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 4 You're listening

Speaker 4 to Radio Lab.

Speaker 4 Radio Lab from

Speaker 6 WNYC.

Speaker 7 Hey, I'm Jadab Umran.

Speaker 4 I'm Robert Quilwich.

Speaker 6 This is Radio Lab. The podcast.

Speaker 8 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 10 How big a deal did this little girl become?

Speaker 8 A very big deal to about 500-something nations.

Speaker 12 There aren't 500 in there.

Speaker 8 No, there are.

Speaker 12 Look, I've seen the front of the U.S. No, there are.

Speaker 7 Just look, okay.

Speaker 8 It's going to make sense in about 30 seconds.

Speaker 6 Okay. That was just a, that's a tease.

Speaker 8 It isn't ultimately even that important to the story. So 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 6 So

Speaker 15 I first heard about this story.

Speaker 16 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 vs. Adoptive Couple.

Speaker 18 Actually, in strict legal parlance, it's called Adoptive Couple v.

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

Speaker 19 I got to say, it's a weird name, though.

Speaker 11 It's hard to picture.

Speaker 20 Yeah.

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

Speaker 20 And she wrote about this case in Slate. And it stood out to me because, you know, it just seemed odd at first that this would even be a Supreme Court case.

Speaker 22 It seemed more like a straightforward custody case. Right.

Speaker 23 But when you dig in,

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

Speaker 4 Heirs.

Speaker 24 Children.

Speaker 4 Supreme Court. Christopher Columbus.

Speaker 25 Christopher Columbus.

Speaker 14 And it is not straightforward at all.

Speaker 4 Apparently not.

Speaker 26 So let me walk you through it the way that I learned about it.

Speaker 27 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 27 He's a technician at Boeing.

Speaker 11 She's a developmental psychologist.

Speaker 2 Nice middle-class white couple.

Speaker 17 They're in their late 30s.

Speaker 12 And they really wanted to have a kid.

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

Speaker 29 It wasn't working out.

Speaker 2 So eventually they decided to adopt.

Speaker 12 Enter a woman named Christy Maldonado.

Speaker 19 She lives about a thousand miles away.

Speaker 4 I believe she's in Oklahoma.

Speaker 20 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 32 We used to call her Boss Lady. Not a lot.
Most of the time, I was

Speaker 33 that. Yeah.

Speaker 24 Boss Lady.

Speaker 33 Bosses everybody around.

Speaker 30 This is Matt and Melanie Capo Bianco.

Speaker 32 But you were happy to do whatever she told you to do because she's just

Speaker 32 the poster child for a proud father, you know.

Speaker 32 But

Speaker 32 it's just gone as wrong as it could have possibly gone.

Speaker 6 This is basically how it unfolded on TV news.

Speaker 14 A man Veronica had never even met.

Speaker 12 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 18 And the court is making them stand by and just let it happen.

Speaker 8 Why?

Speaker 28 Well, it's mainly because of this law.

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

Speaker 22 Dustin, the dad, he's Cherokee.

Speaker 6 He's a part of the Cherokee Nation.

Speaker 11 So that makes his daughter, Veronica, eligible to be Cherokee.

Speaker 28 And the law is designed.

Speaker 37 To keep Indian families together.

Speaker 5 It gives preference to Indian kids staying with Indian parents.

Speaker 39 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 8 He signed his custody away and he was able to then

Speaker 8 use his Cherokee-ness to reverse the rights he signed away? Just hang on.

Speaker 20 This is all going to make sense.

Speaker 8 Okay, but he takes the kid, is what you're saying.

Speaker 7 Yeah.

Speaker 27 New Year's Eve, 2011, with cameras rolling, Dustin Brown drives his pickup truck into Charleston.

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

Speaker 23 And that evening,

Speaker 21 Veronica is transferred to Dustin.

Speaker 42 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 11 And as Dustin gets into the truck, holding his two-year-old daughter for the first time,

Speaker 11 a reporter asks him, Do you think this is in her best interest?

Speaker 14 And this is all you hear from him.

Speaker 18 I don't think so.

Speaker 45 We need to give her a kiss.

Speaker 35 Have you ever seen the child before?

Speaker 33 They declined any further comment on camera.

Speaker 27 He gets into the truck with Veronica,

Speaker 18 and they drive away back to Oklahoma.

