The US Supreme Court will hear arguments Tuesday from a couple ordered to turn over the two-year-old girl they had raised since birth to her biological father because he is a Native American.
It is the first time in 14 years and the second time ever that the nation’s top court will rule on the Indian Child Welfare Act of 1978, which was intended to prevent Native American children from being separated from their families.
Matt and Melanie Capobianco are appealing a 2011 family court decision that annulled their adoption and transferred custody to Dusten Brown after DNA tests proved his paternity.
That decision was upheld in July, when the South Carolina Supreme Court ruled with a “heavy heart” in favor of the biological father, a decision the dissenting justices described as a “human tragedy.”
Brown had renounced his parental rights during the pregnancy, but changed his mind after the adoption. The South Carolina Supreme Court ruled that the Indian Child Welfare Act superceded state law that had approved the adoption.
But the adoptive parents, who are supported by the biological mother, protested in their appeal to the US Supreme Court that the ICWA does not apply in 11 other US states where Native American tribes are located, and the judgement would have been different if the adoption took place elsewhere.
The ruling “sends a chilling message to any couple wishing to adopt a child of Native American descent,” the adoptive parents added, requesting that the US Supreme Court provide “much-needed clarity” on the federal statute.
The Capobiancos had made seven unsuccessful in vitro fertilization attempts before the adoption.
They also financed part of the medical costs for the child’s birth mother, met the woman, who was not Native American, attended the September 2009 birth and returned to South Carolina with the girl when she was just eight days old.
Now three years old, the child lives with Brown in Oklahoma. In his response to the high court, Brown, supported by the Cherokee Nation, asserted that “he is a parent under the ICWA,” which is “tied to the US’ obligations to Indians.”
The US Supreme Court is due to make a ruling before the end of its session in June.