a lot of damage to the
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law without calling it unconstitutional. They could allow for this certain kind of exception to
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Equa, which would make it a lot easier for people like the Kapo Pioncos to adopt. So they could
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rule any number of ways. Yeah. And the thing is that it's all strangely connected to this
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three-year-old girl. Hold something for this. I'm thinking I'm just going to sign Kestra right
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so. So when she finally showed up, halfway through my interview with Dustin.
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Hi. It was kind of surreal. This is my daughter Veronica though. Daddy. Hey Veronica, I'm Tim.
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She's got dark curly hair. She's just ball of energy. She's definitely bullheaded.
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And within a minute, she's giving me a tour of every single object in her room.
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I mean, everything. Who's that? Army Bear. Army Bear. You got one of Daddy's dog tags on it?
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She was a very, very proud host. A few minutes later, she wanted to show me her geese.
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I don't think I've seen geese in a long time. About two. About two.
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Does her, does her reel? Geese? Yeah. She feeds them out of her hands.
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Come on. Come on.
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So what could happen to her? Well, if the Supreme Court said Dustin Brown shouldn't have qualified
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as father under Iqwa, what they do is they would send it back down to a South Carolina court.
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And then they would have this new best interest evaluation. Basically, like what's the best thing
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for her at this point? She's been with him now for about a year and a half. And so that actually
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might really change the calculation. You know, and honestly, hanging out with her and Dustin
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in the backyard is really easy to forget. All these people whose lives are just completely tangled
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up in this scene. But who aren't there? Christine Maldonado, the birthmall. She did not intend to give
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Veronica up. She intended to give Veronica a life. Matt and Melanie Kapo Bianco. I mean, this has
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been going on for so long. We've kind of been in a holding pattern for like, well, forever.
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We're just waiting and waiting and waiting. And of course, the hundreds of tribes who
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are just worried about their own kids. Pretty cool. Are you a good swimmer? Yes. I'm a bad swimmer.
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I'm a bad swimmer. You're not. You're a good swimmer. No. I'm a pretty bad swimmer. No, you're not.
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You're a good swimmer. How do you know I'm a good swimmer? I know you're a good swimmer. You're a good
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swimmer. You're a good swimmer. You're a good swimmer. You're a good swimmer. You're a good swimmer.
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So the Supreme Court came to a decision on this ruling about a month after we first aired this
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podcast. And here's what they said. Okay. So the Supreme Court ruled five four in favor of the
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adoptive couple, which is to say against the birth father. To Dustin Brown the dad lost. Right.
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It was like a 60 page ruling and not being totally confident what all the ramifications were.
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I just made some calls. Hi, how are you? I'm doing great. How are you? For example, I
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skyped with Marsha Zug, who you remember from the piece. She's a law professor at the University
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of South Carolina. Can you walk me through what this opinion means? Well, in terms of Veronica's
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placement had it come out the other way, then it would be over. She would stay with Dustin Brown,
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her biological father, end of story. What we have now is the court upholding the termination of
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his parental rights. So basically the Supreme Court ruled that Dustin Brown shouldn't have been
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allowed to invoke the Indian child welfare act because he didn't have what's called continuing
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custody of Veronica. Continuing custody. Right. They argue that this laws about preventing the
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breakup of Indian families and there was no Indian family here because they didn't live together.
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The dad and the daughter didn't live together. Right. So they don't scrap the Indian child welfare
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act. They just say that it shouldn't apply in a case like this. So that says narrow as you can get
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probably. Yeah. But I'm not crazy. But what happens now when the case where does the case go from
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here? Well, the Supreme Court kicked it back down to a lower court where you'd expect that they
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just award the couple Biancos custody. And that's what this guy said. So this is going back to
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South Carolina and to the State Supreme Court. This is to gender sing. He's a contributor at
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SCO-DISPLOG. And a council at the law firm Goldstein and Russell which practices before the Supreme
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Court. So the case goes to the South Carolina Supreme Court. And then Dale probably pushed the case
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down to their lower courts to make further decisions about whether the father has standing to
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object adoption and assuming he doesn't after this decision, you know, whether the adoption can
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just become finalized. So it sounds like the capo Biancos will ultimately get Veronica back.
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Possibly. Yeah. But Marcia says that there's a chance that it might not go that way. So now she's
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up for adoption, right? This is where it gets complicated. So because the Supreme Court said that
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Iqua still stands. It's still law. Okay. And they said that Veronica is an Indian child.