Speaker 46 Can I ask you

Speaker 40 when was the last time that you spoke with Veronica?

Speaker 32 The day after, um

Speaker 32 the day after the uh

Speaker 32 transfer. Transfer.

Speaker 4 Oh, a phone call.

Speaker 32 Yeah. We spoke to her for about two minutes and

Speaker 4 we uh

Speaker 32 told her we loved her and she said, I love you, mommy, and I love you, daddy and

Speaker 32 I don't know, just a few minutes and

Speaker 32 but that was it. That was the last time we were able to be in touch.

Speaker 5 And that was 16 months ago.

Speaker 47 And how long was Veronica with them again before this happened?

Speaker 15 About two years.

Speaker 48 Oh, man, that's hard.

Speaker 4 Yeah.

Speaker 49 When I first heard about this case, that's basically

Speaker 22 the only way I thought of it, you know, is just, that's a crazy injustice.

Speaker 11 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 13 And her article for Slate kind of caught me off guard because the title was, Doing What's Best for the Tribe.

Speaker 21 Two-year-old Veronica was ripped from the only home she's ever known.

Speaker 46 The court made the right decision.

Speaker 1 Yeah.

Speaker 13 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 5 And this is where the story turned into the biggest rabbit hole I've ever fallen into.

Speaker 11 What did she tell you?

Speaker 27 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 51 Burt, how are you doing?

Speaker 47 Great to meet you.

Speaker 4 And to this guy, Bert Hirsch.

Speaker 4 I'm a lawyer.

Speaker 30 He lives in Long Island now, which is where I visited him.

Speaker 10 But in 1967, the fall of 67, I was on the staff of the Association on American Indian Affairs.

Speaker 5 Sort of a legal advocacy group for American Indians. And he traveled all over working with different tribes.

Speaker 10 And

Speaker 27 one day, he gets a phone call from this guy, Lewis Goodhouse.

Speaker 10 The tribal chair of the Devil's Lake Sioux Tribe in North Dakota.

Speaker 22 And this guy says, I really need your help.

Speaker 10 He said, there's a child.

Speaker 50 A Devil's Lake kid, one of ours, that was just abruptly taken away by social workers.

Speaker 10 The Benson County, North Dakota Social Services Agency came in, and they took little Ivan Brown away from his grandmother.

Speaker 26 He was six.

Speaker 5 What was their stated reason for taking Ivan away?

Speaker 10 Neglect.

Speaker 8 Because what? Because grandma

Speaker 8 wasn't around?

Speaker 6 No, actually, Bird says that the social workers were looking for that classic nuclear family.

Speaker 10 Biological mother.

Speaker 25 biological father, children.

Speaker 12 So when they saw him with an older relative, but no mom or dad, they thought, uh-oh.

Speaker 5 And they took him away.

Speaker 10 The tribal council was extremely upset by this. They wanted to fight a battle about this.

Speaker 14 Burt took the case, fought it in court.

Speaker 10 We won that case, by the way. At Mrs.
Alex Fornia, she got Ivan back after a somewhat protracted battle.

Speaker 38 But he began to wonder, how widespread is this?

Speaker 10 So from 67 to the end of 68 into 69, he visited tribe after tribe after tribe, doing interviews.

Speaker 27 And he says that everywhere he went, he would hear these stories.

Speaker 52 I remember it vividly.

Speaker 24 This is Deb Wells.

Speaker 15 She's a member of the Rosebud Sioux tribe.

Speaker 12 And when she was 10 years old, a car pulled into her driveway.

Speaker 52 They'd come driving in, social workers, and they got out of the car. And I told my brothers and sisters, I said, go hike.

Speaker 52 And they had to drag us out from underneath the bed because we got around and got in the house. So then they took us to Scott's Bluff and put us in a foster home.

Speaker 53 It was horrible.

Speaker 54 This was just part of every native family's history.

Speaker 12 This is Marla Jean Big Boy.

Speaker 16 She grew up on the Pine Ridge Reservation in South Dakota.

Speaker 54 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 54 I'm going into the trading post because they're going to steal you.

Speaker 4 Really? Yeah.

Speaker 10 What we found is that on every reservation...

Speaker 56 My name is Michael Evan Nohart. I'm a full-blooded punk pop out of Lakota from Standing Rock Reservation.

