COLUMBIA, S.C. -- The U.S. Supreme Court could reshape long-standing federal law on the adoption of American Indian children, depending on how the justices rule in the case of a South Carolina family fighting for custody of their adopted daughter.
That law is at the center of an appeal by Matt and Melanie Capobianco, a Charleston-area couple who adopted Veronica, now 3, as a baby. The girl's biological father, a member of the Cherokee Nation, went to court later to seek custody, arguing that the girl's mother gave her up without his consent.
A state court agreed with Dusten Brown, who took his biological daughter back to Oklahoma in 2011. The Capobiancos challenged that decision in the state's high court, saying they had bonded with Veronica and that removing her would be detrimental to her development. State justices sided with Brown last summer, saying that while the Capobiancos were "ideal parents," federal law gives custodial preference to the child's tribal parent.
The state court used the Indian Child Welfare Act as its guide. The law was enacted in 1978, when a high number of American Indian children were being removed from their homes by public and private agencies.
The U.S. Supreme Court ruled in 1989 that it was up to tribal courts to make decisions about tribal adoptions. In that case, however, a tribal court ultimately ruled that a set of toddler twins could stay with their adoptive, nontribal parents. The federal court has not yet set a date to hear the Capobiancos' case.
The couple's adoption attorneys knew these issues might come up after writing the tribe to determine whether Veronica had Cherokee heritage, said Marcia Zug, professor of tribal issues at the University of South Carolina. "They didn't get any kind of green light from the tribe," Zug said. "What should have happened was follow up, get more information. If that had happened, she should have been placed with her father."
Some adoption advocates say it's high time to revisit what they call an antiquated law. One of them, Johnston Moore of the group Home Forever, had a personal experience with the law when a tribal relative of one of his adopted sons came forward. No one had known about the boy's heritage during the adoption.
"Though these boys themselves had not changed when this relative came forward, nor had their attachment to us, the system's perception of them had changed," Moore said.