• The Washington Post


The Supreme Court added an emotional case to its docket Friday, agreeing to review a lower court’s decision that federal law requires a couple to return the child they cared for since birth to her Native American father.

The South Carolina Supreme Court, saying it acted with a “heavy heart,” agreed that Matt and Melanie Capobianco had to return Veronica, now 3, to her father, Dusten Brown, a registered member of the Cherokee Nation in Oklahoma. The court voted 3-2 that the 1978 Indian Child Welfare Act (ICWA), passed to make it harder to remove children from Indian parents, trumps state law.

The Capobiancos “are ideal parents who have exhibited the ability to provide a loving family environment” for the girl, Chief Justice Jean Hoefer Toal wrote. But “because this case involves an Indian child, the ICWA applies and confers conclusive custodial preference to the Indian parent.”

The girl has been living with Brown and his parents in Oklahoma since the beginning of 2012.

The case, Adoptive Couple v. Baby Girl, used no names in the court documents. But the battle over the girl has attracted national attention, with the Capobiancos pleading their case on “Dr. Phil” and Indian activists defending the law as a necessary measure to protect tribal heritage, as well as an answer to generations of abuse in removing children from their Indian parents.

The Supreme Court has experience in the emotional toll of such cases.

Justice Antonin Scalia for years has said a previous case involving the ICWA was one of the toughest of his career. In that 1989 case, Mississippi Band of Choctaw Indians v. Holyfield, Scalia in the majority said the law required tribal courts to make decisions about Indian adoptions, even though this meant toddler twins might have to be removed from their adoptive parents. In the end, a tribal court decided to leave the children where they were.

The facts of the current case are no less wrenching. The child is the product of what appears to be a stormy relationship between Brown and her mother. The two became engaged in December 2008, and she informed him a month later that she was pregnant. Brown at the time was serving in the army in Oklahoma.

Brown advocated for moving up the wedding. The child’s mother resisted, and the relationship soured. She broke it off in a text message in April.

In June, she asked Brown if he wanted to support the child or give up his parental rights. In another text message, he replied that he would give up his rights, but later said the move had been intended to pressure his former fiance to reconsider marriage.

The mother, however, who already has two other children by another father, had by then decided to give up the baby, and the Capobiancos were eager to adopt. Matt Capobianco works for Boeing and his wife has a doctorate in developmental psychology. He cut the umbilical cord when the girl was born.

But Brown said that he was shocked when, just before shipping out for Iraq, he learned that the child was being put up for adoption. He called a lawyer and started the legal process that has wound up at the Supreme Court.

A South Carolina family court judge and a majority of the state’s top court justices said the ICWA mandates a clear preference for keeping the child with her biological Indian father, and there is no evidence that he is not a fit parent.

Both the girl’s mother and a guardian appointed to look out for the child’s interests sided with the Capobiancos, as did Justice John Kittredge. He said the court’s majority “has recast the facts to portray father in an undeserved favorable light. . . . The reality is father purposely abandoned this child and no amount of revisionist history can change that truth.”

The Supreme Court will look at whether it matters under the federal law that Brown is an unwed father who had given up his rights to the child. The justices will likely hear the case in April, along with two other cases accepted Friday.

One of them, United States v. Davila, concerns a federal judge’s role in a defendant’s decision to accept a plea bargain. The U.S. Court of Appeals for the 11th Circuit in Atlanta ruled that a magistrate judge’s involvement leading to the plea deal means the guilty plea must be thrown out. Other courts have said the plea should be overturned only if the judge’s action could be seen as inducing the defendant to take the deal.

The other, Tarrant Regional Water District v. Herrmann, concerns a water dispute between Fort Worth and Oklahoma over drawing water from the Red River.

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