Adoptive Couple v. Baby Girl

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Speaker 1 Hey, Radiolab, this is Lulu. Today, we're bringing you a story that begins with a very personal heartbreak.

Speaker 1 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.

Speaker 1 Just a note that we originally reported this back in 2013, and in it, people use the word Indian to refer to Indigenous Americans.

Speaker 1 That, of course, is a term that some folks who are Indigenous use to describe themselves, but not all.

Speaker 1 So we want to acknowledge that one term is being used here to describe a huge, culturally diverse group of people.

Speaker 1 I'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.

Speaker 4 Wait, you're listening.

Speaker 7 You're listening

Speaker 7 to Radio Lab

Speaker 7 from

Speaker 8 WNYC.

Speaker 8 Hey, I'm Jadab Umran.

Speaker 10 I'm Robert Quilwich.

Speaker 8 This is Radio Lab. The podcast.

Speaker 11 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.

Speaker 14 How big a deal did this little girl become?

Speaker 11 A very big deal to about 500-something nations.

Speaker 16 There aren't 500 in there. No, there are.

Speaker 17 Look, I've seen the front of the U.S. No, there are.

Speaker 18 Just look, okay.

Speaker 11 It's going to make sense in about 30 seconds.

Speaker 8 Okay. That was just a, that's a tease.

Speaker 11 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.
And Tim Howard, our intrepid producer, is going to tell us the story.

Speaker 8 So

Speaker 20 I first heard about this story.

Speaker 21 I saw it listed on the Supreme Court docket for cases that they were going to be hearing this spring.

Speaker 2 Well, the name of the case is Baby Girl versus Adoptive Couple.

Speaker 25 Actually, in strict legal parlance, it's called Adoptive Couple v.

Speaker 2 Baby Girl. So it's not a particularly catchy name.

Speaker 27 I got to say, it's a weird name, though.

Speaker 15 It's hard to picture.

Speaker 28 Yeah.

Speaker 2 So this is Marcia Zug, Associate Professor of Law at the University of South Carolina.

Speaker 15 And she wrote about this case in Slate.

Speaker 28 And it stood out to me because, you know, it just seemed odd at first that this would even be a Supreme Court case.

Speaker 15 It seemed more like a straightforward custody case. Right.

Speaker 24 But when you dig in,

Speaker 2 there's a lot going on here. Crusades.
Text messages.

Speaker 8 State law.

Speaker 23 Heirs. Children.

Speaker 7 Supreme Court. Christopher Columbus.

Speaker 29 Christopher Columbus.

Speaker 19 And it is not straightforward at all.

Speaker 10 Apparently not.

Speaker 15 So let me walk you through it the way that I learned about it.

Speaker 28 The story begins with a couple.

Speaker 2 Matt and Melanie Capobianco.

Speaker 2 They are a couple who live down here in South Carolina.

Speaker 19 He's a technician at Boeing.

Speaker 28 She's a developmental psychologist.

Speaker 2 Nice middle-class white couple.

Speaker 9 They're in their late 30s.

Speaker 17 And they really wanted to have a kid.

Speaker 2 They had gone through, you know, infertility problems.

Speaker 31 It wasn't working out.

Speaker 2 So eventually they decided to adopt.

Speaker 27 Enter a woman named Christy Maldonado. She lives about a thousand miles away.

Speaker 8 I believe she's in Oklahoma.

Speaker 28 She's in her 20s, already has a couple kids.

Speaker 2 She's pregnant and decides that she wants to give the baby up for adoption. And she picks the Capo Biancos.

Speaker 2 And everyone seems happy.

Speaker 30 The Capo Biancos get the baby and they name her Veronica.

Speaker 33 We used to call her Boss Lady. Not a lot.
Most of the time, I was

Speaker 2 called her that. Yeah.

Speaker 13 Boss Lady.

Speaker 34 Bosses everybody around.

Speaker 16 This is Matt and Melanie Capo Bianco.

Speaker 33 But you were happy to do whatever she told you to do because she's just

Speaker 33 the poster child for a proud father, you know.

Speaker 33 But

Speaker 33 it's just gone as wrong as it could have possibly gone.

Speaker 8 This is basically how it unfolded on TV news.

Speaker 16 A man Veronica had never even met.

Speaker 28 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.

Speaker 25 And the court is making them stand by and just let it happen.

Speaker 23 Why?

Speaker 30 Well, it's mainly because of this law.

Speaker 2 The Indian Child Welfare Act, the 1978 Indian Child Welfare Act.

Speaker 19 Dustin, the dad, he's Cherokee.

Speaker 8 He's a part of the Cherokee Nation.

Speaker 22 So that makes his daughter, Veronica, eligible to be Cherokee.

Speaker 30 And the law is designed.

Speaker 36 To keep Indian families together.

Speaker 39 It gives preference to Indian kids staying with Indian parents.

Speaker 40 So even though he'd actually signed papers agreeing to the adoption, he was able to invoke this law and get custody of Veronica.

Speaker 11 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.

Speaker 28 This is all going to make sense.

Speaker 11 Okay, but he takes the kid, is what you're saying.

Speaker 8 Yeah.

Speaker 17 New Year's Eve, 2011, with cameras rolling, Dustin Brown drives his pickup truck into Charleston.