Speaker 10 You couldn't not find a family that didn't know of a child in placement. The social services came and

Speaker 56 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 28 Wow.

Speaker 22 Michael says that his dad spent the next 30 years looking for him.

Speaker 27 In any case, Burt would ask these people that he was interviewing, what reason did the social workers give you for taking the child? And the answers that he got ran the gamut.

Speaker 10 Conditions of poverty, alcoholism, overcrowding. Maybe they don't have adequate ventilation in the house.

Speaker 23 No indoor plumbing.

Speaker 21 But in most cases, he says, the reasons wouldn't have stood up in court.

Speaker 10 They would put papers in front of them and they would sign. They didn't know what they were signing.

Speaker 20 Some families.

Speaker 10 If they could, they tried to fight it.

Speaker 21 But they usually couldn't afford to.

Speaker 4 Look, the tribal people are poor.

Speaker 10 So we began to do a statistical collection of data state by state.

Speaker 15 Asking how many Indian kids are in foster care.

Speaker 10 Foster care and adoptive placement and institutional placement, juvenile facilities.

Speaker 27 And what he arrived at at the end of that analysis is a pretty shocking number.

Speaker 18 About one-third of Indian children were in out-of-home placements in non-Indian settings.

Speaker 4 One-third?

Speaker 10 25 to 35% of Indian children nationwide were in out-of-home placements.

Speaker 8 That's a real number?

Speaker 17 That is the real number.

Speaker 30 That's the number you see cited again and again.

Speaker 10 Nobody connected the dots. Everybody thought

Speaker 10 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 8 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 6 Or is it like a policy? Well, this is basically social workers very much acting in the spirit of the day.

Speaker 26 Because you have to keep in mind that in the 50s and 60s,

Speaker 6 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 6 You've got this guy in 1953, who's a senator from Utah, who starts basically trying to terminate the tribes.

Speaker 8 You mean like take away their sovereignty?

Speaker 39 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 6 He argues that this will be best for all of them.

Speaker 51 I remember this. This was like out of i pluribus unum, like

Speaker 51 to to to integrate them into the whole.

Speaker 39 They will melt into the wider culture.

Speaker 14 That's what will save them.

Speaker 39 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 8 So part of this was definitely top-down, very much.

Speaker 6 In any case, the end result of this is that a third of these kids are being taken away.

Speaker 60 There were literally communities where there were no children.

Speaker 11 That's Terry Cross.

Speaker 27 He's the executive director of the National Indian Child Welfare Association.

Speaker 60 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 27 That's Marcia Zug again.

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

Speaker 15 So what do you do?

Speaker 10 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 4 So Burt spent years walking the halls of Congress, literally.

Speaker 7 Endless lobbying congressional hearings.

Speaker 34 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 14 If they say no.

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

Speaker 4 Wow.

Speaker 12 Any other?

Speaker 4 Yeah.

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

Speaker 8 Well, so if you're white and you're trying to adopt an Indian kid,

Speaker 8 you have a lot of roadblocks.

Speaker 4 Yes.

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

Speaker 4 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 22 But now, because of this case,

Speaker 34 that law may be in jeopardy.

Speaker 8 We'll continue in a moment.

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Speaker 51 I'm Jad Abum Radh.

Speaker 48 I'm Robert Quilwich.

Speaker 9 This is Radio Lab. Today,

Speaker 8 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 8 The story comes from producer Tim Howard. Back to him.

Speaker 30 So, in April, I went to this conference in Tulsa.

Speaker 45 The Board of Directors, Council of Elders.

Speaker 19 Big room, there are about 700 people there.

Speaker 5 Most of them work in child welfare organizations in Indian communities around the country.

Speaker 27 There was some traditional Cherokee drumming, there were films, workshops, and all anybody could talk about was this case.

Speaker 18 But there is no issue, big or now, in how the baby Veronica case may affect the Indian Child Welfare Act.

Speaker 45 So please, please do keep.

Speaker 45 Baby Veronica and her family in your prayers.

Speaker 58 Everybody was on edge.

Speaker 60 Well, I'm really worried in this situation.

Speaker 27 This is Terry Cross again.

Speaker 40 He's one of the organizers.

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

Speaker 60 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 60 I can't imagine a world where that's okay.

Speaker 33 Well, I mean, it's hard for us to say that because, you know, that's not what motivated us.

Speaker 32 Our daughters, what's motivating us?

