Indian girl, 3, in new tug of war

High court says state court must reconsider adoption

WASHINGTON — 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 regain custody of the 3-year-old child immediately.

Justices voted 5-4 to send the case back to courts in South Carolina to determine the final home for Veronica, raised by a South Carolina couple for the first 27 months of her life.

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 the Supreme Court has ordered her case reconsidered.

Justice Samuel Alito, writing for the court’s majority, said the Indian Child Welfare Act didn’t apply in this case because the biological father never had custody of the child and abandoned her before birth.

Alito was joined in his opinion by Chief Justice John Roberts, and Justices Anthony Kennedy, Clarence Thomas and Stephen Breyer.

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

“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,” Alito said.

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

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

In a separate dissent, 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.”

The Obama administration, 18 states, several Indian tribes, members of Congress and children’s welfare groups filed briefs in support of the father.

Dusten Brown, a member of the Cherokee Nation, invoked federal law to stop the adoption arranged by the girl’s non-Indian mother and the Charleston, S.C.-area couple, Matt and Melanie Capobianco. The couple was 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, though she had lived with the Capobiancos for the first 27 months of her life.

Tuesday’s high court ruling returns the case to South Carolina court.

Sotomayor said “the anguish this case has caused will only be compounded” by the court’s ruling if another change is made in the girl’s living arrangements.

“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 three and a half, she is again removed from her home and sent to live halfway across the country.”