High Court to Hear ICWA Adoption Case
The U.S. Supreme Court is going to hear a case involving the right of non-Native
parents to adopt a Native American child. In order for the Court to make
its decision, the Court will have to examine and interpret
the Indian Child Welfare Act of 1978 (more commonly referred to as “ICWA”).
Either way, the decision is a difficult one for any Court to make in the
Adoptive Couple v Baby Girl. At issue is whether 3-year-old “Baby Veronica” will stay
in Oklahoma with her biological father, or if she will go back to South
Carolina to be returned to a couple that had been attempting to adopt her.
This case began in 2009 when Veronica was born in Oklahoma to unwed biological
parents. The biological father and Cherokee Nation citizen, Dusten Brown,
was serving in Operation Iraqi Freedom and was unaware the biological
mother had put the baby up for adoption until later in the adoption process.
Attempting to adopt the child were the prospective
adoptive parents and non-Natives, Matt and Melanie Capobianco, from James Island, South
Carolina. The Capobianco’s had cared for Veronica from birth until
December 31, 2011, the date the Capobianco’s turned Veronica over
to Brown after he won custody of her in a South Carolina court. The Cherokee
Nation intervened in the adoption citing Veronica’s Cherokee heritage and ICWA.
The Capobianco’s appealed the matter to the South Carolina Supreme
Court, which heard the case during a closed hearing in April. On July
26, the court upheld a lower court ruling, weighing for the first time
state adoption law against the Federal provisions of ICWA.
In a 3-2 decision, the court said the act confers custodial preference
to the child’s father stating, “Where an Indian Child’s
best interests are at stake, our inquiry into that child’s best
interests must also account for his or her status as an Indian.”
The court further stated, “Baby Girl, as an Indian child, has a
strong interest in retaining ties to her cultural heritage.”
Simply put, the court in South Carolina had ruled that ICWA and its provisions
trump state law. Following that decision, the U.S. Supreme Court made
the decision to hear the case.
Our Los Angeles adoption attorneys will keep an eye on this emotional case, and we certainly look forward
to receiving some of your comments regarding this case.