Speaker 2 How we feel.

Speaker 33 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 33 And I just think it wasn't really supposed to be applied to a situation like ours.

Speaker 20 They say...

Speaker 6 We get that there's a huge historical wrong here.

Speaker 6 But what does that have to do with us?

Speaker 8 It reminds me of arguments that happen over affirmative action, weirdly.

Speaker 14 Definitely. But here the details

Speaker 30 are so different.

Speaker 6 You know, they say this is a law that was created to protect Indian families, right?

Speaker 5 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 30 So you're not actually protecting an Indian family, you're forcibly creating a new one.

Speaker 27 Absolutely. And in the process, you're breaking up a loving home.

Speaker 33 I don't think that was the intent of the law ever.

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

Speaker 19 This is Mark Fidler.

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

Speaker 19 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 17 Which gave him pause.

Speaker 32 Ah, boy, that's a good word.

Speaker 31 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 61 He won the case.

Speaker 24 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 21 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 32 And

Speaker 44 it always nagged me.

Speaker 14 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 11 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 6 He says they did everything you could ask.

Speaker 44 They're just amazing people.

Speaker 12 They met the birth mother, Christie Maldonado, when she was pregnant.

Speaker 14 They got to know her.

Speaker 55 She felt a connection to them.

Speaker 27 That's Lori McGill's.

Speaker 19 She's represented Christie since last year.

Speaker 55 And they were also willing to have an open adoption.

Speaker 32 Yeah, we still have a relationship with Christie.

Speaker 7 We love her to death.

Speaker 14 And Christie gave birth to Veronica.

Speaker 55 They were there there with her in the delivery room.

Speaker 32 Yeah, I mean, the day she was born, I cut the cord.

Speaker 55 Matt Capa Bianco cut the umbilical cord.

Speaker 49 That's such a degree of intimacy that I.

Speaker 55 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 27 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 61 And he replied, I'll waive my rights.

Speaker 55 Rather than pay a dime in child support.

Speaker 8 Well, there's a contrast. So in the beginning, it sounds like he did not want to be a dad.

Speaker 50 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 8 And then he changes his mind?

Speaker 26 Yeah, you know, and obviously I was wondering, what was he thinking

Speaker 27 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 63 Yeah.

Speaker 5 And so I was trying to get in touch with him.

Speaker 63 I was pestering his lawyers.

Speaker 31 You know, will he do an interview?

Speaker 21 This went on for weeks.

Speaker 6 And they were basically like,

Speaker 49 he doesn't want to do interviews.

Speaker 58 He doesn't want to talk.

Speaker 8 Yeah, yeah. So you didn't get him?

Speaker 4 Yeah, I got him.

Speaker 4 Good.

Speaker 30 So shortly before we were going to wrap this story, I get an email saying, come to Oklahoma.

Speaker 59 So I went.

Speaker 21 He lives in this one-story house on this tree-lined block in a small town north of Tulsa.

Speaker 13 Hey, how's it going? How are we doing?

Speaker 4 Doing good. Okay.

Speaker 7 What does he look like? He's just a very normal-looking guy.

Speaker 61 A little bit of an army haircut.

Speaker 29 He had a stash that night when he got Veronica, but he's clean-shaven now.

Speaker 63 Big smile.

Speaker 27 So anyway, we go inside, and the first thing he tells me

Speaker 50 is that Veronica is not there.

Speaker 47 Excited to meet her.

Speaker 27 She was out with his wife, Robin.

Speaker 58 Turns out he's remarried.

Speaker 28 In any case, test, test, test. All right.

Speaker 19 We sat down at the kitchen table and started talking.

Speaker 59 Do you mind just, do you mind introducing yourself and telling me where we are?

Speaker 64 I'm Dustin Brown.

Speaker 64 We're in Nowhat, Oklahoma. This is my house.

Speaker 64 I'm part of the Wolf Clan.

Speaker 12 Wolf Clan is one of the seven Cherokee clans.

Speaker 64 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 64 I'm the brave warrior out in, you know, desert.

Speaker 19 He's been a registered member since he was a little kid.

Speaker 27 His parents were members and their parents.

Speaker 34 And he said he's proud to be Cherokee, basically because it means that he's from where he lives.

Speaker 10 It's a big deal to me.

Speaker 20 So anyway, we started talking about the case.