Speaker 35 Matt and Melody Capo Bianco clutch to two-year-old Veronica. This could possibly be the last time they hold their baby as her mom and dad.

Speaker 24 And that evening,

Speaker 28 Veronica is transferred to Dustin.

Speaker 43 I didn't feel like we had enough time for her to be not afraid when she's.

Speaker 44 We love her with strangers.

Speaker 43 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.

Speaker 15 And as Dustin gets into the truck, holding his two-year-old daughter for the first time,

Speaker 13 a reporter asks him, Do you think this is in her best interest?

Speaker 8 And this is all you hear from him.

Speaker 25 I don't think so.

Speaker 46 We need to give her a kiss.

Speaker 35 Have you ever seen the child before?

Speaker 2 They declined any further comment on camera.

Speaker 19 He gets into the truck with Veronica,

Speaker 25 and they drive away back to Oklahoma.

Speaker 28 Can I ask you

Speaker 9 when was the last time that you spoke with Veronica?

Speaker 33 The day after, um

Speaker 33 the day after the uh

Speaker 33 transfer. Transfer.

Speaker 48 Oh, a phone call.

Speaker 33 Yeah. We spoke to her for about two minutes and

Speaker 49 we uh

Speaker 33 told her we loved her and she said, I love you, mommy, and I love you, daddy and

Speaker 33 I don't know, just a few minutes and

Speaker 33 but that was it. That was the last time we were able to be in touch.

Speaker 50 And that was 16 months ago.

Speaker 34 And how long was Veronica with them again before this happened?

Speaker 22 About two years.

Speaker 51 Oh, man, that's hard.

Speaker 6 Yeah.

Speaker 50 When I first heard about this case, that's basically

Speaker 30 the only way I thought of it, you know, is just, that's a crazy injustice.

Speaker 15 That's basically all I saw in it.

Speaker 2 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? How can this possibly be okay?

Speaker 19 That's Marcia Zug again.

Speaker 52 And her article for Slate kind of caught me off guard because the title was, Doing What's Best for the Tribe.

Speaker 28 Two-year-old Veronica was ripped from the only home she's ever known.

Speaker 53 The court made the right decision.

Speaker 1 Yeah.

Speaker 28 So I called up to ask her, like, what do you mean by that?

Speaker 2 So, one of the things that's, I think, important to realize is that

Speaker 2 the problems that ICWA was intended to address didn't stop happening that long ago.

Speaker 39 And this is where the story turned into the biggest rabbit hole I've ever fallen into.

Speaker 8 What did she tell you?

Speaker 31 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.

Speaker 14 Burt, how are you doing?

Speaker 26 Great to meet you.

Speaker 7 And to this guy, Bert Hirsch.

Speaker 7 I'm a lawyer.

Speaker 24 He lives in Long Island now, which is where I visited him.

Speaker 14 But in 1967, the fall of 67, I was on the staff of the Association on American Indian Affairs.

Speaker 39 Sort of a legal advocacy group for American Indians. And he traveled all over working with different tribes.

Speaker 14 And

Speaker 16 one day, he gets a phone call from this guy, Lewis Goodhouse.

Speaker 14 The tribal chair of the Devil's Lake Sioux Tribe in North Dakota.

Speaker 17 And this guy says, I really need your help.

Speaker 14 He said, there's a child.

Speaker 19 A Devil's Lake kid, one of ours, that was just abruptly taken away by social workers.

Speaker 14 The Benson County, North Dakota Social Services Agency came in, and they took little Ivan Brown away from his grandmother.

Speaker 45 He was six.

Speaker 41 What was their stated reason for taking Ivan away?

Speaker 14 Neglect.

Speaker 11 Because what? Because grandma

Speaker 11 wasn't around?

Speaker 8 No, actually, Bird says that the social workers were looking for that classic nuclear family.

Speaker 14 Biological mother.

Speaker 29 biological father, children.

Speaker 16 So when they saw him with an older relative, but no mom or dad, they thought, uh-oh.

Speaker 39 And they took him away.

Speaker 14 The tribal council was extremely upset by this. They wanted to fight a battle about this.

Speaker 15 Burt took the case, fought it in court.

Speaker 14 We won that case, by the way.

Speaker 14 Mrs. Alex Fornia, she got Ivan back after a somewhat protracted battle.

Speaker 52 But he began to wonder, how widespread is this?

Speaker 14 So from 67 to the end of 68 into 69, he visited tribe after tribe after tribe, doing interviews.

Speaker 8 And he says that everywhere he went, he would hear these stories.

Speaker 55 I remember it vividly.

Speaker 13 This is Deb Wells.

Speaker 22 She's a member of the Rosebud Sioux tribe.

Speaker 17 And when she was 10 years old, a car pulled into her driveway.

Speaker 55 They come driving in, social workers, and they got out of the car. And I told my brothers and sisters, I said, go hike.

Speaker 55 And they had to drag us out from underneath the bed because we got around and got in the house. But then they took us to Scott's Bluff and put us in a foster home.

Speaker 5 It was horrible.

Speaker 56 This was just part of every native family's history.

Speaker 17 This is Marla Jean Big Boy.

Speaker 21 She grew up on the Pine Ridge Reservation in South Dakota.

Speaker 56 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.

Speaker 56 I'm going into the trading post because they're going to steal you.

