Friday, February 23, 2018

Emotional SC adoption case may weigh fed, state law

February 23, 2012 by  
Filed under Uncategorized

The Associated Press
Published: Monday, February 6, 2012 at 9:00 a.m.
Last Modified: Monday, February 6, 2012 at 9:56 a.m.

CHARLESTON — A South Carolina adoption case is pitting the couple who nurtured a 2-year-old girl against the child’s biological father, a Cherokee Nation tribal member who took her back to Oklahoma after winning custody of her.

 This October 2011 photo provided by Melanie Capobianco shows her adoptive daughter Veronica trick-or-treating in Charleston. The child has been the focus of a custody battle between her adoptive parents and her birth father.
The South Carolina Supreme Court has agreed to hear the case, and the justices could for the first time be weighing state adoption law against a federal law, little known in South Carolina, meant to protect Native American children. It’s not entirely clear why a family court judge granted custody to the girl’s father because the case record is confidential.

But a Charleston adoption attorney who has been watching the case closely said the judge may have ruled as he did because of the federal law. Or the judge may also have questioned the validity of a waiver signed by 2-year-old Veronica’s father allowing her to be put up for adoption.

The federal Indian Child Welfare Act was passed in 1978 because of the high number of Indian children that at the time were being removed from their homes by public and private agencies. The act gives the child’s tribe and family the right to have a say in decisions affecting the child.

In this case, now-2-year-old Veronica was adopted by Matt and Melanie Capobianco, who live on James Island just outside Charleston. They have cared for her since she was born.

The child’s father, Dusten Brown, a member of the Cherokee Nation, signed the waiver. But four months later, he went to court seeking custody. The courts eventually awarded Brown custody of the child and he arrived in Charleston on New Year’s Eve with his parents to take the girl back to Oklahoma.

Brown’s attorney, Shannon Jones, would not comment on the case to The Associated Press. But she has said previously that her client didn’t understand the waiver and “loves this child with all his heart.”

The Capobiancos also refused an AP request for an interview, citing a gag order that’s been sought in the case. Their attorneys also did not want to comment.

However, since Veronica was returned to Oklahoma, the website has been launched. It includes a clock that counts the days since the she left South Carolina.

There have been fundraisers to pay for legal fees, and more than 20,000 signatures have been collected on petitions to ask federal lawmakers to consider revising the Indian Child Welfare Act.

The petition was recently presented to Gov. Nikki Haley.

“My heart breaks for Matt and Melanie. If you have a child, that’s just a precious part of your life,” the governor said, adding she would speak to federal lawmakers from South Carolina. “Because it’s a federal issue doesn’t mean I can’t at least say, ‘What are you all doing about this?'”

During a recent candlelight vigil, Melanie Capobianco told a crowd that “we are trying to remain strong in the belief that our little girl, our sweet Veronica Rose, will come home.”

What’s unclear is whether the Indian Child Welfare Act entered the family court judge’s custody decision. All adoption records and hearings in South Carolina are sealed, so it’s not known if the judge ruled simply on the basis of South Carolina adoption laws or if the Welfare Act applied.

“That’s what’s so frustrating to the media and the general public,” said Stephanie Brinkley, the Charleston adoption attorney who has been following the case. She said the order, if released, would have the judge’s legal conclusions and “that would kind of connect the dots.”

The judge’s ruling might talk about the validity of the waiver signed by the father, she added.

“In the media there has been a lot of he said, she said,” Brinkley said. “Somewhere in between lies the truth.”

She said it’s the first time a case involving the Indian Child Welfare Act has come before the state Supreme Court and she has not found any similar cases in the United States Fourth Circuit that encompasses the Carolinas, Virginia, West Virginia and Maryland.

“I think this is a tough case because it is so emotionally charged,” she said. “This is an innocent child. She is caught in the middle of it. Obviously there are people who love her very much and everybody wants to be a part of her life. But their passion about her and wanting to be in her life is kind of bringing out the worst in both sides.”

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