Story highlights

The Cherokee father of the infant argues for custody of his daughter

He says the birth mother initiated adoption without his knowlege

A couple from South Carolina adopted the 3-year-old

The high court has said the adoption was proper, now says it won't intervene further

Washington CNN —  

A white couple from South Carolina has been given the go-ahead to regain custody of a Native American child, after the U.S. Supreme Court on Friday refused again to intervene in the divisive adoption proceedings.

The justices issued a brief order denying a request to temporarily block transfer of the 3-year-old girl from her birth father, a registered member of the Cherokee Nation. State courts in recent weeks have finalized the adoption back to Matt and Melanie Capobianco, who live near Charleston. They had legally adopted “Baby Veronica” before Dusten Brown – the birth father – asserted his custody rights under an unusual federal law.

Justices Ruth Bader Ginsburg and Sonia Sotomayor opposed the high court’s latest order, indicating they would have granted the stay.

It is not clear when the child would be reunited with her adoptive parents, and whether further appeals would be filed. A family court in South Carolina this week had developed a “transition plan” to help ease any transfer, taking into account the child’s age, the sensitivities of the parties involved, and Indian heritage dynamic underlying the larger legal dispute.

The high court in late June said the adoption by the white couple was proper and did not intrude on the federal rights of the father, over where his daughter would live. The child turns 4 next month.

The 5-4 majority said the father could not rely on the Indian Child Welfare Act for relief because he never had legal or physical custody at the time of adoption proceedings, which were initiated by the birth mother without his knowledge.

Justice Samuel Alito said when “the adoption of an Indian child is voluntarily and lawfully initiated by a non-Indian parent with sole custodial rights, the (law’s) primary goal of preventing unwarranted removal of Indian children and the dissolution of Indian families is not implicated.”

The original appeal was filed by the Capobiancos, who legally adopted Veronica in 2009 shortly after the birth mother agreed to give up the child. She is known in court papers as “Baby Girl.”

The South Carolina Supreme Court originally ruled last year for Brown, who had sought custody after Veronica’s birth. He is a registered member of the Cherokee Nation and is raising the child in Oklahoma.

The Indian Child Welfare Act remains in effect, but the high court majority concluded the biological father could not apply it to his circumstances.

The Supreme Court ruling threw the issue back to the state courts, which subsequently ruled for the Capobiancos. That prompted fresh appeals from Brown.

There was no immediate reaction to the high court order from the Capobiancos, Brown, or the Cherokee Nation. But Native American groups had remained hopeful he would still keep custody.

Several parties have a stake in what happens to this girl: Her biological mother and father, the adoptive parents, the federal government, the Oklahoma-based tribe, and a legal guardian appointed by the state to represent the child’s interests.

Brown had earlier signed a legal document agreeing to put the girl up for adoption, but his attorneys say he did not understand the extent of the waiver, and that the birth mother misrepresented the child’s American Indian heritage to social service workers when the adoption was finalized.

At issue was whether Brown, as the onetime noncustodial father, can gain parental custody, after the non-Indian mother initiated an adoption outside the tribe.

A special congressional law governs such interstate adoptions, since the current 556 federally recognized tribes all fall under Interior Department oversight, giving those tribes certain unique benefits and rights.

The Capobianco’s lawyers had argued federal law does not define an unwed biological father as a “parent.”

The Indian Child Welfare Act was a response to decades of often abusive social service practices that resulted in the separation of large numbers of native youngsters from their families, in many cases to non-Indian homes.

The legislation was designed to “promote the stability and security of Indian tribes and Indian families by the establishment of minimum federal standards to prevent the arbitrary removal of Indian children from their families and tribes and to ensure that measures which prevent the breakup of Indian families are followed in child custody proceedings.”

Brown’s relationship within the “federally recognized government” of the Cherokee Nation means Veronica is a member of the tribe and subject to its jurisdiction.

“It’s not anyone’s intent ever to rip a child away from a loving home,” said Todd Hembree, the Tahlequah, Oklahoma-based tribe’s attorney general. “But we want to make sure those loving homes have the opportunity to be Indian homes first.”

Brown argues that he successfully established paternity under state law, and qualified as a “parent” under the child welfare act, thereby giving him proper control and custody of his daughter.

He said in legal papers that the child was conceived when the couple was engaged. But he claims that the biological mother, who claims Hispanic heritage, broke off the now-strained relationship by text message.

He agreed to relinquish his parental rights in exchange for not paying child support, but said the mother never indicated she intended unilaterally to give the child up for adoption.

And Brown claims the biological mother tried to “conceal” his Indian heritage during the adoption process with the Capobiancos.

Establishing such heritage would normally make it very difficult for the Cherokee Nation and state social services to agree to any non-Indian adoption and removal from the state. On the flip side, without that designation, state law would have made it hard for Brown to get custody.

By this time, Brown went to Iraq on a one-year deployment in the U.S. Army, delaying efforts to press his custody claims.

The infant lived with the Capobiancos for two years before South Carolina’s highest court ruled for the father. Brown took his daughter back to Bartlesville, Oklahoma, on New Year’s Eve 2011.

That state court said Brown had “a deeply embedded relationship” with his American Indian heritage, in which Veronica will be raised.

The latest appeal is Birth father v. Adoptive Couple (13A115).