Speaker 4 Really?

Speaker 54 Yeah.

Speaker 14 What we found is that on every reservation...

Speaker 57 My name is Michael Evan Nohart. I'm a full-blooded punk pop out of Lakota from Standing Rock Reservation.

Speaker 14 You couldn't not find a family that didn't know of a child in placement. The social services came and

Speaker 57 took me and my sister and told my mother and dad that they were taking us into Mowbridge for physical checkup, and they never brought us back.

Speaker 30 Wow. Michael says that his dad spent the next 30 years looking for him.

Speaker 45 In any case, Burt would ask these people that he was interviewing, what reason did the social workers give you for taking the child?

Speaker 19 And the answers that he got ran the gamut.

Speaker 14 Conditions of poverty, alcoholism, overcrowding. Maybe they don't have adequate ventilation in the house.

Speaker 53 No indoor plumbing.

Speaker 19 But in most cases, he says, the reasons wouldn't have stood up in court.

Speaker 14 They would put papers in front of them and they would sign. They didn't know what they were signing.

Speaker 48 Some families.

Speaker 14 If they could, they tried to fight it.

Speaker 39 But they usually couldn't afford to.

Speaker 7 Look, the tribal people are poor.

Speaker 14 So we began to do a statistical collection of data state by state.

Speaker 20 Asking how many Indian kids are in foster care.

Speaker 14 Foster care and adoptive placement and institutional placement, juvenile facilities.

Speaker 30 And what he arrived at at the end of that analysis is a pretty shocking number.

Speaker 25 About one-third of Indian children were in out-of-home placements in non-Indian settings.

Speaker 29 One-third?

Speaker 14 25 to 35% of Indian children nationwide were in out-of-home placements.

Speaker 11 That's a real number?

Speaker 40 That is the real number.

Speaker 19 That's the number you see cited again and again.

Speaker 14 Nobody connected the dots. Everybody thought

Speaker 14 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.

Speaker 11 Wait a second. How would this happen on this scale? I mean, like, is this just a bunch of social workers making the same decision independently?

Speaker 12 Or is it like a policy?

Speaker 8 Well, this is basically social workers very much acting in the spirit of the day.

Speaker 19 Because you have to keep in mind that in the 50s and 60s,

Speaker 8 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.

Speaker 58 You've got this guy in 1953, who's a senator from Utah, who starts basically trying to terminate the tribes.

Speaker 11 You mean like take away their sovereignty?

Speaker 40 Yeah, he goes tribe to tribe trying to convince them or force them, tell them they have no, there's no way out of it.

Speaker 8 He argues that this will be best for all of them.

Speaker 23 I remember this.

Speaker 14 This was like out of i pluribus unum, like

Speaker 14 to to to integrate them into the whole.

Speaker 16 They will melt into the wider culture.

Speaker 30 That's what will save them.

Speaker 40 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.

Speaker 11 So part of this was definitely top-down, very much.

Speaker 8 In any case, the end result of this is that a third of these kids are being taken away.

Speaker 49 There were literally communities where there were no children.

Speaker 15 That's Terry Cross.

Speaker 19 He's the executive director of the National Indian Child Welfare Association.

Speaker 49 In Minnesota, there were communities where there were no children. In Alaska, there were communities where there were no children.

Speaker 2 I mean,

Speaker 2 what is a culture except

Speaker 2 the ideas and traditions that you pass on to your kids?

Speaker 19 That's Marcia Zug again.

Speaker 2 If you are hemorrhaging your children, then you're going to disappear.

Speaker 59 So what do you do?

Speaker 14 Well, it's too massive of 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.

Speaker 14 So Burt spent years walking the halls of Congress, literally.

Speaker 30 Endless lobbying congressional hearings.

Speaker 41 until finally.

Speaker 2 The Indian Child Welfare Act is passed by Congress in 1978.

Speaker 27 So it does a lot, but basically when it comes to adoptions.

Speaker 2 The 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.

Speaker 53 If they say no.

Speaker 2 Second preference would be someone else in the tribe. And the third is any other American Indian.

Speaker 6 Wow.

Speaker 16 Any other?

Speaker 7 Yeah.

Speaker 2 And then after that, then the child could be placed with, you know, another family.

Speaker 11 Well, so if you're white and you're trying to adopt an Indian kid,

Speaker 11 you have a lot of roadblocks.

Speaker 18 Yes.

Speaker 2 But by and large, most of us think that ICWA was probably

Speaker 7 the

Speaker 2 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.

Speaker 19 But now, because of this case,

Speaker 40 that law may be in jeopardy.

Speaker 11 We'll continue in a moment.

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Speaker 14 I'm Jad Abum Radh.

Speaker 10 I'm Robert Quilwich.

Speaker 12 This is Radio Lab. Today,

Speaker 11 I'll look at a Supreme Court case that may determine the future of a law called the Indian Child Welfare Act, or ICWA.

Speaker 11 The story comes from producer Tim Howard. Back to him.

Speaker 48 So, in April, I went to this conference in Tulsa.

Speaker 46 The Board of Directors, Council of Elders.

Speaker 28 Big room, there are about 700 people there.

Speaker 28 Most of them work in child welfare organizations in Indian communities around the country.

Speaker 19 There was some traditional Cherokee drumming, there were films, workshops, and all anybody could talk about was this case.

