Court agrees with return of Native American girl to Oklahoma father
BY MEG KINNARD Associated Press
Thursday, July 26, 2012
7/26/12 at 1:53 PM
COLUMBIA, S.C. — The South Carolina Supreme Court on Thursday upheld the return of a Native American girl adopted by a South Carolina family to her father in Oklahoma, weighing for the first time state adoption law against the federal Indian Child Welfare Act.
In a 3-2 decision, the justices said the act confers custodial preference to the child's father, a member of the Cherokee tribe.
"Adoptive Couple are ideal parents who have exhibited the ability to provide a loving family environment for Baby Girl," said the opinion written by Chief Justice Jean Toal.
Toal said that it is with "a heavy heart that we confirm the family court order" but that preference must be given to the Native American parent under federal law. Because it is an adoption case, the order did not mention specific names for privacy reasons.
The court used as its guide the federal Indian Child Welfare Act, passed in 1978 because of the high number of Indian children that at the time were being removed from their homes by public and private agencies. The act gives the child's tribe and family the right to have a say in decisions affecting the child.
In this case, now-2-year-old Veronica was adopted by Matt and Melanie Capobianco, who live on James Island just outside Charleston. They attended the girl's birth and cared for her thereafter.
The girl's father, Dusten Brown, a member of the Cherokee Nation, later went to court seeking custody. A South Carolina court awarded Brown custody of the child, and he arrived in Charleston on New Year's Eve with his parents to take the girl back to Oklahoma.
The adoptive parents appealed, and the Supreme Court heard the case during a closed hearing in April. During the girl's time with the Capobiancos, the court wrote, the family has likely formed a significant bond. But that isn't enough to keep her from her biological father, given the constraints of the federal law.
"While we are conscious that any separation will cause some degree of pain, we can only conclude from the evidence presented at trial that Father desires to be a parent to Baby Girl, and that he and his family have created a safe, loving and appropriate home for her," the court wrote.
The justices also wrote that while determining what is in the child's best interest is of high importance in a custody case, the girl's Native American heritage also plays a key role.
"Where an Indian child's best interests are at stake, our inquiry into that child's best interests must also account for his or her status as an Indian," the court wrote. "Baby Girl, as an Indian child, has a strong interest in retaining ties to her cultural heritage."
Justice John Kittredge, in his dissent, said he would have approved the adoption by the South Carolina couple.
"Today the Court decides the fate of a child without regard to her best interests and welfare," he wrote. "Father purposely abandoned this child and no amount of revisionist history can change that truth."
Messages left with Brown's attorney and the Cherokee Nation were not immediately returned Thursday. The Capobiancos said they were saddened by the ruling.
"We love our little girl deeply and only want what is best for her," they said. "This decision will prevent us from having any involvement in her life. Our hearts are completely broken."
Family spokeswoman Jessica Munday said the couple could appeal the case to the U.S. Supreme Court but hadn't decided what to do next.
"The law is meant to preserve and protect children. It was not meant to devastate individuals, Native American or non-Native American," she said. "And the reality is that's what's happening."
Terry Cross, the executive director of the National Indian Child Welfare Association based in Portland, Ore., said the ruling was consistent with others across the country.
"The National Indian Child Welfare Association commends the court's affirmation of the rights of Veronica's biological father," Cross said.
Bruce Smith contributed to this report form Charleston.
Veronica Capobianco is carried by her biological father Dusten Brown escorted by his lawyer Shannon Jones after she was turned over to him by her adoptive parents Matt and Melanie Capobianco. The South Carolina Supreme Court on Thursday upheld the return of Veronica to her father in Oklahoma. GRACE BEAHM/postandcourier.com