Supreme Court sides with adoptive family in divisive custody battle for Native American child

Published: Tuesday, June 25 2013 12:20 p.m. MDT

WASHINGTON — The Supreme Court on Tuesday ruled against the biological father of a 4-year-old girl who was placed for adoption. The case, Adoptive Couple v. Baby Girl, centered on whether a Native American who was the biological father of a child could stop the adoption under provisions of the Indian Child Welfare Act.

By a 5-4 vote, the court voided the decision that removed the little girl from a white couple that wanted to adopt her and that had her from the time she was born until she was 27 months old. At that time, the South Carolina Supreme Court gave custody to her biological father, a Cherokee Indian. She has been with him for the past 18 months.

The court held that the Indian Child Welfare Act does not bar termination of the father's parental rights. The ruling does not, however, send her straight back to those would-be adoptive parents. It sends the case back to South Carolina for further proceedings.

The back story

The mother was white and the father, Dusten Brown, is a member of the Cherokee tribe. The parties involved have long since been identified by name publicly, though that's usually not the case when child custody is involved. Brown and the mother were engaged when the baby was conceived, but they broke up. Brown said he wanted to marry or he didn't want to support the baby. The mother decided to put the baby up for adoption and selected a South Carolina couple, Melanie and Matt Capobianco. They cared for her for the first 27 months of her life.

Meanwhile, when he was notified of the adoption plans when the baby was 4 months old, the biological father sued to prevent it, citing the Indian Child Welfare Act.

He was estranged from the biological mother at the time of the baby's birth and had not provided support during the pregnancy. Had he not been Native American, there would be no question his consent was not needed for adoption. But the South Carolina Supreme Court ruled that under the protections afforded by the Indian Child Welfare Act, he had a right to stop the adoption. The court gave the biological father custody of the child and there she has remained in the year and a half since.

Veronica, the baby, is 1.2 percent or 3/256 Cherokee. She falls under a "strict reading" of the act because her biological father is a member of the tribe.

The ruling

The Supreme Court didn't decide whether the biological father had paternal rights. It assumed them. He had acknowledged paternity and then he proved it with a DNA test. Because the court assumed he had paternal rights, analysts say the decision may not have much impact on putative father rights in general. It remains to be seen.

Instead, the Supreme Court focused on provisions of the Indian Child Welfare Act dealing with termination of parental rights. The act was designed to "prevent the involuntary dissolution of an existing Indian family." The court held there was no existing family, since the biological father had not taken steps to create one by providing any type of support to the mother. That meant another requirement of the act, which requires a party that wants a father's parental rights terminated to demonstrate that “active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family,” was moot. A nonexistent Indian family can't be broken up.

The biological father's side also cited a provision in the act that required showing "continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child" as a measure for terminating parental rights. Since he'd never had custody of the child before the case started winding its way through the courts, the Supreme Court held that wasn't relevant.

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