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January 9, 2012

Biological Father Regains Custody of Two-Year-Old Cherokee Daughter in Adoption Battle

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.”

The case has made national headlines and caused a media uproar. South Carolina newspaper The Post and Courier called Brown a “stranger” to his child Veronica and also referred to the toddler as the “daughter” of the non-Indian couple, reported Indianz.com. Many news sites tell the story of the heartbroken adoptive parents, who spoke to media outlets before the Cherokee Nation and Brown filed a motion for a gag order to prevent the Capobiancos from talking about the case. Munday said the couple is cooperating.

“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.”

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August 7, 2012

South Carolina Supreme Court Rules to Keep Baby Veronica With Biological Father

Baby Veronica, a 2-year-old Cherokee girl adopted by non-Native parents in 2009, will remain with her biological father following a South Carolina Supreme Court ruling filed July 26 that upholds the 1978 Indian Child Welfare Act.

The decision means Veronica has a permanent home on the Cherokee Nation, where her family has “a deeply embedded relationship” with its heritage, the Supreme Court ruling states. It also means a victory for the Indian Child Welfare Act and for the Cherokee Nation.

“We’re very pleased with the results,” Cherokee Nation Attorney General Todd Hembree said in a statement posted on the tribe’s website. “This is a victory not only for the Cherokee baby and her father, but for all of Indian Country. The Cherokee Nation has done a great job to ensure the Indian Child Welfare Act is enforced to preserve Indian families.”

The act, which protects American Indian families from being separated, trumped South Carolina law in a Dec. 28, 2011, appellate court ruling. Biological father Dusten Brown on New Year’s Eve took his daughter home to Bartlesville, Okla., a city bordering the Tahlequah-based Cherokee Nation.

Adoptive parents Matt and Melanie Capobianco, who live in South Carolina, appealed to the state high court, arguing that state law strips a biological father’s paternity rights if he does not provide pre-birth support or take steps to be a father shortly after birth. The Capobianco couple adopted Veronica from her birth mother, Christina Maldonado.

Brown, a registered member of the Cherokee Nation and a U.S. Army soldier not married to Maldonado, agreed to surrender his parental rights and admitted that his behavior was not conducive to being a father, the July 26 ruling states. Four months after Veronica’s birth, however, Brown took legal action, seeking custody of his daughter and claiming he did not consent to his daughter’s adoption.

After the appellate court ruled in Brown’s favor in December, the Capobianco couple started a petition on change.org to “consider the best interests of the child.” The Christian Alliance for Indian Child Welfare also joined the battle to keep Veronica with her adoptive parents. The Capobiancos took the matter to the South Carolina Supreme Court in a case that pitted the couple against the toddler, her birth father and the Cherokee Nation.

Seven months after the first decision, however, the high court upheld the December ruling and decided in favor of the Indian Child Welfare Act, though at the same time stated that the adoptive family did nothing wrong.

“We affirm the decision of the family court denying the adoption and awarding custody to the biological father,” the ruling states. Three of the high court’s five justices affirmed the ruling while two dissented.

“We do not take lightly the grave interests at stake in this case,” the ruling states. “However, we are constrained by the law and convinced by the facts that the transfer of custody to father was required under the law. Adoptive couple are ideal parents who have exhibited the ability to provide a loving family environment for baby girl. Thus, it is with a heavy heart that we affirm the family court order.”

Because the case involved the Indian Child Welfare Act, custodial preference had to be given to the biological father, the ruling states.

“We simply see this case as one in which the dictates of federal Indian law supersede state law where the adoption and custody of an Indian child is at issue,” the ruling states.

The decision means much more than upholding a federal law, however, said Terry Cross, executive director of the National Indian Child Welfare Association. The ruling ensures Baby Veronica grows up surrounded by her culture and people and the rights and responsibilities that come with it.

“I can’t say enough about the importance of a child’s rights throughout their lives,” Cross said. “These are things as simple as voting in tribal elections, running for office, taking advantage of tribal scholarships and benefits, participating in customary and ceremony rights, plus their relationships with extended families. It’s about a notion of a sense of belonging. Indian children are as tied to their extended families as they are to their parents. There’s a rich network of culture there, and that’s what we rely on for wellbeing.”

Cross expressed sympathy for the adoptive parents, but said the South Carolina court acted in accordance with the federal law.

“The decision was entirely consistent with the act,” he said. “There’s no question about the validity of the act. The words I would say are that any suffering of the child or of the adoptive family was about the violation of the law and not the law itself.”

“Our hearts go out to the family,” Cross added. “No family should have to go through something like that.”

The Indian Child Welfare Act, designed to stop the large numbers of involuntary adoption of American Indian children by non-Native families during the 1970s, outlines three acceptable alternatives. The most preferred solution is to place an adoptive American Indian child with members of his or her extended family. The child also can be placed with members of the same tribe or with other American Indian families.

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October 18, 2012

Dr. Phil Show To Feature Perspective of Adoptive Parents in ‘Battle Over Baby Veronica’

Today, the DR. PHIL Show will tell the story of  Matt and Melanie Capobianco, the non-native adoptive parents of 3-year-old Veronica (Cherokee), who was removed from her home in South Carolina at the age of 2 this past New Year’s Eve to live with her biological father, Dusten Brown, in Bartlesville, Oklahoma, a neighboring city of the Tahlequah-based Cherokee Nation.

