SC Supreme Court to hear American Indian child custody case


By Eric

CHARLESTON, SC (WCIV) -- Their 2-year-old adopted daughter was taken from them and given back to her birth father in Oklahoma. But a James Island couple is not giving up. Tuesday, they will appeal that decision to the state's highest court.

The South Carolina Supreme Court will hear arguments over the Indian Child Welfare Act. This law is the basis for why the toddler was taken from the home where she spent the first two years of her life. The hearing will be closed to the public, just the families and their attorneys will be inside.

Months of benefits, vigils and petitions will culminate in what could be a hearing lasting only half an hour.

"Oral arguments only, there are no witnesses. The attorneys' arguments are going to be based on the briefs they've submitted, so they'll probably each have 15 minutes that's it," said family formation attorney Stephanie Brinkley.

Veronica, who was raised for two years by Matt and Melanie Capobianco on James Island, has been in Oklahoma with her biological father since early January. The couple was finalizing the adoption, but because of the Indian Child Welfare Act she was taken from their home. The law says American Indian children, Veronica is part Cherokee, must live with fellow Native Americans.

Brinkley, an attorney familiar with these adoption cases, says the Capobiancos will rest their hopes on another law, the Existing Indian Family Doctrine.

"They say that when an American Indian child is not removed from an existing American Indian family, like Veronica, she was adopted, the process started at birth. Then, this federal law does not apply," Brinkley said.

Because Veronica was with her adoptive parents since birth, the appellate court could rule the Indian Child Welfare Act cannot be used. Brinkley says other Southeastern states have made similar rulings. Though it's likely no decision will come down soon.

"Especially in a situation like this that's good," Brinkley said. "You want the judges to take their time and really think about it. This is a little girl. This is a family, so there's a lot more emotion involved."

The court will likely review the case for a few months and could make its decision by early June. Veronica's birth mother initially agreed to put her up for adoption. At that time, the girl's father reportedly waived his parental rights.

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