Speaker 25 But there is no issue, big or now, in how the baby Veronica case may affect the Indian Child Welfare Act.

Speaker 46 So please, please do keep.

Speaker 46 Baby Veronica and her family in your prayers.

Speaker 59 Everybody was on edge.

Speaker 49 Well, I'm really worried in this situation.

Speaker 19 This is Terry Cross again.

Speaker 9 He's one of the organizers.

Speaker 4 And he told me that, look, the Capo Biancos.

Speaker 49 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?

Speaker 7 I can't imagine a world where that's okay.

Speaker 34 Well, I mean, it's hard for us to say that because, you know, that's not what motivated us.

Speaker 33 Our daughters, what's motivating us?

Speaker 2 How we feel.

Speaker 34 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.

Speaker 34 And I just think it wasn't really supposed to be applied to a situation like ours.

Speaker 28 They say...

Speaker 8 We get that there's a huge historical wrong here.

Speaker 8 But what does that have to do with us?

Speaker 11 It reminds me of arguments that happen over affirmative action, weirdly.

Speaker 19 Definitely. But here, the details

Speaker 28 are so different.

Speaker 8 You know, they say this is a law that was created to protect Indian families, right?

Speaker 25 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.

Speaker 19 So you're not actually protecting an Indian family, you're forcibly creating a new one.

Speaker 28 Absolutely. And in the process, you're breaking up a loving home.

Speaker 34 I don't think that was the intent of the law ever.

Speaker 44 My personal opinion is that ICWA has outlived outlived its usefulness and causes more problems than it solves.

Speaker 20 This is Mark Fidler.

Speaker 44 I'm one of the attorneys for Matt and Melanie Capo Bianco.

Speaker 28 He also happens to be Native American himself.

Speaker 44 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.

Speaker 44 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.

Speaker 44 Mark actually used to argue the other side that the most important thing was to keep Indian families together and that Indian kids who were placed in non-Indian homes would experience emotional psychological harm by being raised outside of the culture.

Speaker 44 But then I had a case in, I think it was 94.

Speaker 40 Which gave him pause.

Speaker 33 Ah, boy, that's a good word.

Speaker 29 It was a case in which this young American Indian girl, Sierra, wanted to be adopted by this white couple, and Mark opposed it.

Speaker 44 Even though in my heart of hearts I knew it was

Speaker 4 probably

Speaker 44 not the right thing for the child.

Speaker 31 He won the case.

Speaker 20 She was removed from the couple's home.

Speaker 44 And

Speaker 44 as Sierra would tell you herself,

Speaker 44 she had a really rough life.

Speaker 28 She bounced in and out of more than 20 foster homes, ran away many, many times, and got into serious trouble with the law.

Speaker 33 And

Speaker 44 it always nagged me.

Speaker 19 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.

Speaker 8 And he says that's why he took this case.

Speaker 44 Because the Capo Biancos, you know, they are

Speaker 44 among the most loving people I know.

Speaker 8 He says they did everything you could ask.

Speaker 44 They're just amazing people.

Speaker 17 They met the birth mother, Christie Maldonado, when she was pregnant.

Speaker 12 They got to know her.

Speaker 47 She felt a connection to them.

Speaker 19 That's Lori McGill's.

Speaker 28 She's represented Christie since last year.

Speaker 47 And they were also willing to have an open adoption.

Speaker 33 Yeah, we still have a relationship with Christie.

Speaker 15 We love her to death.

Speaker 47 When Christie gave birth to Veronica, they were there there with her in the delivery room.

Speaker 33 Yeah, I mean, the day she was born, I cut the cord.

Speaker 47 Matt Capapianco cut the umbilical cord.

Speaker 50 That's such a degree of intimacy that I.

Speaker 47 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, but it gives you some idea of how she felt about the Capabianco's.

Speaker 45 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.

Speaker 31 And he replied, I'll waive my rights.

Speaker 47 Rather than pay a dime in child support.

Speaker 11 Well, there's a contrast. So in the beginning, it sounds like he did not want to be a dad.

Speaker 16 Yeah, and then actually, a few months later, he seems to make it even more official by signing a form agreeing to the adoption.

Speaker 11 And then he changes his mind?

Speaker 45 Yeah, you know, and obviously I was wondering what was he thinking

Speaker 8 because you can't avoid the fact that how you feel about this guy is going to influence how you feel about this law.

Speaker 62 Yeah.

Speaker 39 And so I was trying to get in touch with him.

Speaker 62 I was pestering his lawyers.

Speaker 9 You know, will he do an interview?

Speaker 39 This went on for weeks.

Speaker 16 And they were basically like,

Speaker 50 he doesn't want to do interviews.

Speaker 48 He doesn't want to talk.

Speaker 11 Yeah, yeah. So you didn't get him?

Speaker 29 Yeah, I got him.

Speaker 6 Good.

Speaker 31 So shortly before we were going to wrap this story, I get an email saying, come to Oklahoma.

Speaker 48 So I went.

Speaker 19 He lives in this one-story house on this tree-lined block in a small town north of Tulsa.

Speaker 52 Hey, how's it going? How are we doing?

Speaker 6 Doing good. Okay.

Speaker 18 What does he look like? He's just a very normal-looking guy.

Speaker 16 A little bit of an army haircut.

