The Supreme Court on Tuesday sided with the adoptive parents in a high-profile custody battle involving a Cherokee birth father who invoked a federal law to assert his parental rights over his daughter.
The court ruled in the case on the next-to-last day of its term, apparently saving until Wednesday two potential landmark decisions on same-sex marriage. On Tuesday the court also issued a significant property rights decision that favored a Florida developer.
Justice Samuel Alito Jt. wrote the majority opinions in both the Indian adoption case and the Florida property rights dispute—both of which were overshadowed by the court's controversial decision in Shelby County v. Holder to strike a key provision of the Voting Rights Act.
In Adoptive Couple v. Baby Girl, the majority ruled that in spite of the federal Indian Child Welfare Act's preference for keeping Indian children within tribal families, the law "doesn't apply in cases where the Indian parent never had custody of the Indian child."
In the case before the justices, the father relinquished his parental rights to "Baby Veronica" before she was born in 2009 and after he had broken up with the mother. The mother put the child up for adoption, and she was adopted by a South Carolina couple who were present at her birth.
Four months after she was born and being cared for by the adoptive couple, the father decided to seek custody. Though the court papers do not use the names of the parties, wide media coverage of the case by Dr. Phil, Anderson Cooper and others has identified the birth father as Dusten Brown, and the adoptive couple as Matt and Melanie Capobianco.
Brown cited the Indian child welfare law, passed in 1978 by Congress to help preserve Native American families. Provisions of the law make it more difficult for non-Indians to adopt Indian children. Ultimately the South Carolina Supreme Court ruled in favor of the birth father because of the statute, and with cameras rolling, the birth father took the child from the adoptive parents in December 2011.
The adoptive couple decided to appeal to the Supreme Court, attracting veteran Supreme Court advocates to the case even before the justices granted review.
Lisa Blatt of Arnold & Porter represented the adoptive couple, Paul Clement of Bancroft spoke for the guardian ad litem representing the child, Lori Alvino McGill and Gregory Garre of Latham & Watkins represented the birth mother, and Charles Rothfeld of Mayer Brown represented the birth father.
In the ruling, Alito focused on the wording of the federal law and said its provisions on the termination of parental rights did not apply to the case before the court, because Brown never had legal or physical custody of the child and there was no relationship between the two that needed to be protected under the law.
"None of these provisions created parental rights for unwed fathers where no such rights would otherwise exist," Alito wrote. Alito was joined by Chief Justice John Roberts Jr. and Justices Anthony Kennedy, Clarence Thomas and Stephen Breyer. Thomas and Breyer filed concurring opinions differing with Alito's rationale.
Justices Antonin Scalia and Sonia Sotomayor wrote dissents. Scalia said the majority "needlessly demeans the rights of parenthood." Sotomayor, who was joined by Justices Ruth Bader Ginsburg, Elena Kagan and Scalia in part, said the court's ruling is "manifestly contrary" to the purpose of the federal law, namely to preserve Indian families.
The case returns to South Carolina courts, which will have to deal with the new reality that Veronica has now spent half her life with her father, and half with the adoptive couple.
In a statement Jefferson Keel, president of the National Congress of American Indians, said Tuesday, "The courts in South Carolina have previously affirmed that Dusten Brown is Veronica's father and that he is a fit parent. We are confident that his parental rights will be upheld, and that Veronica will stay with her family."
In the property rights case, Koontz v. St. Johns River Water Management District, the court majority gave a boost to property rights advocates in their efforts to keep regulatory agencies from attaching onerous conditions on the issuance of land use permits. In two prior cases, Nollan v. California Coastal Commission and Dolan v. City of Tigard, the high court invoked the Fifth Amendment's Takings Clause to restrict the ability of government agencies to condition the approval of a development plan on the owner giving up part of his or her property.
The case decided Tuesday involved a somewhat different scenario. Nearly 20 years ago Coy Koontz submitted a plan to develop a 3.7 acre portion of a vacant lot he owned in Orange County, Florida. Because the land is in an area classified as wetlands, he had to obtain permits from the water district. He offered to have most of the property covered by a conservation easement that would preclude development. But the water district rejected the proposal and said he could develop the land only if he agreed to other concessions, including one option whereby Koontz would pay for wetlands improvements at other properties in the area.
Koontz sued and the Florida Supreme Court ruled that the Nollan and Dolan precedents did not apply because the water district had rejected the permit application before making the demands. Alito's ruling said that did not make any difference and what the district had done amounted to an unconstitutional condition. Alito said he was "mindful of the special vulnerability of land use permit applicants to extortionate demands for money." Justices Kagan, Ginsburg, Breyer and Sotomayor dissented.
Paul Beard II of the Pacific Legal Foundation, who argued on behalf of Koontz before the court, applauded the decision. “Regulators can’t hold permit applicants hostage with unjustified demands for land or other concessions," he said.
Doug Kendall of the Constitutional Accountability Center, who filed a brief on the side of the water district for the American Planning Association, criticized the court majority.
“Today’s ruling is judicial activism at its worst," Kendall said. "It will harm both property owners and state and local officials by injecting judges into the land-use planning process.”
Tony Mauro can be contacted at email@example.com.