Legal battle over Native American girl comes to a poignant end

Was justice served Monday when a little girl called Veronica was taken from her biological father, a Cherokee, and returned to the white South Carolina couple who had begun to adopt her at birth four years ago?

This is one of those heartbreaking stories that periodically makes headlines, sending a shiver down the spines of adoptive parents and enraging Native Americans whose children had been ripped away from them so often that a federal law was passed in 1978 to put safeguards in place.

The facts of this case seem so unfair to the biological father that it’s hard to understand why the adoptive parents have ended up with custody.

You’ve probably heard about it: In 2009, Dusten Brown, an enrolled member of the Cherokee Nation, was a soldier in the Army, stationed in his home state of Oklahoma, when his fiancee, Christy Maldonado, became pregnant. He said he would support her if she married him.

Instead, she broke up with him, and in a text message told him he could either give up his parental rights or pay child support. He texted her back that he would give up his parental rights. (This, by the way, is a false choice. States rarely link parental rights to the payment of child support.)

Unbeknown to Brown, Maldonado began making preparations to give up her baby for adoption. Months before Veronica was born, Maldonado’s adoption attorney found an older, childless couple in Charleston, S.C., who wanted to adopt.

The couple, Matt and Melanie Capobianco, were present for the baby’s birth — Matt cut the umbilical cord.

Four months later, days before deploying to Iraq, Brown signed a document relinquishing his parental rights to Maldonado. Or so he thought. When he realized he was agreeing to an adoption, he immediately tried to void it and contacted military legal authorities for help.

What has followed was a four-year legal odyssey, which began in South Carolina courts, went to the U.S. Supreme Court and ended up in Oklahoma courts. Brown’s main legal claim: His tribe was never notified of the proposed adoption, as required by the federal Indian Child Welfare Act, therefore the adoption could not proceed.

Veronica lived with the Capobiancos from infancy to 27 months and moved to Oklahoma to live with her father after a South Carolina court ruled in his favor.

Brown won everywhere but where it counted: the Supreme Court, which essentially finalized the adoption in June when it ruled that the Indian Child Welfare Act did not apply because Brown didn’t have legal or physical custody of the little girl when the adoption proceedings began.

The court remanded the case to South Carolina, where judges ruled Brown was not Veronica’s father under South Carolina’s antiquated law: He was not married to the biological mother and had not supported her during her pregnancy.

On Monday, Veronica left her Oklahoma family to return to her South Carolina family. The Capobiancos, who issued a statement saying they were grateful their “long, legal nightmare has finally come to an end,” have always maintained they would allow Brown to be in his daughter’s life; some reports say they have agreed he can visit her 10 hours a month in South Carolina.

But the Capobiancos will be her legal parents.

For the Native American perspective on the case, I turned to Indian Country Today, which has been a vociferous proponent of Brown, a critic of the biological mother and relentlessly negative about the Capobiancos, who certainly don’t deserve so much scorn.

(The publication also floated the claim that Chief Justice John G. Roberts should have recused himself from the case because he is the father of two adopted children and quoted an anonymous Washington lawyer calling Roberts “the de facto head of the U.S. adoption industry.”)

The publication’s heavy-handed account of Veronica’s return to the Capobiancos sounded more like an obituary than a news story:

“In Oklahoma, she was surrounded by her large extended family, which included her grandparents, her father and stepmother, her sister Kelsey from Brown’s first marriage and a chatty phalanx of half a dozen cousins, with whom she had grown close. She had made friends at pre-school and loved her pets. She was a spark of lightning with a sharp mind and quick to giggle, a girl who loved pink shoes.

“In South Carolina, Veronica will be the only child on both sides of her adoptive parents’ families. The Capobiancos, both of whom are in their mid-40s, have no other extended family nearby, save for a stepmother who was divorced from Melanie’s father before he passed away.

“Time will tell what the ultimate outcome will be for Veronica, who will undoubtedly be given the best of what the Capobiancos can afford in terms of education and the trappings of an older, upper middle income childless couple.

“Nonetheless, in her short time on Earth, she brought attention to the corrupt and broken system of illegal adoptions that are taking place every day throughout Indian Country.

“In spite of her removal from Oklahoma, Veronica Brown paved the way for other children to remain with their communities and families, bringing attention to the loopholes and cracks in the Indian Child Welfare Act that allow attorneys, social workers, guardian ad litems and judges to continue profiting from a very profitable industry adoption and foster care industry that traffics Native babies and children.”

Whether this case has changed anything remains to be seen. South Carolina has an especially robust private adoption industry, aided by laws that do not look out for a biological father’s best interests.

The Charleston Post and Courier has reported that another case that bears striking similarities to Veronica’s is wending its way through the courts in that state.

The paper also reported Tuesday that Dusten Brown is still wanted in Charleston County for failing to turn Veronica over to the Capobiancos after a South Carolina judge finalized the adoption in July. Brown, the paper said, is fighting extradition. A hearing is scheduled for Oct. 3.

[For the Record, 3:45 p.m. PDT, Sept. 24: An earlier version of this post stated that the South Carolina couple adopted the girl at birth, but they actually began the adoption process at the time of her birth.]

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