By Harriet McLeod
CHARLESTON, South Carolina (Reuters) - The adoptive parents of a 2-1/2-year-old Cherokee girl at the center of a custody battle stemming from her Native American heritage will ask the South Carolina Supreme Court on Tuesday to return her to them.
Authorities took Veronica Capobianco from Matt and Melanie Capobianco of Charleston, South Carolina, on New Year's Eve and turned the toddler over to her biological father, Dusten Brown, a member of the Cherokee Nation. Brown had sued for custody under the federal Indian Child Welfare Act that protects Native American families from being separated.
The court proceedings Tuesday afternoon will be closed and records are sealed because it is an adoption case. A ruling is expected in mid-May, and parties and attorneys have been ordered by the court not to comment.
The Capobiancos legally adopted Veronica at birth in 2009 through an open adoption in Oklahoma, said family spokeswoman Jessica Munday.
According to "Save Veronica," a website set up by the couple's supporters, Veronica's birth mother, Christina Maldonado, who is not Native American, offered the child for adoption because she could not care for the baby and had no support from Brown.
Maldonado lives in Oklahoma, Munday said. The biological parents were not married, and Brown was in the Army in Oklahoma when Veronica was born in September 2009, Munday said.
Brown contested the adoption and began petitioning for custody of Veronica under the federal law when she was four months old.
"He loves this child with all his heart," Brown's attorney, Shannon Jones, said in January.
A family court judge in Charleston found last fall that the federal law trumped South Carolina's adoption law, which ends a father's paternity rights when he has not provided pre-birth support or taken steps to be a father before and shortly after birth.
The Capobiancos have spoken to Veronica by telephone only once since Brown, whom she had just met, drove away with her in December, Munday said.
Friends and supporters of the couple have gathered almost 22,000 signatures on a petition to Congress asking for changes to the Indian Child Welfare Act.
"We're not saying the whole law has to go away," Munday said on Monday. "There was obviously an intent for it. You hear about tribes with only 1,000 members. They don't want to lose their culture."
The 1978 law gives tribes a right to intervene in adoption and child welfare cases and provides extra protections against the parent of an American Indian child having parental rights removed, said Chrissi Nimmo, assistant attorney general of the Cherokee Nation.
Under the law, a child should be placed with a member of the child's extended family, whether they are Indian or not; a member of the child's tribe; or a member of another Indian tribe.
The law was passed "as a result of studies that found that Indian children were being removed from their families at a disproportionately higher rate than other children," Nimmo said in an email. "And 99 percent of Indian children in adoptive placements were in non-Indian homes."
The Cherokee Nation, which has about 317,000 current enrolled members, is involved in about 1,100 various types of child custody proceedings nationwide, Nimmo said.
Nimmo said only one Indian Child Welfare Act case has reached the U.S. Supreme Court, which ruled in 1989's Mississippi Band of Choctaw Indians vs. Holyfield that "the tribal court had exclusive jurisdiction over a private adoption even though the mother left the reservation to give birth to twins."
South Carolina law allows a reasonable amount of time before and after birth for a father to establish paternity rights, said Stephanie Brinkley, a Charleston adoption lawyer who has researched the laws that apply to Veronica Capobianco's case.
After that, a father's rights can be terminated if he hasn't provided support in some form, she said.
"You've got to have more than biology," Brinkley said. "It's biology plus action. It's not always about money. Did he provide diapers? Did he set up a nursery in his own home? The court will look at whether Brown had a constitutional right to establish parentage."
(Editing By Colleen Jenkins and Eric Beech)