Speaker 9 He had a stash that night when he got Veronica, but he's clean-shaven now.

Speaker 62 Big smile.

Speaker 19 So anyway, we go inside, and the first thing he tells me

Speaker 48 is that Veronica is not there.

Speaker 19 She was out with his wife, Robin.

Speaker 39 Turns out he's remarried.

Speaker 19 In any case, test, test, test.

Speaker 30 All right.

Speaker 20 We sat down at the kitchen table and started talking.

Speaker 30 Do you mind introducing yourself and telling me where we are?

Speaker 63 I'm Dustin Brown.

Speaker 63 We're in Nowhat, Oklahoma. This is my house.

Speaker 63 I'm part of the Wolf Clan.

Speaker 39 Wolf Clan is one of the seven Cherokee clans.

Speaker 63 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.

Speaker 63 I'm the brave warrior out in, you know, desert.

Speaker 22 He's been a registered member since he was a little kid.

Speaker 20 His parents were members and their parents.

Speaker 37 And he said he's proud to be Cherokee, basically because it means that he's from where he lives.

Speaker 26 It's a big deal to me.

Speaker 48 So anyway, we started talking about the case.

Speaker 16 And, you know, it gets complicated. There's a lot of detail.

Speaker 10 I'm not going to go into all of it.

Speaker 27 But basically, he and Christy Maldonado, the birth mom.

Speaker 63 We've known each other since we were 16. We've dated off and on throughout.

Speaker 27 In 2008, he joins the Army.

Speaker 39 Basic training.

Speaker 19 He lives on a base.

Speaker 8 It's four hours away.

Speaker 63 Four hours south.

Speaker 39 And Christmas time that year, he basically says, let's get serious.

Speaker 63 Got down on one knee and proposed to her, said, hey, I want to bring you into my life.

Speaker 63 She said, okay that's just great and almost a month later she sent me a message saying that she was pregnant and i was excited i mean

Speaker 63 to have children with her was was one of the things i wanted 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 was schools for her kids.

Speaker 63 She could get a job right there on base, you know. Everything was taken care of.
I mean, everything was going great, you know.

Speaker 8 And then pretty quickly, the whole thing just soured.

Speaker 19 It's impossible to know exactly what happened, but Chrissy says that Dustin just simply didn't offer any support.

Speaker 19 He says that he did, he tried to at least, but shortly after she got pregnant, she basically just shut him out, stopped taking his calls.

Speaker 63 I didn't get no phone calls, no text messages, nothing from Rather Blue, and I'm just like, well, what's going on?

Speaker 26 And he says that he tried to get in touch with her.

Speaker 63 Texting her up, trying to call her. Still no answer.
There's a couple times that I've went back to the Barbsville and went to her house.

Speaker 63 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 she's like well i want you to sign your rights over

Speaker 39 His parental rights.

Speaker 63 Would you sign your rights over?

Speaker 60 You guys are text saying this? Are you talking?

Speaker 63 Oh, the whole time we're text messaging this because she wouldn't talk to me.

Speaker 39 And what did you think it meant?

Speaker 63 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.

Speaker 50 He says she kept texting him that question.

Speaker 19 And looming in his mind was the fact that he just learned.

Speaker 63 But we were going to be going to Iraq to do a radar mission.

Speaker 19 And he starts to wonder, what's the right thing to do here?

Speaker 63 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.

Speaker 63 And he says that he's holding out hope that if he does make it back we'll get back together and she'll just change her mind finally I just told her I was like all right I'll sign my rights over

Speaker 63 months go by Christy has the baby he says he doesn't know exactly when because they weren't speaking but then six days before I had to go deploy to Iraq I get a phone call from Some guy in Washington County.

Speaker 13 A process server.

Speaker 63 Said, hey, we need you to sign some papers so you can sign your custody rights over.

Speaker 39 And the guy directed him to an office office right near the base.

Speaker 63 He went there and signed the paper and what did you think it meant? The whole time I thought it was just, you know, the paperwork for me signing custody rights to her.

Speaker 63 But when I got done signing, the guy said, you just signed your rights away. And so did the biological mother.
The baby's been up for adoption. She's been living in South Carolina for four months.

Speaker 8 Dustin says this is the first moment that he realized what was actually happening, that the baby was up for adoption.

Speaker 30 And he says that he had no idea he had just legally consented to it.

Speaker 8 I should have had a lawyer there with me.

Speaker 63 At that point in time, I grabbed the paper.

Speaker 63 And the guy looked at me and said, if you're going to rip that up, he said

Speaker 63 it's not good to do that.

Speaker 8 That he could be arrested.

Speaker 63 And I said, what do I got to do? He said, you need to get a lawyer.

Speaker 24 Which he immediately did.

Speaker 27 And that's why the courts have ruled in his favor, because they say that from that moment, he's clearly demonstrated that he wants to be her dad.

Speaker 63 I mean, I never, never once did I want to give up on my daughter. Never once did I want to give her up.
I mean, everybody says that I gave her up. Never wanted to.

Speaker 19 Now, Mark and Laurie say that if this were any other guy, any other man of any other race, the story would be over right about here.

Speaker 38 It's too late.

Speaker 44 He wouldn't have any rights at all.

Speaker 38 Under every state's laws, too late.

