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Supreme Court rule against biological father over American Indian girl

By Jonathan Stempel

(Reuters) - In a child custody case that one justice called heartbreaking, the U.S. Supreme Court said on Tuesday an American Indian girl now being raised by her biological father should not have been taken from a couple who had cared for her since just after birth under a law aimed at keeping Native American families together.

In a 5-4 ruling that prompted stirring dissents, the court said South Carolina's highest court misinterpreted the law last July in letting the girl, who is now 3-1/2 years old, remain in the custody of Dusten Brown, a member of the Cherokee Nation.

The girl, named Veronica, had earlier been in the care of Matt and Melanie Capobianco, a white couple from Charleston, South Carolina, after Brown renounced his parental rights by text message without taking custody and the birth mother gave her up for adoption.

But a family court ordered the girl be given to Brown under the Indian Child Welfare Act of 1978 after he changed his mind. That law was intended to curb abusive practices that caused many Native American children to be removed from their families.

Brown took custody in December 2011, when the girl was 27 months old, and moved to Oklahoma. Last July, South Carolina's highest court upheld the family court order regarding the girl, who according to court papers is 1.2 percent Cherokee.

Writing for the Supreme Court majority, Justice Samuel Alito said the South Carolina court erred in finding that the law protected Brown from losing his parental rights, or gave him a preference in caring for the girl.

"Under the State Supreme Court's reading," Alito wrote, "a biological Indian father could abandon his child in utero and refuse any support for the birth mother ... and then could play his ICWA trump card at the eleventh hour to override the mother's decision and the child's best interests."

Allowing such an outcome automatically would "unnecessarily place vulnerable Indian children at a unique disadvantage in finding a permanent and loving home," Alito added.

Matt Capobianco has worked as a Boeing technician. Melanie Capobianco has a doctorate in developmental psychology. They are known in court papers as Adoptive Couple, and the girl as Baby Girl.

ADOPTION EFFORT TO PROCEED

"We're thrilled," Mark Fiddler, a lawyer for the couple, said in an interview. "Adoption professionals have been perplexed for years over how the ICWA applies to voluntary adoption proceedings where the unwed father is Indian and the mother is not. The decision today clears up that confusion. It means my clients may proceed with efforts to adopt Veronica."

Charles Rothfeld, a lawyer for Brown, said the decision was "disappointing" but narrow. He said Veronica still lives with her biological father and stepmother, and is "thriving and happy. We are confident that ultimately the father will retain custody."

Cherokee Nation Principal Chief Bill John Baker also expressed disappointment, saying at a news conference: "Veronica Brown's best interests are served by her continuing to live in a loving home with her biological father."

The Capobiancos said in a statement they hope the decision will prevent "the tragic disruption of other adoptions."

Veronica was conceived while Brown had been engaged to the birth mother, who is of predominantly Hispanic background.

After renouncing his parental rights, Brown changed his mind after learning that his former fiancée had put the girl up for adoption and that the girl was under the Capobiancos' care.

"It's a pretty devastating opinion," said Dorothy Alther, executive director for California Indian Legal Services, which submitted a brief on Brown's behalf. "(It) impacts not only biological parents but also tribes, because it means they would have no right to intervene."

Alito was joined in his majority opinion by Chief Justice John Roberts, who has two adopted children, and Justices Anthony Kennedy, Clarence Thomas and Stephen Breyer.

Justice Antonin Scalia, who has nine children, dissented, saying the majority "needlessly demeans the rights of parenthood. (P)arents have their rights, no less than children do."

Justice Sonia Sotomayor also dissented, joined by Justices Ruth Bader Ginsburg and Elena Kagan and mostly by Scalia, saying the majority ignored Congress's intent "to rectify a perceived wrong that, while heartbreaking at the time," cannot be undone.

"However difficult it must have been for (Baby Girl) 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," she wrote. "Such a fate is not foreordained, of course. But it can be said with certainty that the anguish this case has caused will only be compounded by today's decision."

The case is Adoptive Couple v. Baby Girl et al, U.S. Supreme Court, No. 12-399.

(Reporting by Jonathan Stempel in New York; Additional reporting by Harriet McLeod in Charleston, South Carolina; Editing by Howard Goller and Will Dunham)

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