Dusten Brown and daughter Veronica at home in Nowata, Okla. Shortly after… (Jeremy Charles / Washington…)
WASHINGTON — The Supreme Court was asked Tuesday to decide who should raise a 3 1/2-year-old girl who was given up by her single mother: the South Carolina couple who adopted her at birth or her biological father, who invoked his rights as a Cherokee Indian to claim his child.
The justices spent part of the morning as family court judges, and they did not envy those who must decide such emotionally trying disputes every day. "Domestic relations pose the hardest problems for judges," said Justice Anthony M. Kennedy.
"If we could appoint King Solomon, who was the first domestic relations judge, as special master," the court would, he said. "But we can't."
The case of Adoptive Couple vs. Baby Girl was before the high court because it turned on the Indian Child Welfare Act of 1978, which was "designed to prevent the breakup of the Indian family." Although state courts usually decide child custody disputes, Congress said that "in any adoptive placement of an Indian child," a "preference shall be given" to a family member who is part of the child's tribe.
It began four years ago when Christina Maldonado, a single mother from Oklahoma with two young children, got engaged to Dusten Brown, a soldier facing deployment to Iraq who had distant Cherokee relatives. Soon after she announced her pregnancy, their relationship soured, and she broke off the engagement.
Maldonado decided to put her newest baby up for adoption, and she found a South Carolina couple who had been unable to have children of their own. Matt and Melanie Capobianco helped support the mother, and they were at her bedside when baby Veronica was born in September 2009.
When the baby was about 4 months old, Brown was notified of the impending adoption. He initially agreed but soon decided he had made a mistake and misunderstood what he was signing. Five days later, he sought custody of his biological daughter under the terms of the Indian Child Welfare Act.
The adoptive parents took Veronica back to South Carolina, but a family court there ruled in 2011 that Brown was her father and was entitled to custody. The South Carolina Supreme Court affirmed that ruling "with a heavy heart" in July 2012. Its opinion described the adoptive couple as "ideal parents" who could "provide a loving family environment for the baby girl." But the court said that the child's father, a Cherokee Indian, had not given up his parental rights, and that the federal law required that his daughter go with him.
In December 2011, the adoptive parents gave up Veronica, and she moved to Oklahoma with her father. Since then, she has been living with him and his new wife. The adoptive couple appealed the custody decision.
On Tuesday, two of Washington's top lawyers urged the Supreme Court to reopen the case and to rule that it was in the best interest of the girl to stay with her adoptive parents.
Attorney Lisa Blatt blamed the federal law and its "absurd" preference for a tribal member over a mother and an adopting couple. Unless the court acts, "you're basically banning the interracial adoption of abandoned Indian children," she said. As for the mother who approved the adoption, "you are rendering these women second-class citizens with inferior rights to direct … who raises their child."
Paul D. Clement, a former solicitor general, called the custody decision "crazy."
"The lower courts ordered this poor girl sent to somebody who … as a matter of practicality, was a stranger to her," he said.
But Justice Ruth Bader Ginsburg objected. "What about now?" she asked. The child was taken from her adoptive parents when she was about 2. Now, she has been with her father for about 16 months. "If a best-interest calculus is made now, you would have to take into account uprooting that relationship, would you not?"
"Absolutely," Clement replied. So, if the high court reopens the case, it would send the matter back to a South Carolina court to decide what is in the best interest of the child now.
An attorney for the father urged the court to uphold the custody decision. Brown was found to be a "fit, loving, devoted father who had created a safe, satisfactory and loving environment for the child," Charles Rothfeld told the justices. A Justice Department lawyer agreed and said Congress meant to preserve Indian families where possible.
The justices sounded sharply split, and not along the usual lines.
Justices Sonia Sotomayor and Antonin Scalia took the side of the father. They said the father had come forward to adopt his daughter, and the law did not allow for cutting off his parental rights in favor of the adoptive couple.
The issue is not "the best interest" of the child, Scalia said. "I know a lot of kids who would be better off with different parents."
Chief Justice John G. Roberts Jr. and Justice Stephen G. Breyer said they were troubled by the idea of giving a preference to parents based solely on their Indian ancestry, no matter how limited.
"Is it one drop of blood that triggers all these extraordinary rights?" Roberts asked. He described the father as "three 256ths" Cherokee by blood, characterizing that as "close to zero."
"It appears he had three Cherokee ancestors at the time of George Washington's father," Breyer added.
Roberts, who has two adopted children, also objected when Brown's lawyer said his client was "excited" by news of the pregnancy and looked forward to the child's birth.
"He paid nothing during the pregnancy and nothing at the time of the birth, right, to support the child or the mother?" Roberts said. "So he was excited by it. He just didn't take any responsibility."
The argument ended without a clear majority leaning in either direction. The justices have until late June to hand down a decision.