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Challenge to child’s adoption fails

The Supreme Court, over the dissents of two Justices, cleared the way Friday afternoon for a South Carolina couple to adopt the child known publicly as “Baby Veronica.”  In a three-sentence order, the full Court turned aside — without an explanation — the plea by the birth father to delay a state court ruling permitting the transfer of the child from him; he is a member of the Cherokee Nation.

A family court in Charleston has finalized the adoption of the child, who will be four years old next month, by a non-Indian couple, Matt and Melanie Capobianco, who live near Charleston.  They had raised the little girl from birth, but then the child was sent to live with her father, Dusten Brown of Bartlesville, Okla., after the South Carolina Supreme Court ruled that the transfer was required by a federal Indian child welfare law.  That ruling, however, was itself overturned by the U.S. Supreme Court on June 25.

Although “Baby Veronica” has been living with her father for more than 18 months, his attempts to gain adoption for himself or for others in his family — an effort supported by the Cherokee tribe — have failed in state courts and were rebuffed by the Supreme Court, which ruled that the federal Indian law was no bar to the ending of his parental claim.

The father had then asked Chief Justice John G. Roberts, Jr., to postpone the South Carolina rulings against his claim and in favor of the Capobiancos’ adoption, and Roberts referred the request to the full Court.  In the order issued in mid-afternoon Friday, the father’s request for a stay was simply denied without comment.  The Court also allowed the filing of a brief by the child’s temporary legal guardian opposing any delay.

Two Justices — Ruth Bader Ginsburg and Sonia Sotomayor — noted that they would have granted the father’s request.  They did not say why, but they were among the dissenters when the Court ruled — by a five-to-four vote — against the father’s legal claim under the federal Indian law.  That decision came in Adoptive Couple v. Baby Girl (docket 12-399).

Although the votes of all of the Justices were not noted, the Friday order presumably had the support of the Chief Justice and Justices Samuel A. Alito, Jr., Stephen G. Breyer, Elena Kagan, Anthony M. Kennedy, Antonin Scalia and Clarence Thomas.   There was no notation that any of those Justices had not participated in the action.

The child apparently will not be sent immediately to live with the Capobiancos as her permanent adoptive parents.  Under a “transition plan,” the exact terms of which remain under seal in the Charleston family court, counselors have been named to work with the Capobiancos and with Brown’s family to arrange for a transfer that is supposed to be sensitive to both the child’s personal situation and the heritage of her father’s Indian tribal membership.   It is unknown when the actual transfer of the child will occur.

The adoptive parents have said that they will make efforts to assure that the child continues to share in her Indian heritage.

Although the father, his wife and his parents, along with the Cherokee Nation, have made repeated legal efforts to gain legal custody for him or some member of the family, it is not clear that they have any remaining legal options open to attempt.

Recommended Citation: Lyle Denniston, Challenge to child’s adoption fails, SCOTUSblog (Aug. 2, 2013, 4:45 PM),