The widely publicized and controversial custody case, which has been going on since 2009 when Veronica was four months old, has been heralded by some as a victory for the Indian Child Welfare Act (ICWA), the Cherokee Nation, and for Veronica, who will remain with her family who have “a deeply embedded relationship” with their heritage, as the South Carolina Supreme Court ruling states.

But others have criticized the decision as destructive to the toddler and an injustice to the adoptive parents.

In a taped interview, the Capobiancos sat down with TV talk-show host Dr. Phil McGraw to share their anger and frustrations at losing Veronica and at the ICWA of 1978, which gives placement preference of adopted American Indian children first to family members, second to members of the same tribe and third to members of another tribe.

“The Child Welfare Act is destroying families,” Matt told Dr. Phil. “Veronica’s our daughter.” The couple was present in the delivery room for Veronica’s birth, and Matt cut the umbilical cord. “I just can’t put it into words how incredible it felt to have a little girl.”

Veronica’s birth mother, Christina Maldonado, signed the adoption papers for the Capobiancos to take Veronica without Brown’s consent. When Brown learned of the adoption, he immediately began pursuing custody of his daughter.

In a preview clip posted to the DR. PHIL Show website, Dr. Phil questioned Chrissi Nimmo, assistant attorney general for the Cherokee Nation, why the ICWA has the power to overrule a mother’s decision. “Does this mother need the permission of the tribe to do what she wants with the child if it’s not to the child’s detriment?”

Nimmo explained “…one of the concepts of the law is that the tribe has an interest in protecting its children.”

The ICWA was designed to preserve the relationship a child has with its relatives and its tribe, Craig Dorsay, a Portland, Oregon-based attorney who has worked on thousands of ICWA-related cases, explained to Indian Country Today Media Network. “In the South Carolina case, the tribe is painted as the villain,” Dorsay said. “But you have to remember the tribe is interested in the health and welfare of the child.”

Although non-native adoptive families can promise to expose children to ceremonies and culture, there is no substitute for immersion. “In the Indian community, grandparents, aunts and uncles, they all share equal responsibility for the child, and the child’s life is enriched by this,” Dorsay said.

Terry Cross, executive director of the National Indian Child Welfare Association, agrees that the ruling ensures Baby Veronica grows up surrounded by her culture and people and the rights and responsibilities that come with it. “I can’t say enough about the importance of a child’s rights throughout their lives,” Cross said. “These are things as simple as voting in tribal elections, running for office, taking advantage of tribal scholarships and benefits, participating in customary and ceremony rights, plus their relationships with extended families. It’s about a notion of a sense of belonging. Indian children are as tied to their extended families as they are to their parents. There’s a rich network of culture there, and that’s what we rely on for wellbeing.”

But tonight’s episode of the DR. PHIL Show paints the decision to remove Baby Veronica from the home of her adoptive parents as a heart-breaking “nightmare,” severing a young girl’s ties with the only caretakers she has ever known.

While Nimmo defends the purpose of the ICWA, she is repeatedly countered by Troy Dunn, host of the TV show The Locator, a non-native brother to an adopted American Indian man, and the person who pitched Dr. Phil to feature the story of Baby Veronica on the DR. PHIL Show.

While Nimmo is explaining the purpose of the ICWA, Dunn interrupts and alleges Veronica’s background is barely Indian.

“Have you told Dr. Phil how much of this child’s blood is actually Indian? Because I think we’re leading people to believe this is an Indian thing,” Dunn said.

“She is an Indian baby,” Nimmo replied.

“This child is more Hispanic than Indian, more white than Indian, more Asian almost than Indian,” Dunn charges. “There is like a drop of Indian blood in this child….” he said. “…[I]t’s a massive warning to any parent in America right now who’s considering adopting a child, because if there’s a drop of Indian blood in this child, this is a possibility, this event could happen to somebody else,” Dunn said. “Somebody from the tribe—not a birth parent—a tribal member can step up a make a claim, which is what drives some families into hiding.”

Nimmo clarified that the law applies to tribal citizens, not to native heritage. “It’s not about a drop of blood; this father is a citizen of the government. It’s not just if you have Indian in your background.”

The debate over the ICWA continued on the DR. PHIL Show with outside opinions in support and opposition to the act.

Lastly, Dr. Phil issues his opinion:

“To tear this child aware from y’all in an abrupt fashion like that, there’s no question that it was traumatic for her,” he told the Capobiancos. “There will be real issues for this child going forward. I will tell you, however, that research suggests long term that children can recover from this; children are resilient. She can have a happy and adjusted life in a new environment if in fact that environment is loving, nurturing and productive for her.”

Dr. Phil did suggest the couple should have permission to see Veronica. “The mature thing to do would be for her to have visitation; it puts the baby’s best interest above everyone else’s,” Dr. Phil said.

The Capobiancos, whose request for a rehearing in the custody case of Baby Veronica in South Carolina Supreme Court was denied on August 23, appealed on October 1 for the U.S. Supreme Court to hear the case. They are still awaiting a response.

For local DR. PHIL Show channel and show times, visit drphil.com/shows/listing/.

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