Speaker 47 Under the federal constitution, too late. He rejected that opportunity to become a father.

Speaker 24 But he has one thing in his favor, says Laurie.

Speaker 19 He happens to be Cherokee.

Speaker 10 And because of that fact.

Speaker 2 Not only can this sort of man object, but he gets an automatic transfer of custody to him.

Speaker 59 And Mark and Laurie see that as basically the worst kind of preferential treatment.

Speaker 4 And that is unbelievable.

Speaker 28 This is John. John Nichols.
This is Shannon.

Speaker 42 Shannon Jones.

Speaker 13 They're two of Dustin's lawyers.

Speaker 30 And John says, okay, there's preferential treatment.

Speaker 9 Fine.

Speaker 4 But think about why all the protections of ICWA are there.

Speaker 51 These roadblocks are there for a reason.

Speaker 24 We went over this earlier, but you know, basically people are being manipulated out of their kids.

Speaker 30 And while you might like to think that that's ancient history.

Speaker 51 Now, fast forward to 2010.

Speaker 32 He says the same thing is happening in this case.

Speaker 51 And we have a registered member of the Cherokee Nation. We have his child.
being given up for adoption without his knowledge and without his consent.

Speaker 28 And they kept this adoption from him for months months and then spring it on him six days before he leaves the country?

Speaker 51 It looks to us like it was engineered to make sure he got served, but not in enough time to where he could put up a fight.

Speaker 2 I believe it was absolutely intentional.

Speaker 53 And Shannon suggests that they knew about ICWA, they knew it would apply, and they were trying to sidestep it.

Speaker 42 There were so many errors.

Speaker 62 You just did a little air quotes on errors, didn't you?

Speaker 2 Yeah, I did.

Speaker 53 Like, for example, there's this one important form where Shannon says that they went out of their way to make it look like Veronica is not Native American.

Speaker 42 Because it would be detrimental to the adoption.

Speaker 26 That's just

Speaker 44 a preposterous argument. You know, the form.

Speaker 39 Mark and Laurie say the reason that nobody put Cherokee in big, bright, flaming letters is simple.

Speaker 47 Christy herself is predominantly Hispanic. Dustin is predominantly Caucasian and is approximately 2% Cherokee.

Speaker 6 What?

Speaker 52 Did she say 2%?

Speaker 16 Yeah, Veronica herself would be a little bit over 1%.

Speaker 11 Wait, this whole thing is happening because he's only 2%? Well, I feel like that changes things somehow.

Speaker 60 Well, yeah, but you have to keep in mind that Cherokee Nation doesn't care about the percentage of Cherokee in your blood.

Speaker 39 That's not how they determine their members.

Speaker 51 Being a member of the Cherokee Nation is like being a member of the United States. You are a citizen of the nation.

Speaker 2 You know, if your parents are a U.S. citizen, you're automatically a citizen.

Speaker 60 That's Chrissy Nemo, Assistant Attorney General for Cherokee Nation.

Speaker 2 If your parents are a Cherokee citizen, you're not automatically a citizen.

Speaker 30 But you can automatically apply, so it's based on direct lineage.

Speaker 28 But still, you're right, because this is the argument that is most troubling to the tribes.

Speaker 2 Both Chrissy Nemo and Marsha Zug told me that if the Supreme Court ends up deciding that ICWA is unconstitutional because it really is race-based.

Speaker 2 Unconstitutional because it's a race-based preference. It calls into question every single federal Indian law.

Speaker 2 There goes Indian law.

Speaker 2 This is a case that they could use to do that.

Speaker 16 If ICWA falls because it's unconstitutional, it could have a crazy domino effect.

Speaker 2 Every single federal Indian law is premised on giving some sort of special treatment to Indians.

Speaker 11 What would that mean concretely if Indian law were to go away?

Speaker 30 It means that their policing, their court system, their education, anything they do as a sovereign nation, all of that just evaporates.

Speaker 18 A tribe would just become another group of people on some land.

Speaker 30 That said,

Speaker 8 this is not the likely outcome.

Speaker 10 Now,

Speaker 40 the Supreme Court will probably rule as narrowly as they possibly can.

Speaker 45 And as far as the tribes are concerned, they can do a lot of damage to the law without calling it unconstitutional.

Speaker 60 unconstitutional.

Speaker 16 You know, they could allow for this certain kind of exception to ICWA, which would make it a lot easier for people like the Capo Piancos to adopt.

Speaker 11 So they could rule any number of ways.

Speaker 54 Yeah.

Speaker 30 And the thing is that it's all strangely connected to this

Speaker 23 three-year-old girl.

Speaker 63 The whole time through this, I'm thinking I'm just going to assign custody rights over her.

Speaker 50 So when she finally showed up halfway through my interview with Dustin,

Speaker 54 hello.

Speaker 63 Hi.

Speaker 48 It was kind of surreal.

Speaker 63 This is my daughter Veronica, though.

Speaker 64 Daddy.

Speaker 48 Hey, Veronica, I'm Tim.

Speaker 8 She's got dark, curly hair.

Speaker 19 She's this ball of energy.

Speaker 6 She's definitely bullheaded.

Speaker 16 And within a minute,

Speaker 17 she's giving me a tour of every single object in her room.

Speaker 25 And this.

Speaker 4 I mean, everything. Who's that?

