Melanie Capobianco

The Supreme Court ruled a father had given up his right to his daughter Veronica.

Indian dad loses child custody case

Published: Wednesday, Jun. 26, 2013 - 12:00 am | Page 14A
Last Modified: Thursday, Jun. 27, 2013 - 8:48 am

WASHINGTON – A 27-month-old girl who lived with adoptive parents in South Carolina since her birth was handed over to a biological father she had never met in 2011.

Now, 18 months later, a Supreme Court decision will likely send her back to the adoptive parents.

The court ruled in a 5-4 decision that the Indian Child Welfare Act, a federal law granting extra protections to American Indian parents, did not protect the father's right to his biological child in this case.

The baby was conceived while her parents were still engaged, but her non-Indian mother broke off the engagement before she was born. When the mother asked the American Indian father if he would rather pay child support or give up his rights to the child, he replied that he would relinquish his rights.

The father changed his mind after learning the mother had given the baby up for adoption to a couple in South Carolina; he hired a lawyer and sued for custody from the non-Indian couple.

A lower court granted him custody under a federal law called the Indian Child Welfare Act.

If he had not been American Indian, the law clearly states he would have no right to the child, who was 1.2 percent Cherokee.

The Supreme Court on Tuesday reversed that decision, ruling that the law's language on protecting parents' "continued custody of the child" refers to a parent already having custody who has that custody taken away.

"(The law) is inapplicable when, as here, the parent abandoned the Indian child before birth and never had custody of the child," Justice Samuel Alito wrote for the majority.

Congress enacted the law in 1978 after a study revealed that 25 percent to 35 percent of American Indian children were being separated from their homes in favor of foster or adoptive care, mostly because of culturally insensitive child welfare laws.

Justice Sonia Sotomayor dissented, writing that she would uphold the lower court's ruling for the biological father's custody.

"The majority … ignores Congress' purpose in order to rectify a perceived wrong that, while heartbreaking at the time, was a correct application of federal law and that in any case cannot be undone," she wrote. "It can be said with certainty that the anguish this case has caused will only be compounded by today's decision."

The case resulted in an odd divide among the justices, with Chief Justice John Roberts and Justices Anthony Kennedy, Clarence Thomas and Stephen Breyer joining Alito in the majority.

Justices Sotomayor, Antonin Scalia, Ruth Bader Ginsburg and Elena Kagan dissented.

© Copyright The Sacramento Bee. All rights reserved.

Read more articles by Kate Irby



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