The Enid News and Eagle, Enid, OK

National and world

August 8, 2013

Biological father fails to show to relinquish custody of daughter

COLUMBIA, S.C. — Years into their attempt to adopt a Cherokee girl, Matt and Melanie Capobianco say they can empathize with any sadness the girl's biological father might be feeling after being ordered to turn her over to them.

In late 2011, the Charleston-area couple was in a lawyer's office, tearfully handing over Veronica — whom they'd raised since birth — to the father, Dusten Brown, who lives in Nowata in northeastern Oklahoma.

"It was the worst day of our lives, but we also knew then and we know now that it isn't about the adults. It's about her," Melanie Capobianco told The Associated Press on Wednesday. "We had to follow the rule of law. And if we were going to have a chance to get her back, we had to hand her over."

The Capobiancos relinquished custody of the girl after a South Carolina court ruled in 2011 that federal law governing the placement of American Indian children favored Brown, a member of the Cherokee Nation, as her custodian.

That ruling was upheld by the state Supreme Court, which based its ruling on the 1978 Indian Child Welfare Act, a law seeking to keep Indian children from being taken from their homes and placed with non-Indian adoptive or foster parents.

The Capobiancos appealed to the U.S. Supreme Court, which ruled that the state of South Carolina should determine the girl's placement. The state's highest court subsequently reversed its prior ruling, ordering South Carolina Family Court Judge Daniel Martin to finalize the couple's adoption of the girl, which he did last week.

As part of that proceeding, Martin also approved a transition plan that laid out a gradual process for reintroducing the girl to the Capobiancos. According to the court, Brown failed to show up, with the girl, for the first of those scheduled gatherings on Aug. 4 — a date the couple says was set by the judge and to which Brown's attorneys did not object.

"It was just really disappointing, every minute that ticked by and they didn't show up," Melanie Capobianco said.

Brown's failure to appear prompted an order from Martin on Monday that Veronica, now 3, be immediately turned over to the couple.

The case file is sealed, but the judge's order was obtained by WCBD-TV of Charleston and posted on its website. In it, Martin wrote that he was asking state and federal prosecutors to immediately locate and transfer the girl.

Veronica has been living with Brown's wife and parents in Nowata in northeastern Oklahoma while he serves a monthlong stint with the Oklahoma National Guard. A Guard spokesman said Tuesday that Brown is slated to return Aug. 21.

Due to his National Guard obligation, it is "physically and legally impossible for Dusten to comply with the current order" to show up with Veronica, Cherokee Nation Assistant Attorney General Chrissi Nimmo said in a statement emailed to reporters.

Last week, the U.S. Supreme Court denied Brown's request to stop the South Carolina adoption proceedings. He is now pursuing custody of his daughter through the Oklahoma court system.

The girl's biological mother, Chrissy Maldonado, who is not Indian and favors the adoption, has filed a lawsuit against the federal government claiming the Indian Child Welfare Act is unconstitutional, and has asked U.S. Attorney General Eric Holder to declare some parts of it illegal.

Maldonado has claimed that the law uses race to determine with whom a child should live, and therefore is a violation of equal-protection laws.

Several American Indian groups are also pursuing a federal civil rights case, saying a hearing should be held to determine if it is in Veronica's best interest to be transferred to South Carolina.

In a statement issued last week through his attorney, Brown asked the couple to "ask yourself if you really believe this is best for her."

Since they said goodbye to Veronica more than a year and a half ago, the Capobiancos say they have had no contact with her, writing to her multiple times but only learning about the girl's location through news media reports.

They have pledged to keep Veronica in touch with Brown and other Oklahoma relatives after the child has returned to South Carolina. But they said they have never given up hope she would return to live with them.

"We're her legal parents," Melanie Capobianco said. "Would any parent say, 'OK, someone took my child away for 19 months because of a mistake of law,' and then say, 'Oh, it's OK?' I truly believe she will come out of this unscathed if we all work together."

 

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