Speaker 64 Army Bear.

Speaker 48 Army Bear.

Speaker 55 You got one of Daddy's dog tags on it?

Speaker 12 Yeah. She was a very

Speaker 54 proud

Speaker 52 host.

Speaker 39 A few minutes later, she wanted to show me her geese.

Speaker 60 I don't think I've seen geese in a long time.

Speaker 52 We're about to.

Speaker 8 Those are real geese?

Speaker 54 Yeah.

Speaker 27 She feeds them out of her hand.

Speaker 6 No, no, no. Don't mess with that water.

Speaker 46 Come here, babies.

Speaker 46 Come here, babies. Thomas.

Speaker 54 Thomas Tring.

Speaker 6 Thomas the Train. Thomas.

Speaker 54 Yep.

Speaker 54 So,

Speaker 11 what could happen to her?

Speaker 54 Are they eating?

Speaker 45 Well, if the Supreme Court said

Speaker 9 Dustin Brown shouldn't have qualified as father under ICWA, what they'd do is they would send it back down to a South Carolina court.

Speaker 27 And then they would have this new best interest evaluation.

Speaker 12 Basically, like, what's the best thing for her at this point?

Speaker 39 She's been with him now for about a year and a half, and so that actually might really change the calculation.

Speaker 9 You know, and

Speaker 9 honestly, hanging out with her and Dustin in the backyard,

Speaker 8 it's really easy to forget

Speaker 8 all these people whose lives are just

Speaker 18 completely tangled up in this scene.

Speaker 7 But who aren't there?

Speaker 28 Christy Maldonado, the birth mom.

Speaker 47 She did not intend to give Veronica up, she intended to give Veronica a life.

Speaker 37 Matt and Melanie Cabo Bianco.

Speaker 43 I mean, this has been going on for so long.

Speaker 43 We've kind of been in a holding pattern for like

Speaker 44 well, forever.

Speaker 14 We're just waiting and waiting and waiting.

Speaker 19 And of course, the hundreds of tribes who

Speaker 59 are just worried about their own kids.

Speaker 16 Pretty cool. Are you a good swimmer? Yes.

Speaker 64 I'm a good swimmer.

Speaker 16 I'm a bad swimmer.

Speaker 64 You're not. You dude swimmer.

Speaker 16 No, I'm a pretty bad swimmer.

Speaker 64 No, you're not.

Speaker 64 You dead swimmer.

Speaker 60 How do you know I'm a good swimmer?

Speaker 64 I know you do swimmer. You dude swimmer.

Speaker 21 Well, I appreciate that.

Speaker 21 Yeah.

Speaker 11 So the Supreme Court came to a decision on this ruling about a month after we first aired this podcast, and here's what they said.

Speaker 19 Okay, so the Supreme Court ruled 5-4 in favor of the adoptive couple, which is to say against the birth father.

Speaker 11 So Dustin Brown the dad lost.

Speaker 8 Right.

Speaker 52 It was like a 60-page ruling, and

Speaker 41 not being totally confident what all the ramifications were, I just made some calls.

Speaker 45 Hi, how are you? I'm doing great.

Speaker 29 How are you?

Speaker 19 For example, I Skyped with Marcia Zug, who you remember from the piece.

Speaker 28 She's a law professor at the University of South Carolina.

Speaker 50 Can you walk me through what this opinion means?

Speaker 61 Well, in terms of Veronica's placement, had it come out the other way, then it would be over. She would stay with Dustin Brown, her biological father.
End of story.

Speaker 61 What we have now is the court upholding the termination of his parental rights.

Speaker 40 So basically, the Supreme Court ruled that Dustin Brown shouldn't have been allowed to invoke the Indian Child Welfare Act because he didn't have what's called continuing custody of Veronica.

Speaker 58 Continuing custody.

Speaker 18 Right.

Speaker 32 They argue that this law is about preventing the breakup of Indian families and there was no Indian family here because they didn't live together.

Speaker 16 The dad and the daughter didn't live together.

Speaker 10 Right.

Speaker 39 So they don't scrap the Indian Child Welfare Act.

Speaker 30 They just say that it shouldn't apply in a case like this.

Speaker 14 So that's as narrow as you can get, probably.

Speaker 25 Yeah.

Speaker 14 But I mean, I'm curious, what happens now when the case, where does the case go from here?

Speaker 23 Well, the Supreme Court kicked it back down to a lower court where you'd expect that they'd just award the Capo Bianco's custody.

Speaker 19 And that's what this guy said. So this is going back to South Carolina and to the state Supreme Court.

Speaker 39 This is to Jinder Singh.

Speaker 28 He's a contributor at SCODISBLOG. And a counsel at the law firm Goldstein and Russell, which practices before the Supreme Court.

Speaker 19 So the case goes to the South Carolina Supreme Court.

Speaker 19 And then they'll probably push the case down to their lower courts to make further decisions about whether the father has standing to object to the adoption and assuming he doesn't after this decision,

Speaker 21 you know, whether the adoption can just become finalized.

Speaker 11 So it sounds like the Capo Biancos will ultimately get Veronica back.

Speaker 18 Possibly, yeah.

Speaker 19 But Marcia says that there's a chance that it might not go that way.

Speaker 61 So now she's up for adoption, right?

