MuskogeePhoenix.com, Muskogee, OK

Oklahoma News

July 18, 2013

S.C. court rules for adoptive parents of Indian girl

Cherokee father had fought for custody in federal court

— COLUMBIA, S.C. (AP) — An American Indian child at the center of a custody suit that went to the U.S. Supreme Court should be returned to the Charleston-area couple seeking to adopt her, South Carolina’s highest court ruled on Wednesday.

In a 3-2 decision, the state Supreme Court ruled that Matt and Melanie Capobianco are the only party properly seeking to adopt the 3-year-old girl named Veronica in South Carolina and ordered a Family Court to finish the adoption.

“We are thrilled that after 18 long months, our daughter finally will be coming home,” the couple said in a statement Wednesday. “We look forward to seeing Veronica’s smiling face in the coming days and will do everything in our power to make her homecoming as smooth as possible.  We also want to thank everyone who has supported us throughout this ordeal.  Our prayers have been answered.”

South Carolina courts originally said the 1978 Indian Child Welfare Act — a federal law intended to keep Indian children from being taken from their homes and typically placed with non-Indian adoptive or foster parents — favored her living with her biological father, Dusten Brown.

A member of the Cherokee Nation, Brown had never met his daughter and, after the girl’s non-Indian mother rebuffed his marriage proposal, played no role during the pregnancy and paid no child support after the girl was born. But when Brown found out Veronica was going to be adopted, he objected and said the law favored the girl living with him and growing up learning tribal traditions.

Brown took custody in 2011 and has been living with his daughter in Oklahoma since then.

But the Capobiancos — who were present at the girl’s birth and raised Veronica for the first 27 months of her life — appealed that decision to the U.S. Supreme Court. Last month, the nation’s high court ruled that South Carolina courts should decide who gets to adopt the girl, a determination the state court made Wednesday.

“We think the Supreme Court plainly contemplated an expeditious resolution of this case, and we believe the facts of this case require it,” the South Carolina high court wrote, ordering a Family Court to complete the adoption and to terminate Brown’s parental rights. “There is absolutely no need to compound any suffering that Baby Girl may experience through continued litigation.”

Brown had filed a petition this month to adopt the child in Oklahoma.

“As you can imagine, we are shocked and saddened at this development,” John S. Nichols, a South Carolina-based attorney for Brown, wrote in an email. “There is no mention, or apparent consideration, in the majority decision of the child’s best interest, as the dissenters point out.”

The Cherokee Nation said in a statement: “We are outraged and saddened that the South Carolina Supreme Court would order the transfer of this child without a hearing to determine what is in her best interests, particularly in light of the fact that this very same court previously found ‘we cannot say that Baby Girl's best interests are not served by the grant of custody to Father, as Appellants have not presented evidence that Baby Girl would not be safe, loved, and cared for if raised by Father and his family.’

“Dusten Brown is a fit, loving parent and Veronica is, as the court previously defined, ‘safe, loved, and cared for.’ That should be enough.”

Separately, Justices Costa Pleicones and Don Beatty wrote that the transfer of the girl should be handled delicately so as to be least disruptive to her.

“The majority orders the immediate transfer of the child, no longer an infant or toddler, upon the filing of the family court’s adoption order, without regard to whether such an abrupt transfer would be in the child’s best interest,” the two justices wrote. “This is a situation where the decisions that are in the best interests of this child, given all that has happened in her short life, must be sorted out in the lower court(s).”

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