The Enid News and Eagle, Enid, OK

September 23, 2013

State court lifts stay in adoption case

Associated Press
Associated Press

OKLAHOMA CITY — The Oklahoma Supreme Court said Monday that it won’t intervene in an adoption dispute involving a Cherokee girl and dissolved a court order keeping her with her father.

However, the dispute appears far from over, and the tribe issued a statement indicating 4-year-old Veronica would likely remain in the Cherokee Nation. She has been living there with her father, Dusten Brown, and his family since she was 2 years old.

Before that, Veronica lived with a South Carolina couple who had taken custody of her shortly after her birth. Her adoption to that couple, Matt and Melanie Capobianco of South Carolina, was finalized earlier this year, and Brown had appealed Oklahoma court orders certifying the adoption.

The Oklahoma Supreme Court had halted the girl’s transfer to the Capobiancos while it considered the case. The court did not explain its decision to lift its stay Monday.

A spokeswoman for the Capobiancos, Jessica Munday, said the couple’s “legal nightmare” has come to an end and they can’t wait to take Veronica back to South Carolina.

“Their hope now is that the Brown family and Cherokee Nation will return Veronica peacefully and voluntarily, rather than following through with their previous threats to continue to ignore court orders and place Veronica in a dangerous and traumatic situation,” Munday said in the statement.

But Cherokee Nation Attorney General Todd Hembree released a statement Monday evening saying the tribe is sovereign and has its own court system with a conflicting court order. A tribal court temporarily granted custody of the girl to family members of Brown while he was undergoing National Guard training earlier this summer.

Hembree said he will require that tribal court’s system must be “honored and respected.”

“I took an oath when assuming this office to uphold the laws and constitution of the Cherokee Nation and the United States,” he said. “Nowhere in that oath is it required that I defend the laws of South Carolina.”

The dispute has raised questions about jurisdictions, tribal sovereignty and a federal law meant to help keep Native American tribes together.

Veronica’s birth mother, who is not Native American, was pregnant when she put the girl up for adoption; baby Veronica began living with the Capobiancos shortly after her birth. Her father claims federal law favors his keeping the child and won custody when she was 2. But the U.S. Supreme Court then ruled that the Indian Child Welfare Act does not apply to the case.

A South Carolina court then finalized the adoption to the Capobiancos and ordered Brown to hand Veronica over. Brown appealed to the Oklahoma Supreme Court because two Oklahoma courts have certified the South Carolina order.

Brown also is facing extradition to South Carolina to face a charge of custodial interference for refusing to hand over the girl.  

Brown and the Capobiancos had been negotiating for the past week but have not reached a settlement. A lawyer for Brown did not immediately return a message seeking comment.

In a dissenting opinion to Monday’s Oklahoma Supreme Court order, Justice Noma Gurich said the interests of Veronica must be the most important consideration in the case.

“(Veronica) deserves her day in court,” Gurich wrote. “We cannot ignore the fact that (Veronica), at the age of 27 months, has already been moved from one set of ‘parents’ to another, after lengthy judicial consideration of her best interests. Under the issues present to this court, an immediate change of custody without any consideration of her best interests will require a four-year-old child to resolve her feelings of loss and grief for a second time.”

Brown and his family claim the Indian Child Welfare Act mandates that the child be raised within the Cherokee Nation. The law was passed in 1978 with the intent of reducing the high rates of Native American children being adopted by non-Native American families.

A South Carolina court cited the law when awarding Veronica to Brown in 2011, but the U.S. Supreme Court this year said the law did not apply because he had been absent from the child’s life.