Harriet McLeod/Reuters
Melanie and Matt Capobianco talk to reporters in Charleston, South Carolina, on June 25. The U.S. Supreme Court ruled this morning that 3 1/2 year-old Veronica, being raised by her biological father, should not have been taken from the couple who had cared for her since just after birth under a law aimed at keeping Native American families together.
Courtesy of Melanie Capobianco/AP
This October 2011 photo provided by Melanie Capobianco shows her adoptive daughter Veronica trick-or-treating in Charleston, S.C. A divided Supreme Court said Tuesday that federal law doesn't require that a Native American child be taken away from her adoptive parents and given to her biological father. The justices' 5-4 decision came in a case about a federal law intended to prevent Indian children from being taken from their homes and placed with non-Indian adoptive or foster parents.

Baby Veronica: Supreme Court rules for adoptive parents in wrenching case

The Supreme Court decided that since the father never had custody of Baby Veronica prior to litigation in the case, a federal law upholding the rights of Native-American parents offered him no protection.

The US Supreme Court ruled in a heart-wrenching child custody case on Tuesday, voting 5 to 4 that the toddler at the center of the dispute should be raised by her adoptive parents rather than her biological father.

The court decided that since the father had never had physical custody of the little girl prior to litigation in the case, a federal law that upholds the rights of Native-American parents offered him no protection.

The decision means that the girl faces the prospect of, once again, being uprooted from a family and being sent under court order to live with someone different in a different state.

The girl, named Veronica, had been raised for more than two years by her adoptive parents in South Carolina. After her biological father challenged the adoption, state courts ordered her to be turned over to her father and his family to live in Oklahoma.

She has lived in Oklahoma for the past 18 months.

The emotional child-custody dispute has drawn extensive media coverage highlighting the bitter tug-of-war between, on one side, the loving professional couple from Charleston who adopted the child in an arrangement with the unwed mother, and, on the other, the biological father who refused to provide financial support to the birth-mother and avoided contact with the mother and child.

Under state law, a father who refuses to provide such support generally loses any claim to parental rights.

But the father in this case, Adoptive Couple v. Baby Girl (12-399), is a member of the Cherokee Nation and is thus covered by a federal law that generally bars the adoption of a Native-American child by non-Indians.

The issue in the case was whether the 1978 Indian Child Welfare Act (ICWA) barred Veronica’s adoption, despite the father’s lack of involvement in caring for the expectant mother and their child.

On Tuesday, the high court ruled that it did not bar such an adoption. Writing for the majority, Justice Samuel Alito said the ICWA would not protect the rights of a father who had never had custody of his child. He added that the ban on non-Indian adoptions under the ICWA did not apply when the “parent abandoned the Indian child before birth and never had custody of the child.”

Justice Alito added that the ICWA also does not “bar a non-Indian family like Adoptive Couple from adopting an Indian child when no other eligible candidates have sought to adopt the child.”

But the case may be far from over. In a dissenting opinion, Justice Sonia Sotomayor said it is possible that Veronica’s paternal grandparents might assert authority under the ICWA to adopt her.

If they did so, Justice Sotomayor said, they may then be entitled to preferential consideration as required by the ICWA.

In her dissent, Sotomayor said the majority justices had turned the ICWA upside down, distorting the statute “to rectify a perceived wrong.”

Sotomayor observed that the court’s decision may have set the stage for even more emotional turmoil.

“Baby Girl has now resided with her father for 18 months. However difficult it must have been for her to leave Adoptive Couple’s home when she was just over 2 years old, it will be equally devastating now if at the age of 3-1/2, she is again removed from her home and sent to live halfway across the country,” Sotomayor wrote.

“Such a fate is not foreordained, of course,” she said. “But it can be said with certainty that the anguish this case has caused will only be compounded by today’s decision.”

The high court’s decision reverses a ruling by the South Carolina Supreme Court that the ICWA required that the girl be turned over to her biological father.

“When an Indian parent abandons an Indian child prior to birth and that child has never been in the Indian parent’s legal or physical custody, there is no ‘relationship’ that would be discontinued” and thus trigger ICWA protections, Alito wrote.

He added: “In such a situation, the breakup of the Indian family has long since occurred.”

In a brief dissent, Justice Antonin Scalia said he felt the majority decision “needlessly demeans the rights of parenthood.”

“We do not inquire whether leaving a child with his parents is in the best interests of the child,” he said. “It sometimes is not; he would be better off raised by someone else.”

“But parents have their rights, no less than children do,” Scalia said. “This father wants to raise his daughter, and the statute amply protects his right to do so. There is no reason in law or policy to dilute that protection.”

Although the initial facts of the case paint the father as an uncaring, unsupportive person who was undeserving of parental rights, the underlying facts of the case present a more complex picture.

At the time the birth-mother learned she was expecting a child, she and the father were engaged to be married. After learning of the pregnancy, the father suggested they move their wedding date up so that the child would be born into a family with a married mother.

The birth-mother disagreed. She wanted immediate financial assistance, but refused to get married. He wanted to get married but refused to provide financial assistance until that happened. The relationship soured.

The mother then arranged for the adoption. She did not notify the father of the pending adoption until 12 days before the father, a soldier in the US Army, was set to deploy to Iraq for 11 months. (The paperwork for the adoption had been filed four months earlier in South Carolina.)

When the father learned of the adoption, he immediately objected and began efforts to block it. The father’s lawyers maintain that if the adoption had been disclosed properly to the father and to the state of Oklahoma, it would have never been approved over the objection of the father and the Cherokee Nation.  

The key issue in the case was the father’s ability to apply the protections of the 1978 Indian Child Welfare Act.

The ICWA generally bars adoption of a Native-American child by non-Indians.

The law was passed in response to abusive child welfare practices in the 1970s by state officials who had removed 25 percent to 35 percent of Indian children from their parents’ homes and placed them for adoption. Ninety percent of the resulting foster parents were non-Indians.

The ICWA was designed to protect Indian culture and heritage and sustain the tribes by permitting Native-Americans to raise their own children.

Lawyers for the adoptive couple had argued that the biological father forfeited his parental rights. They noted that the birth mother was Hispanic, rather than Native American. The child was determined to be 3/256ths Cherokee.

In a statement after the decision, the adoptive couple, Matt and Melanie Capobianco, said they were grateful for the court’s ruling. “We are also hopeful that today’s decision will prevent the tragic disruption of other adoptions and prevent this heartbreak from happening to other families.”

Veronica’s birth mother, Christinna Maldanado, also issued a statement. “Today’s opinion makes clear that Veronica’s adoption should have been finalized long ago,” she said.

She added that Matt and Melanie were part of her life and that they had treated her like she was part of theirs. “I’m hopeful that we will all be reunited with Veronica very soon,” she said.

Joining Alito in the majority were Chief Justice John Roberts, and Justices Anthony Kennedy, Clarence Thomas, and Stephen Breyer. Joining Sotomayor's dissent were Justices Scalia, Ruth Bader Ginsburg, and Elena Kagan. 

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