Speaker 19 This is where it gets complicated.

Speaker 18 So because the Supreme Court said that ICWA still stands, it's still law,

Speaker 39 and they said that Veronica is an an indian child she's cherokee okay that means that the south carolina supreme court could decide that she is still covered by the indian child welfare act

Speaker 52 my understanding of the case they're not saying that iqa doesn't apply with the placement preferences you remember the placement preferences yeah if the court decides that this is still an iqua case then those preferences would kick in So if you recall, according to ICWA.

Speaker 5 When an Indian child is placed for adoption, her aesthetic family members would be given first preference, right?

Speaker 23 This is Selangel.

Speaker 5 Selangel Maldonado, Joseph N. Lynch, Professor of Law, Seton Hall University School of Law.

Speaker 19 So in an ICA case, the first preference is extended family.

Speaker 45 Second preference.

Speaker 5 Other members of the Cherokee tribe would be next in line.

Speaker 23 Third preference.

Speaker 5 Other Indian families. This means an Indian family from any of the 562 federally recognized tribes.
And then finally, any other family, such as the Capo Biancos.

Speaker 5 So if the South Carolina Supreme Court decides that this is still an ECU case, and if the paternal grandparents file a petition to adopt, they are at the very top of the mandatory placement preferences, and the Capo Biancos are at the very bottom.

Speaker 6 Wow.

Speaker 11 So it's possible the Capo Biancos might not get custody.

Speaker 19 Yeah, and Marcia even says that there's a chance that Dustin Brown himself

Speaker 9 will come forward to adopt Veronica.

Speaker 61 His rights were terminated because he failed to support, but now we've got basically two years' worth of evidence of him loving and supporting and taking care of her, and the court's not going to ignore that.

Speaker 52 It's just so crazy to think, though, that this guy who's the biological father

Speaker 40 may ultimately become the adoptive father.

Speaker 61 That's insane.

Speaker 1 Yes.

Speaker 11 Damn, this is complicated. I thought that it was supposed to get less complicated.

Speaker 19 You know, John Nichols, Dustin Brown's lawyer, he said to me that this is totally uncharted waters, that he's never seen a case of this magnitude get decided by the Supreme Court and still be so open-ended.

Speaker 14 Aaron Powell, what's the timetable on this?

Speaker 59 John said that they expect to hear something from the South Carolina Supreme Court on Monday, July 8th, just laying out what the next steps are.

Speaker 11 Aaron Powell, Tim, let me ask you.

Speaker 11 We spent a fair amount of time in the story examining the worst case scenario from the tribe's perspective, that this case could be used as a kind of Trojan horse to say that all of Indian law is an unfair race-based preference and therefore should be negated.

Speaker 7 Right.

Speaker 11 I'm gathering from what you just said that that did not come to pass.

Speaker 48 No, that didn't happen.

Speaker 30 But there is this sense that they kind of planted a seed.

Speaker 9 For example, Justice Alito, who wrote the ruling, he starts it off with mention of Veronica being

Speaker 59 1.2% Cherokee,

Speaker 8 which is interesting because it sounds like he's about to make an argument for why this is a race-based preference and why it's a violation of equal protection.

Speaker 11 Like he's about to go nuclear, if that's how he starts.

Speaker 8 Exactly.

Speaker 48 Which, to me, was kind of baffling because why would you start off with this massive footprint and then leave a very small one?

Speaker 39 Is it to send a message?

Speaker 26 So anyway, I asked Marcia what she thought about it.

Speaker 21 Why do you think they started it off that way?

Speaker 61 I've been thinking about that.

Speaker 61 It clearly

Speaker 61 sat wrong with at least some members of the court. I mean, when listening to the oral arguments, you could tell that.
You know, Roberts harped on it as well.

Speaker 61 It might have been that that was too big an issue to address in this case, that they weren't ready to.

Speaker 61 But I think it's an indication that at least some members of the court have serious reservations about Indian law because they just don't see Veronica as an Indian child. To them,

Speaker 61 Indian is a race, and she doesn't have enough blood to be of that race. It's a possible indication of

Speaker 61 where future Indian law cases are going to go.

Speaker 11 Producer Tim Howard. Thanks, Tim.

Speaker 1 Okay, it's Lulu again back in 2025. And as you just heard, there were sort of two categories of lingering questions.

Speaker 1 One about what would happen to Veronica, and the other about the Indian Child Welfare Act.

Speaker 1 So ultimately, Veronica's case wound up in family court, which found that without the application of ICWA, Dustin could not intervene.

Speaker 1 One week after her fourth birthday, Veronica was returned to the Capo Biancos in South Carolina.

Speaker 1 And a few months after that, Dustin and the Cherokee Nation announced that they would not continue pursuing the case.

Speaker 1 And Veronica's life became much more private after that, away from all the attention of the courts. She's now 16 years old.

Speaker 1 As for the Indian Child Welfare Act, ICWA, it's faced repeated challenges in the past 12 years. The biggest one was in 2023, but at that time, the Supreme Court upheld ICWA seven to two.

Speaker 1 So, for now, it is alive and affirmed at the national level, but not without continued challenges, including a case brought before the Minnesota Supreme Court just this year challenging ICWA again.

Speaker 1 That case has not been decided.

Speaker 1 Thanks so much for listening. We'll be back next week.

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