Speaker 14 And, you know, it gets complicated.

Speaker 6 There's a lot of detail.

Speaker 4 I'm not going to go into all of it.

Speaker 30 But basically, he and Christy Maldonado, the birth mom.

Speaker 64 We've known each other since we were 16. We've dated off and on throughout.

Speaker 27 In 2008, he joins the Army. Basic training.
He lives on a base.

Speaker 6 It's four hours away.

Speaker 64 Four hours south.

Speaker 22 And Christmas time that year, he basically says, let's get serious.

Speaker 64 Got down on one knee and proposed to her, said, hey, I want to bring you into my life.

Speaker 64 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 64 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 she could get a job right there on base you know everything was taken care of i mean everything was going great you know and then pretty quickly the whole thing just soured.

Speaker 27 It's impossible to know exactly what happened, but Chrissy says that Dustin just simply didn't offer any support.

Speaker 27 He says that he did hear, he tried to at least, but shortly after she got pregnant, she basically just shut him out, stopped taking his calls.

Speaker 64 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 27 And he says that he tried to get in touch with her.

Speaker 64 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 64 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

Speaker 64 well i want you to sign your rights over

Speaker 58 His parental rights.

Speaker 64 Would you sign your rights over?

Speaker 59 You guys are text saying this? Are you talking?

Speaker 64 Oh, the whole time we're text messaging this because she wouldn't talk to me.

Speaker 5 What did you think it meant?

Speaker 64 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 47 He says she kept texting him that question.

Speaker 26 And looming in his mind was the fact that he just learned.

Speaker 64 But we were going to be going to Iraq to do a radar mission.

Speaker 27 And he starts to wonder, what's the right thing to do here?

Speaker 64 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 64 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 64 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 24 A process server.

Speaker 64 Said, hey, we need you to sign some papers so you can sign your custody rights over.

Speaker 21 And the guy directed him to an office office right near the base.

Speaker 64 He went there and signed the paper.

Speaker 49 What did you think it meant?

Speaker 64 The whole time, I thought it was just, you know, the paperwork for me signing custody rights to her. But when I got done signing, the guy said, you just signed your rights away.

Speaker 64 And so did the biological mother. The baby's been up for adoption.
She's been living in South Carolina for four months.

Speaker 6 Dustin says this is the first moment that he realized what was actually happening, that the baby was up for adoption.

Speaker 28 And he says that he had no idea he had just legally consented to it.

Speaker 22 I should have had a lawyer there with me.

Speaker 64 At that point in time, I grabbed the paper.

Speaker 64 And the guy looked at me and said, if you're going to rip that up, he said

Speaker 64 it's not good to do that.

Speaker 22 That he could be arrested.

Speaker 64 And I said, what do I got to do? He said, you need to get a lawyer.

Speaker 23 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 64 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 55 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. It's too late.

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

Speaker 55 Under every state's laws, too late. Under the federal constitution, too late.
He rejected that opportunity to become a father.

Speaker 20 But he has one thing in his favor, says Laurie.

Speaker 22 He happens to be Cherokee.

Speaker 55 And because of that fact, not only can this sort of man object, but he gets an automatic transfer of custody to him.

Speaker 58 And Mark and Laurie see that as basically the worst kind of preferential treatment.

Speaker 4 And that is unbelievable.

Speaker 50 This is John. John Nichols.
This is Shannon.

Speaker 41 Shannon Jones.

Speaker 24 They're two of Dustin's lawyers.

Speaker 28 And John says, okay, there's preferential treatment.

Speaker 31 Fine.

Speaker 26 But think about why all the protections of ICWA are there.

Speaker 48 These roadblocks are there for a reason.

Speaker 14 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 48 Now fast forward to 2010.

Speaker 30 He says the same thing is happening in this case.

Speaker 48 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 20 And they kept this adoption from him for months months and then spring it on him six days before he leaves the country?

Speaker 48 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 46 And Shannon suggests that they knew about ICWA, they knew it would apply, and they were trying to sidestep it.

Speaker 41 There were so many errors.

Speaker 63 You just did a little air quotes on errors, didn't you?

Speaker 2 Yeah, I did.

Speaker 50 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 2 Because it would be detrimental to the adoption.

Speaker 17 That's just

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

Speaker 27 Mark and Laurie say the reason that nobody put Cherokee in big, bright, flaming letters is simple.

