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By LL Bureau|Email the author|Aug 04,2013   (2398 views)
An American Indian child being raised by her biological father should not have been taken from her adoptive parents, the Supreme Court ruled recently, saying that a federal law devised to keep Indian families together did not apply in the case.

The 5-to-4 decision, which reversed aruling by the South Carolina Supreme Court, found that the case represented an exception to the 1978 Indian Child Welfare Act, a federal law that made it more difficult for American Indian children to be removed from their families. That landmark legislation effectively ended the practice of taking Indian children from their homes and placing them in boarding schools and foster care.

The court`s majority held Tuesday that the case, Adoptive Couple v. Baby Girl, No. 12-399, did not involve removing a child from an Indian home because the girl`s father had relinquished his parental rights before the girl`s birth and her biological mother had agreed to allow the South Carolina couple to adopt the girl.

Four months after the child`s birth, the father, Dusten Brown, a member of the Cherokee tribe, changed his mind and sought custody of his daughter. He said he had not realized that his former fiancée was going to put the child up for adoption.

The girl was in the process of being legally adopted by Matt and Melanie Capobianco, a white couple who raised her for 27 months before South Carolina courts ruled in favor of Mr. Brown. The child, now nearly 4, has been living with Mr. Brown in Oklahoma for the past year and a half. The state courts found that both the Capobianco family and Mr. Brown had provided the girl with safe, loving homes.

The Baby Veronica case, named for the girl at the center of the dispute, has stirred powerful emotional responses from child welfare groups, adoptive parents and Indian tribes, all of whom have sought a clearer legal standard of how the Indian Child Welfare Act should be applied when it appears to conflict with state law. In the Baby Veronica case, for instance, South Carolina law would have allowed the toddler to remain with the Capobiancos, but that state`s courts found that Mr. Brown`s parental rights under the federal law trumped state law.

The Supreme Court ruling however, decided the case along fairly narrow lines.

Justice Samuel A. Alito Jr. wrote for the court`s majority that the Indian Child Welfare Act `does not apply where the Indian parent never had custody of the Indian child.`

Instead, Justice Alito wrote, the federal law `was designed primarily to counteract the unwarranted removal of Indian children from Indian families,` not as part of a custody dispute in which `an Indian child`s adoption is voluntarily and lawfully initiated by a non-Indian parent with sole custodial rights.`

Justice Alito was joined in the majority opinion by Chief Justice John G. Roberts Jr. and Justices Anthony M. Kennedy, Clarence Thomas and Stephen G. Breyer. Justices Thomas and Breyer concurred separately.

Justice Sonia Sotomayor wrote the principal dissent, joined by Justices Ruth Bader Ginsburg and Elena Kagan.

Justice Antonin Scalia, who agreed in part with the dissent, wrote that the court`s majority opinion `needlessly demeans the rights of parenthood,` and added: `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.`

Mark D. Fiddler, a lawyer for the Capobianco family, said the adoptive parents burst into `tears of joy` when the ruling was announced. They planned to return to the South Carolina state court system, which Mr. Fiddler said needed to figure out how to ease Veronica`s transition back to the Capobiancos and address a pending adoption.

But when, or even if, Veronica will be sent back to the Capobiancos is far from clear.

`This is his daughter, his whole life,` John Nichols, one of Mr. Brown`s lawyers wrote in an e-mail on Tuesday. `He will fight for her right to stay with her family. He loves her and she loves him, and he`ll do whatever it takes to keep his daughter.`

Mr. Brown said in a statement that he was `very disappointed` with the decision and that his daughter was part of a happy and loving extended family.

`I would not want any other parent to be in this position, having to struggle this hard and this long for the right to raise their own child,` he said. `I have fought for my daughter and will continue to fight for her and her right to be raised by her family.`

Family courts ordinarily base custody decisions on the best interests of the child before them. Joan Heifetz Hollinger, a law professor at the University of California, Berkeley, who filed a brief in support of the child`s interests, said that if the State of South Carolina holds a custody hearing for Baby Veronica that `there would be strong presumption that the child`s best interests are to allow her to remain where she is, absent evidence of abuse or neglect by dad.`

`If, however, the court resumes the original adoption proceeding,` she said, `the outcome is likely to be in favor of a return to the adoptive parents.`

News Courtesy : The New York Times
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