Supreme Court to consider adoption case of American Indian girl

CHARLESTON, South Carolina Sun Apr 14, 2013 9:08pm EDT

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CHARLESTON, South Carolina (Reuters) - The Supreme Court will hear arguments on Tuesday in an adoption fight between a South Carolina couple who raised a girl for more than two years after her birth and the child's biological father who won custody of her due to his American Indian heritage.

The case will test whether the Indian Child Welfare Act, a 1978 federal law designed to prevent the removal of American Indian children from Indian families and tribes, can be used to block an adoption initiated by a non-Indian parent.

The case has drawn wide attention from adoption attorneys, child welfare organizations and Indian tribes, who say it could affect adoptions nationwide by making clear how the federal act works with state family laws.

"In the real world, it's often a daunting task to determine whether the Indian Child Welfare Act applies to a particular child," said Mark Demaray, an adoption attorney in Washington state.

Charleston residents Matt and Melanie Capobianco, a Boeing technician and developmental psychologist, respectively, sought to adopt under South Carolina law a girl they named Veronica after she was born in September 2009 to a single woman in Oklahoma.

Christina Maldonado sought to have her baby adopted after the child's father, Dusten Brown, renounced his parental rights in a text message during her pregnancy, according to court documents.

Brown, a registered member of the Cherokee Nation and a soldier at Fort Sill, Oklahoma, said he learned of the adoption four months later and signed documents relinquishing parental rights, court records show.

But he later contested the adoption, saying he misunderstood the documents he signed.

Citing the Indian Child Welfare Act, a family court in South Carolina awarded custody to Brown in 2011. In late December 2011, the Capobiancos turned 27-month-old Veronica over to Brown, who took her back to Oklahoma. The girl is now 3-1/2.

The South Carolina Supreme Court affirmed the ruling in a split decision, with one justice calling the case a "human tragedy."

COUPLE SEEKS TO GET CHILD BACK

The adoptive parents, who have not seen the child in more than a year, are asking the U.S. Supreme Court to reverse the decision and return Veronica to them. The couple and the child's birth mother will attend the oral arguments.

The adoptive couple argues South Carolina state law is on their side and say a ruling in their favor would not dismantle the Indian Child Welfare Act, which was originally enacted to prevent social welfare authorities from forcibly separating Indian children from their parents, a practice that was common enough at the time to prompt Congress to take action. They say the federal act "requires more of a parental relationship than biology alone."

"All the future requires is that unwed Indian fathers — like all other fathers — appreciate that their choices have consequences and that some decisions cannot be undone," the couple said in a court brief filed this month.

Lawyers with the American Academy of Adoption Attorneys, which filed a brief in support of the couple, said in a telephone briefing last week that they hope the court will clarify how the act works with state family laws.

Under South Carolina law, Brown did not step forward soon enough to assert his parental rights, said Demaray, the academy's immediate past president.

"What does an alleged father have to do and when does he have to do it to establish paternity to be deemed a parent and therefore have the right to participate in a planned adoption?" Demaray said.

A coalition of 18 child welfare organizations agreed that state and federal laws have long required biological fathers to take financial and other responsibility for a child in order to be deemed a legal parent.

However, the group filed a brief in support of Brown and the Cherokee Nation that urged the court to protect the Indian Child Welfare Act.

The act is the "gold standard" for ensuring the well-being of children by requiring efforts be made to develop bonds between a child and fit birth parents, said Linda Spears, vice president for policy and public affairs at the Child Welfare League of America.

"There's more at stake than the custody of just one child," said David Sanders, executive vice president for systems improvement at Casey Family Programs. "We want to ensure that the act does not become collateral damage in this emotionally charged legal action."

Jay McCarthy, an adoption attorney in Flagstaff, Arizona, said he hoped the justices would go beyond questions of paternity to define the rights of children.

"The Indian Child Welfare Act, which grants individuals and tribes statutory rights, does not trump the child's constitutional rights," McCarthy said.

"This case provides an excellent opportunity for the Supreme Court to finally, hopefully and at long last clarify: Does a child have a constitutional right to a secure and stable home? They've never reached that issue yet."

The case is Adoptive Couple v. Baby Girl, U.S. Supreme Court, 12-399.

(Editing by Colleen Jenkins and Eric Walsh)

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