Speaker 55 Christy herself is predominantly Hispanic. Dustin is predominantly Caucasian and is approximately 2% Cherokee.

Speaker 4 What?

Speaker 38 Did she say 2%?

Speaker 14 Yeah, Veronica herself would be a little bit over 1%.

Speaker 8 Wait, this whole thing is happening because he's only 2%? Well, I feel like that changes things somehow.

Speaker 26 Well, yeah, but you have to keep in mind that Cherokee Nation doesn't care about the percentage of Cherokee in your blood.

Speaker 12 That's not how they determine their members.

Speaker 48 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 59 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 50 But you can automatically apply.

Speaker 28 So it's based on direct lineage.

Speaker 27 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.
Ow, there goes Indian law.

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

Speaker 22 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 8 What would that mean concretely if Indian law were to go away?

Speaker 28 It means that their policing, their court system, their education, anything they do as a sovereign nation, all of that just evaporates.

Speaker 31 A tribe would just become another group of people on some land.

Speaker 28 That said,

Speaker 6 this is not the likely outcome.

Speaker 4 Now,

Speaker 17 the Supreme Court will probably rule as narrowly as they possibly can.

Speaker 26 And as far as the tribes are concerned, they can do a lot of damage to the law without calling it unconstitutional.

Speaker 19 unconstitutional.

Speaker 14 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 8 So they could rule any number of ways.

Speaker 4 Yeah.

Speaker 14 And the thing is that it's all strangely connected to this

Speaker 4 three-year-old girl.

Speaker 64 The whole time through this, I'm thinking I'm just going to assign custody rights over her.

Speaker 47 So when she finally showed up halfway through my interview with Dustin,

Speaker 4 hello.

Speaker 64 Hi.

Speaker 28 It was kind of surreal.

Speaker 64 This is my daughter Veronica, though.

Speaker 65 Daddy.

Speaker 59 Hey, Veronica, I'm Tim.

Speaker 6 She's got dark, curly hair.

Speaker 30 She's this ball of energy.

Speaker 4 She's definitely bullheaded.

Speaker 50 And within a minute,

Speaker 5 she's giving me a tour of every single object in her room. And this.

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

Speaker 65 Army Bear.

Speaker 59 Army Bear.

Speaker 52 You got one of Daddy's dog tags on it?

Speaker 9 Yeah. She was a very, um, a very proud

Speaker 13 host.

Speaker 27 A few minutes later, she wanted to show me her geese.

Speaker 59 I don't think I've seen geese in a long time.

Speaker 13 We're about to.

Speaker 6 Those are real geese?

Speaker 4 Yeah.

Speaker 27 She feeds them out of her hand.

Speaker 4 No, no, no. Don't mess with that water.

Speaker 45 Come here, babies.

Speaker 45 Come here, babies. Thomas.

Speaker 4 Thomas Tring. Thomas the Train.
Thomas. Yep.

Speaker 4 So,

Speaker 8 what could happen to her?

Speaker 4 Are they eating?

Speaker 26 Well, if the Supreme Court said

Speaker 34 Dustin Brown shouldn't have qualified as father under ICWA, what they do is they would send it back down to a South Carolina court.

Speaker 30 And then they would have this new best interest evaluation.

Speaker 28 Basically, like, what's the best thing for her at this point?

Speaker 58 She's been with him now for about a year and a half, and so that actually might really change the calculation.

Speaker 31 You know, and

Speaker 31 honestly, hanging out with her and Dustin in the backyard,

Speaker 6 it's really easy to forget

Speaker 6 all these people whose lives are just

Speaker 40 completely tangled up in this scene.

Speaker 4 But who aren't there?

Speaker 21 Christy Maldonado, the birth mom.

Speaker 55 She did not intend to give Veronica up.

Speaker 55 She intended to give Veronica a life.

Speaker 34 Matt and Melanie Cabo Bianco.

Speaker 42 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. We're just waiting and waiting and waiting.

Speaker 27 And of course, the hundreds of tribes who

Speaker 12 are just worried about their own kids.

Speaker 61 Pretty cool. Are you a good swimmer? Yes.

Speaker 65 I'm a good swimmer.

Speaker 61 I'm a bad swimmer.

Speaker 65 You're not. You dude swimmer.

Speaker 61 No, I'm a pretty bad swimmer.

