Here’s a really wrenching story of a very recent case from South Carolina. Matt and Melanie Capobianco tried IVF a number of times but could never conceive a child. They decided to go through adoption. Christina Maldonado was pregnant and willing to place her child with them. When her daughter, Veronica, was born in September 2009, Matt Capobianco was there to cut the cord. Though it doesn’t say so, I’d assume that from the time she left the hospital, Veronica lived with the Capobiancos.
When Veronica was four months old, the Capobiancos learned that her biological father, Dusten Brown, filed for custody.
Now I don’t know enough about the law of South Carolina to know what kind of chance he would have had in an ordinary case–I’ve written about other instances where a biological father who does not assert right immediately loses those rights. But Brown had a special factor that worked to his advantage–he is an enrolled member of the Cherokee tribe and this entitles his daughter to enrollment. Based on this fact, the Cherokee Nation became involved in the case, invoking the Indian Child Welfare Act (ICWA).
ICWA is a response to a terrible chapter in American history. For years, Indian children were removed from their tribes and placed in homes or schools. It’s hard to look back on this as anything but an effort to annihilate the tribes themselves. In order to ensure this does not happen in the future, ICWA gives tribes the right to participate in proceedings involving children eligible for tribal membership. The bottom line here is that it is very difficult to adopt a child who is eligible for tribal membership and Veronica was just such a child and Brown won his case.
But all of this took time, during which Veronica lived with the Capobiancos. It looks to me like this was the only home she ever knew until December 31, 2011. That’s the date on which Brown and his family assumed custody of the child.
I don’t mean to argue against ICWA just here–there’s something horrific about the systematic effort to decimate the tribes of the native people and surely it is essential to put safeguards in place. But it is also hard not to feel terrible about how things have played out here. While the articles I linked to focus mostly on the obvious pain experienced by the Capobiancos, I find myself thinking, too, about Veronica.
There is little (or maybe no) doubt in my mind that the Veronica and the Capobiancos were child/parent in all the psychological and social senses of the world. Now, in a way no two year old can understand, that relationship has been completely sundered. It’s terrible for a child to lose parents, but given the vagaries of life, sometimes it does happen. Death and disaster intervene. What’s awful about this situation is that it seems like a man-made (or law-made) accident.
Maybe the basic events were unavoidable here, but could it have been managed better? Was it clear from four months in that Brown would prevail? Could the courts have acted more quickly? Little or nothing is gained by extending the time that Veronica spent with the Capobiancos if in the end she was going to be taken from them.
Don’t get me wrong–I understand why the Capobiancos might cling at any chance that it would work out. They’ve suffered a terrible loss. But I wonder if in hindsight they should have been able to hold on for so long. Sadlly there are many contexts in which it is the passage of time that compounds the problems created in difficult fights over parentage.
I don’t mean to suggest that courts should rush through these cases. Careful decision making requires time. But I wonder whether you could give cases enough time for proper briefing and deliberation and still avoid the years that seem to pass in so many instances.
I wonder, too, about what Veronica will make of all this when the day comes that she can understand. I’m sure no one can say for sure ,but Veronica’s parent or parents have some difficult explaining to do.