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Court: Child isn't required to go to Indian father

Tuesday - 6/25/2013, 6:40pm  ET

JESSE J. HOLLAND
Associated Press

WASHINGTON (AP) -- A divided Supreme Court ruled Tuesday that federal law doesn't require that a Native American girl be given back to her biological father, but also doesn't clear her adoptive parents to immediately regain custody of the now 3-year-old child.

In a resolution that one justice said could compound "the anguish this case has caused," the high court voted 5-4 to send the case back to courts in South Carolina to determine the final home for an adopted little girl named Veronica.

South Carolina courts originally said the 1978 Indian Child Welfare Act -- a federal law intended to keep Indian children from being taken from their homes and typically placed with non-Indian adoptive or foster parents -- favored her living with her biological father, who took custody of her in 2011. But the South Carolina couple who raised her for the first 27 months of her life appealed that decision, and justices have ordered her case reconsidered.

Justice Samuel Alito, writing for the court's majority, said the ICWA didn't apply in this case because the biological father never had custody of the child and abandoned her before birth. The law "doesn't apply in cases where the Indian parent never had custody of the Indian child," said Alito, who was joined in his opinion by Chief Justice John Roberts, and Justices Anthony Kennedy, Clarence Thomas and Stephen Breyer.

Alito also said the law doesn't stop non-Native Americans from adopting the child when no other eligible candidates stepped forward.

"The Act would put certain vulnerable children at a great disadvantage solely because an ancestor -- even a remote one -- was an Indian," Alito said. "A biological Indian father could abandon his child in utero and refuse any support for the birth mother -- perhaps contributing to the mother's decision to put the child up for adoption -- and then could play his ICWA trump card at the eleventh hour to override the mother's decision and the child's best interest. If this were possible, many prospective adoptive parents would surely pause before adopting any child who might possibly qualify as an Indian under the ICWA."

But Justice Sonia Sotomayor in her dissent pointed out that the court's ruling doesn't mean Veronica will now go back to her adoptive parents. The law gives tribes and relatives a say in decisions affecting a child, she said.

"The majority does not and cannot foreclose the possibility that on remand, Baby Girl's paternal grandparents or other members of the Cherokee Nation may formally petition for adoption of Baby Girl," she said. "If these parties do so, and if on remand, Birth Father's parental rights are terminated so that an adoption becomes possible, they will then be entitled to consideration under the order of preference established in" federal law.

Her dissent was joined by Justices Antonin Scalia, Ruth Bader Ginsburg and Elena Kagan.

Sotomayor said the court's decision turns the law "upside down, reading it from bottom to top in order to reach a conclusion that is manifestly contrary to Congress' express purpose in enacting ICWA: preserving the familial bonds between Indian parents and their children and, more broadly, Indian tribes' relationships with the future citizens who are 'vital to (their) continued existence and integrity.'"

Added Scalia in a separate dissent: "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."

The Obama administration, 18 states, several Indian tribes, current and former members of Congress and children's welfare groups filed briefs in support of the father. The National Council for Adoption and the American Association of Adoption Attorneys were among the groups that filed briefs in support of the South Carolina couple.

Dusten Brown, a member of the Cherokee Nation, invoked federal law to stop the adoption arranged by the girl's non-Indian mother when she was pregnant and the Charleston, S.C.-area couple, Matt and Melanie Capobianco. The couple was present at Veronica's birth in Oklahoma. Brown had never met his daughter and, after the mother rebuffed his marriage proposal, played no role during the pregnancy and paid no child support after Veronica was born.

But when Brown found out Veronica was going to be adopted, he objected and said the law favored the girl living with him and growing up learning tribal traditions.

South Carolina courts agreed and Brown took Veronica, now 3, back to Oklahoma at the end of 2011, even though she had lived with the Capobiancos for the first 27 months of her life.

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