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S.C. court upholds return of girl to dad

South Carolina court agrees with return of American Indian tot to Oklahoma father
BY MEG KINNARD Modified: July 26, 2012 at 8:22 pm •  Published: July 27, 2012

— The South Carolina Supreme Court on Thursday upheld the return of a Native American girl to her father in Oklahoma.

The girl had been adopted by a family in South Carolina.

The ruling weighed state adoption law against the federal Indian Child Welfare Act.

In a 3-2 decision, the justices said the act confers custodial preference to the child's father, a member of the Cherokee tribe.

“Adoptive Couple are ideal parents who have exhibited the ability to provide a loving family environment for Baby Girl,” said the opinion written by Chief Justice Jean Toal.

Toal said it is with “a heavy heart that we confirm the family court order” but that preference must be given to the Native American parent under federal law. Because it is an adoption case, the order did not mention specific names for privacy reasons.

The court used as its guide the Indian Child Welfare Act, passed in 1978 because of the high number of Indian children that at the time were being removed from their homes by public and private agencies. The act gives the child's tribe and family the right to have a say in decisions affecting the child.

In this case, now-2-year-old Veronica was adopted by Matt and Melanie Capobianco, who live on James Island just outside Charleston. They attended the girl's birth and cared for her thereafter.

The girl's father, Dusten Brown, a member of the Cherokee Nation, later went to court seeking custody. A South Carolina court awarded Brown custody of the child, and he arrived in Charleston on New Year's Eve with his parents to take the girl back to Oklahoma.

The adoptive parents appealed, and the state Supreme Court heard the case in a closed hearing in April. In the girl's time with the Capobiancos, the court wrote, the family likely formed a significant bond. But that isn't enough to keep her from her biological father, given constraints of federal law.

“While we are conscious that any separation will cause some degree of pain, we can only conclude from the evidence presented at trial that Father desires to be a parent to Baby Girl, and that he and his family have created a safe, loving and appropriate home for her,” the court wrote.

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