Speaker 65 No, you're not.

Speaker 65 You dude swimmer.

Speaker 59 How do you know I'm a good swimmer?

Speaker 65 I know you do swimmer. You dude swimmer.

Speaker 52 Well, I appreciate that.

Speaker 52 Yeah.

Speaker 8 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 14 Okay, so the Supreme Court ruled 5-4 in favor of the adoptive couple, which is to say against the birth father.

Speaker 8 So Dustin Brown, the dad, lost.

Speaker 11 Right.

Speaker 13 It was like a 60-page ruling, and

Speaker 34 not being totally confident what all the ramifications were, I just made some calls.

Speaker 40 Hi, how are you? I'm doing great.

Speaker 4 How are you?

Speaker 14 For example, I Skyped with Marcia Zug, who you remember from the piece.

Speaker 27 She's a law professor at the University of South Carolina.

Speaker 49 Can you walk me through what this opinion means?

Speaker 62 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 62 What we have now is the court upholding the termination of his parental rights.

Speaker 15 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 57 Continuing custody.

Speaker 7 Right.

Speaker 30 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 34 The dad and the daughter didn't live together.

Speaker 4 Right.

Speaker 58 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 51 So that's as narrow as you can get, probably.

Speaker 11 Yeah.

Speaker 51 But I mean, I'm curious, what happens now when the case, where does the case go from here?

Speaker 4 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 22 And that's what this guy said. So this is going back to South Carolina and to the state Supreme Court.

Speaker 21 This is to Jinder Singh. He's a contributor at SCODISBLOG.
And a counsel at the law firm Goldstein and Russell, which practices before the Supreme Court.

Speaker 41 So the case goes to the South Carolina Supreme Court.

Speaker 41 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 58 you know, whether the adoption can just become finalized.

Speaker 8 So it sounds like the Capo Biancos will ultimately get Veronica back.

Speaker 7 Possibly, yeah.

Speaker 27 But Marcia says that there's a chance that it might not go that way.

Speaker 62 So now she's up for adoption, right?

Speaker 22 This is where it gets complicated.

Speaker 7 So because the Supreme Court said that ICWA still stands, it's still law,

Speaker 5 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 13 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 36 When an Indian child is placed for adoption, her extended family members would be given first preference, right?

Speaker 7 This is Selangel.

Speaker 36 Selangel Maldonado, Joseph N. Lynch, professor of law, Seton Hall University School of Law.

Speaker 26 So in an ICWA case, the first preference is extended family. Second preference.

Speaker 36 Other members of the Cherokee tribe would be next in line.

Speaker 51 Third preference.

Speaker 36 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 17 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.

Speaker 53 And the Capo Biancos are at the very bottom.

Speaker 4 Wow.

Speaker 8 So it's possible the Capo Biancos might not get custody.

Speaker 27 Yeah, and Marcia even says that there's a chance that Dustin Brown himself

Speaker 40 will come forward to adopt Veronica.

Speaker 62 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 38 It's just so crazy to think, though, that this guy who's the biological father

Speaker 34 may ultimately become the adoptive father.

Speaker 62 That's insane.

Speaker 1 Yes.

Speaker 8 Damn, this is complicated. I thought that it was supposed to get less complicated.

Speaker 14 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 51 Aaron Powell, what's the timetable on this?

Speaker 58 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 8 Aaron Powell, Tim, let me ask you.

Speaker 8 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 4 Right.

Speaker 8 I'm gathering from what you just said that that did not come to pass.

Speaker 29 No, that didn't happen.

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

Speaker 29 For example, Justice Alito, who wrote the ruling, he starts it off with mention of Veronica being

Speaker 58 1.2% Cherokee,

Speaker 22 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 8 Like he's about to go nuclear, if that's how he starts.

Speaker 6 Exactly.

Speaker 58 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 63 Is it to send a message?

Speaker 58 So anyway, I asked Marcia what she thought about it.

Speaker 16 Why do you think they started it off that way?

Speaker 62 I've been thinking about that.

Speaker 62 It clearly

Speaker 62 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 62 It might have been that that was too big an issue to address in this case, that they weren't ready to.

Speaker 62 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 62 Indian is a race, and she doesn't have enough blood to be of that race. It's a possible indication of

Speaker 62 where future Indian law cases are going to go.

Speaker 8 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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