Attorneys representing the James Island couple whose adoptive daughter was returned to her biological father under the federal Indian Child Welfare Act filed briefs with the U.S. Supreme Court this week in support of their position.
Last month, the high court agreed to hear the case involving the contested adoption of a 3-year-old girl named Veronica, or Little Star, as she is known to the Cherokee. The court has scheduled oral arguments in the case for April 16.
Attorneys for Matt and Melanie Capobianco of James Island argue that the “human tragedy” of removing Veronica from the couple’s home was neither mandated by the Indian Child Welfare Act nor permitted by the Constitution.
The guardian ad litem in the case also submitted a brief in support of the couple’s position, arguing that the lower court’s decision to return Veronica to her biological father is a perversion of the Indian Child Welfare Act.
The biological father, Dusten Brown, and his attorneys have not yet filed new briefs with the court in support of their case. They, however, have long maintained the lower courts properly interpreted the 1978 law, which aims to preserve American Indian families.
Brown’s supporters say the law was fairly applied, helping to reunite Veronica with her loving father and preserve their culture. They are hoping the high court will do nothing to change that.
The Capobiancos’ attorneys argue that the child’s father renounced his parental responsibilities when he told his fiancé at the time that he would not help support the baby, according to the brief.
In June 2009, the father responded to the mother in a text message that he was renouncing his parental rights, the brief stated. The mother later placed her baby, who had not yet been born, up for adoption. She chose Matt and Melanie Capobianco of James Island.
“Yet the decision below blames the birth mother and the adoptive couple — everyone except the Father, whose vanishing act triggered the adoption in the first instance,” the brief stated.
The mother’s attorney, before the adoption was finalized, notified the Cherokee Nation of the pending adoption. The letter provided the father’s full name but misspelled his first name as “Dustin” rather than “Dusten.” The adoption moved forward after the Cherokee Nation responded in September 2009 that, based on the information provided, Brown was not a member of the Cherokee Nation and that ICWA did not apply to the adoption proceeding.
Cherokee Nation officials later realized the error, confirmed Brown’s status with the tribe and have fought on his behalf.
When the father was notified of the adoption plans, he signed a document that stated he is the birth father and that he was not contesting the adoption. He soon changed his mind and contested the adoption, testifying that when he signed that form, he believed that he was signing away his rights to the mother of his child, the brief stated.
Brown later admitted that his behavior wasn’t becoming of a father, but said he would have been more involved if he knew Veronica was up for adoption.
“We do not doubt that some fathers who initially renounce a desire to be a parent may sincerely have a change of heart about parenthood upon learning of a mother’s adoptive placement. But our society has long barred unwed fathers from joining the game of child-rearing too late,” the Capobiancos’ brief states.
Attorneys argue that the window of opportunity for unwed fathers to embrace parenthood is limited by the law. The ICWA does not permit unwed fathers who act too late under state law to veto a mother’s adoptive placement, attorneys argue in the brief.
While the Supreme Court’s decision on this case will ultimately decide where Veronica will end up, it has the potential to affect the way thousands of adoptions are handled each year and alter the playing field for Native American groups from coast-to-coast.
The briefs contend that the justices will have to answer two questions: whether a non-custodial parent can invoke the Indian Child Welfare Act to block an adoption and whether the act defines “parent” to include an unwed biological father who did not take steps to obtain legal status as a parent.
The Capobiancos have not seen Veronica since a Charleston County Family Court ruling relinquished the girl to Brown on New Year’s Eve of 2011. He then took her home to live with him in Oklahoma.
The couple then appealed that decision, but failed to win over the state Supreme Court, which upheld the family court ruling by a 3-2 vote in July.
The justices said they ruled with “a heavy heart,” but they were bound by law to give Brown an edge. Though Brown did not support the girl’s mother during pregnancy, his rights as a parent should not be stripped, the court confirmed.