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She's Cherokee. Okay. That means that the South Carolina Supreme Court could decide that she is
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still covered by the Indian Child Well for Act. My understanding of the case, they're not saying that
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Iqua doesn't apply with the placement preferences. You remember the placement preferences? Yeah.
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The court decides that this is still an Iqua case. Then those preferences would kick in.
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So if you recall, according to Iqua, when an Indian child is placed for adoption, her extended family
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members would be given first preference, right? This is the Langell. Langell, Maldonado, Joseph,
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and Lynch professor of law, Seton Hall University School of Law. So in an Iqua case, the first
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preference is extended family. Second preference. Other members of the Cherokee tribe would be next
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in line. Third preference. Other Indian families. This means an Indian family from any of the 562
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federally recognized tribes. And then finally, any other family, such as the couple of young
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girls. So if the South Carolina Supreme Court decides that this is still an Iqua case. And if.
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The paternal grandparents, fellow petitions to adopt, they are at the very top of the mandatory
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placement preferences. And the couple of young girls are at the very bottom.
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So it's possible the couple of young girls might not get custody. Yeah. And Marcia even says that there's
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a chance that Dustin Brown himself. My guess is that Dustin Brown will come forward to adopt Veronica.
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His rights were terminated because he failed to support, but now we've got basically two years
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worth of evidence of him loving and supporting and taking care of her. And the court's not going to
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ignore that. It's just so crazy to think though that this guy who's the biological father
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may ultimately become the adoptive father. That's insane. Yes. Damn, this is complicated. I thought
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that they were supposed to get less complicated. You know, John Nichols, Dustin Brown's lawyer, he's
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said to me that this is totally uncharted waters. That he's never seen a case of this magnitude.
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Get decided by the Supreme Court and still be so open-ended. What's the time table on this?
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So John said that they expect to hear something from the South Carolina Supreme Court
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on Monday, July 8th, just laying out what the next steps are. So Tim, let me ask you, we spent
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a fair amount of time in the story examining the worst case scenario from the Tribes' perspective
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that this case could be used as a kind of Trojan horse to say that all of Indian law is an unfair
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race-based preference and therefore should be negated. I'm gathering from what you just said
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that that did not come to pass. No, that didn't happen. But there is this sense that they kind of
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planted a seed. For example, Justice Alito who wrote the ruling, he starts it off with mention
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of Veronica being 1.2% Cherokee, which is interesting because it sounds like he's about to make an
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argument for why this is a race-based preference and why it's a violation of equal protection.
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He's about to go nuclear if that's how he starts. Exactly, which to me was kind of baffling
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because why would you start off with this massive footprint and then leave a very small one?
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Is it to send a message? So, anyway, I asked Marsha what she thought about it. Why do you think
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they started it off that way? I've been thinking about that. It clearly sat wrong with at least some
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members of the court. I mean, when listening to the oral arguments, you could tell that.
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Robert's harped on it as well. It might have been that that was too big an issue to address in
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this case that they weren't ready to, but I think it's an indication that at least some members of
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the court have serious reservations about Indian law because they just don't see Veronica as an
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Indian child. To them, Indian is a race and she doesn't have enough blood to be of that race.
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It's a possible indication of where future Indian law cases are going to go.
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producer Tim Howard. Thanks Tim.
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Okay, it's Lulu again back in 2025. And as you just heard, there were sort of two categories of
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lingering questions. One about what would happen to Veronica and the other about the Indian Child
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Welfare Act. So ultimately, Veronica's case wound up in Family Court, which found that without
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the application of Iqua, Dustin could not intervene. One week after her fourth birthday,
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Veronica was returned to the Capobiancos in South Carolina. And a few months after that, Dustin and
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the Cherokee Nation announced that they would not continue pursuing the case. And Veronica's life
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became much more private after that away from all the attention of the courts. She's now 16 years old.
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As for the Indian Child Welfare Act, Iqua, it's faced repeated challenges in the past 12 years.
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The biggest one was in 2023, but at that time, the Supreme Court upheld Iqua 7-2.
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So for now, it is alive and affirmed at the national level. But not without continued challenges,
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including a case brought before the Minnesota Supreme Court just this year challenging Iqua again.
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That case has not been decided.
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Thanks so much for listening. We'll be back next week.
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Hi.
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Hi, I'm Sarah Michael, calling from Madison, New Jersey. And here are the staff credits.
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Radio Lab was created by Chad Abumrod and is edited by Soren Wheeler.
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