Split court said Indian Child Welfare Act does not apply.
WASHINGTON – Melanie Capobianco sat alone at the computer in her Charleston, S.C., home Tuesday morning, not for the first time, anxiously searching among the weighty decisions being issued by the Supreme Court for the one that matters most to her.
Then, there it was: Adoptive Couple v. Baby Girl, the case that could determine whether she would ever live again with the little girl she had raised for the first 27 months of her life.
She was confused by the words. Then e-mails poured in and lawyers called and then there was one phone call she had to make — to her husband, Matt. All she could think to say was this: “We won.”
For now, at least. The Supreme Court ruled 5-4 that the Indian Child Welfare Act did not command that custody of “Baby Veronica” must remain with her birth father, Dusten Brown, with whom she has lived for the last 18 months of her life.
The court sent the case back to lower courts and, as has been the case for all her young life, more judges will determine which of the adults who love Veronica will be allowed to care for her.
And just as there was joy in Charleston, there was disbelief in Nowata, Okla., where Baby Veronica, who will soon outgrow her Internet name, lives with Brown and his new wife.
“I would say devastated is a good word to use,” said Chrissi Nimmo, assistant attorney general for the Cherokee Nation.
The case has drawn national attention. The Capobiancos were ordered by the South Carolina Supreme Court in 2011 to turn over the girl to the American Indian father who once gave up rights to her but now has embraced parenthood.
But Justice Samuel Alito, writing for the majority, said the ICWA did not require that outcome.
Congress passed the law in 1978 to discourage adoptions outside tribes, erecting high hurdles for ending Indians’ parental rights. Lawmakers sought to end what they found to be a shameful practice of removing Indian children from their tribes to place them with non-Indian families.
But the law does not apply, Alito said, when “the parent abandoned the Indian child before birth and never had custody of the child.”