The biological father of a 2-year-old Cherokee girl, who was adopted by non-Native parents in 2009, has regained custody.
The 1978 Indian Child Welfare Act (ICWA), which protects American Indian families from being separated, trumped South Carolina law in a December 30 appellate court ruling. In accordance with South Carolina law, a father is stripped of his paternity rights when he has not provided pre-birth support or taken steps to be a father shortly after birth, the adoptive couple's spokeswoman, Jessica Munday, told Reuters.
On New Year's Eve, the biological father Dusten Brown took his daughter, Veronica, from her home in Charleston, South Carolina to his residence in Bartlesville, Oklahoma, a neighboring city of the Tahlequah-based Cherokee Nation.
"Their culture, nobody else can provide that for them. And they have a right to be able to experience that relationship with their tribe," explained David Simmons with the National Indian Child Welfare Association to WLTX.
But Matt and Melanie Capobianco, who adopted Veronica from birth mother Christina Maldonado plan to appeal to the South Carolina Supreme Court. The couple have started a petition to "consider the best interests of the child" on change.org, and supporters and the Christian Alliance for Indian Child Welfare created the blog SaveVeronica.org, which calls for the toddler to be returned to her adoptive parents. The blog features background information on the adoption case, links to media coverage and numerous photos of the happy toddler.
Conflicting media reports detail the adoption process. Munday told Reuters that the Capobiancos legally adopted Veronica at birth through an open adoption. "Matt cut the umbilical cord, and they were the first people to hold her," Munday told Reuters on Sunday.
But CNN reported that Veronica remained with her birth mother for the first few months of her life. In 2009, Veronica's biological mother and father signed a waiver agreeing to put the infant up for adoption. According to Brown's attorney, Shannon Jones, Brown signed the legal document, but did not fully understand it. Shortly after her birth, Brown, a U.S. Army solider not married to the birth mother, deployed for one year, and the baby was sent to the home of Matt and Melanie Capobianco. Four months after Veronica's birth, Brown took legal action, seeking custody of his daughter.
"My client has been fighting for custody of his daughter since shortly after her birth," Shannon Jones told CNN by e-mail. "He loves this child with all his heart."
Former U.S. senator Jim Abourezk from South Dakota, who authored the ICWA, told The Post and Courier that the law is intended to serve as a safety measure to keep Native children with their families or Native communities whenever possible. After Abourezk reviewed Veronica's story, he called the law's interpretation in this case "something totally different than what we intended at the time."
"That's a tragedy," he told The Post and Courier. "They obviously were attached to the child and, I would assume, the child was attached to them."
The Cherokee Nation and Brown have filed a motion for a gag order to prevent the Capobiancos from talking about the case. "In an effort to quell the undue outside attention to this sensitive affair, the Cherokee Nation attorney general's office filed a motion for a gag order in the Maldonado case Wednesday afternoon, along with a motion to release the judge's final order to the public," Chrissi Ross Nimmo, the tribe's assistant attorney general, told News on 6. "I ask that all parties involved in the matter respect the confidential nature of these juvenile court proceedings."
Prior to the gag order request, Matt Capobianco told WCIV-TV: "It's awful. Everybody keeps saying how bad they feel for us, but she's a 2-year-old girl who got shoved in a truck and driven to Oklahoma with strangers."