Adoptive Parent Entitlement in South Carolina/Cherokee/ICWA Case/Baby Veronica UPDATED

This is a story in which the media has told mostly from the adoptive parents’ and their friends’ perspective. But we will attempt to tell the story with all those pesky facts that profoundly change this story from the brave, adoptive parents fighting to “save” their daughter to the tireless effort of a biological father who has spent years fighting to raise his daughter.

We will start by saying that this adoption was completed with the help of an unnamed private attorney, not an adoption agency. CORRECTED January 7, 2013: The US Supreme Court petition names Nightlight Christian Adoptions in Oklahoma as the agency that introduced the birthmother to the couple. This has not been published in the articles that we have seen on this case.

A South Carolina couple, Matt and Melanie Capobianco, were selected by a potential birthmother from Oklahoma through the private attorney. Matt works for Boeing. Melanie is a developmental psychologist [which makes this drawn-out case particularly disturbing as she should have known it would have been easier on her daughter to transfer custody when she was 4 months old versus 2 years and 3 months old.]

Many articles and the adoptive parent-friendly comments do not fully explain father Dusten Brown’s  Cherokee heritage and enrollment in the Tribe correctly, grossly underestimating how long he has been enrolled and in some cases implying that he enrolled only during this case. That is not true. News9 does explain it correctly. They explain that “Dusten Brown, is Cherokee and has been a citizen for more than a decade. According to court documents, Veronica’s parents never married and the mother put her up for adoption.

The adoptive parents and their friends on their Save Veronica website list multiple bullet points about the adoptive parents’ preparation, costs and struggle as if that matters to the ethical and moral placement of this child and their decision to fight this from the four-month point.  They claim that he knew the due date, did not provide for her and did not visit the child,but they do acknowledge that he was training in the Army at the time.

Brown did not try to visit Veronica before he was deployed to Iraq with the Army, though he did visit another daughter, and he didn’t try to meet his youngest child she was nearly 2 years old, according to court filings.

In November family court judge Deborah Ann Malphrus ordered that the Capobiancos turn over Veronica by Dec. 28. The couple appealed and bought some time with an emergency petition.”

Veronica did get released to Dusten’s custody on December 31, 2011 and they drove from South Carolina to Oklahoma where Dusten lives with his parents.

WTLX says “The [adoptive] couple did get to talk to Veronica on the phone earlier this week. “She said, ‘Hi mommy! Hi daddy!’ She sounded really excited to hear us and she said, ‘I love you, I love you,’ numerous times,” says Melanie.

But they’re still fighting to have more than just her voice back in their home. ”

Dusten clearly is allowing ongoing contact.

News9 says “The Capobianco’s plan take the case to the South Carolina Supreme Court. In the meantime, the Cherokee Nation has asked that the judge’s final decision be released to the public.

Cherokee Nation Defends Federal Law In Multi-State Child Custody Battle
[News 9 1/5/12 by Lacey Lowry]

James Island family turns over 2-year-old girl following court order
[Post and Courier 12/31/11 by Allyson Bird]

Couple will fight for adopted daughter’s return
[ABCNews 4 1/2/12 by Eric Egan]

Couple Battling with Native American Tribe Over Adoption of Veronica Capobianco
[WLTX 1/4/12 by Sydney Cummins]

SC couple fights for custody of adopted child now in OK
[Fox 23 1/4/12 by Adam Paluka]

Save Veronica
[Friends of Adoptive Parents Website]

REFORM Puzzle Pieces

There does not seem to be honest representation on the birthmother’s part, questionable honesty on the adoption representative who contacted the Tribe.

Impairment of integrity and departure from what is correct is the type of corruption involved in this case.

Update: “The birth father of an adopted 2-year-old Cherokee girl at the center of a custody battle loves the toddler and has been trying to get her back since shortly after her birth, his attorney said on Monday.”

“”My client has been fighting for custody of his child since shortly after the child’s birth,” said attorney Shannon Jones, who defended the 1978 federal law. “He loves this child with all his heart.”

The Capobiancos legally adopted Veronica at birth through an open adoption in Oklahoma in 2009, according to the couple’s spokeswoman. She said that when Veronica was four months old, in January 2010, Brown agreed in writing that he would not contest the adoption. He later changed his mind and began petitioning for custody, she said.

An appellate court in Columbia, South Carolina eventually ruled in Brown’s favor, saying the federal Indian Child Welfare Act that protects Native American families from being separated trumped South Carolina law.

“It is important to understand that the Indian Child Welfare Act was not used as a loophole in this action,” Jones said in the statement. “The family court followed both state and federal law,” she said.

The Capobiancos are preparing an appeal.

Cherokee Nation is involved in 1,100 active child welfare cases nationally that involve about 1,500 children, according to the Cherokee Nation Attorney General’s Office.

They include adoption cases and abuse, neglect or deprivation cases in which the child has been removed from the home by the state.”

Lawyer defends Native American adoption law in toddler case
[Chicago Tribune 1/9/12 by Harriet McLeod/Reuters]

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 http://www.saveveronica.org 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.”
Emotional adoption case may weigh state, fed law
[Myrtle Beach online 2/5/12 by Bruce Smith/Associated Press]

Update 3: Four organizations(National Indian Child Welfare Association (NICWA); North American Council on Adoptable Children (NACAC);National Congress of American Indians (NCAI); Child Welfare League of America (CWLA))write an open letter to CNN and Anderson Cooper about how this case has been characterized.

An Open Letter to CNN and Anderson Cooper
[Indian Country Today 3/10/12 by NICWA, NACAC, NCAI, CWLA]

Update 4: The court has set April 17, 2012 as the hearing date.

“S.C. Supreme Court officials released the date of the hearing in the Veronica adoption case that captured national attention, but they said oral arguments would be closed to the public. Records in the case have been sealed, and all parties remain under a gag order.

Jessica Munday, a close friend of adoptive parents Matt and Melanie Capobianco, said she and other supporters place their faith with the high court and trust it “will make the best decision for everyone involved, based on the facts and laws placed in front of them.”

The Capobiancos connected with Veronica’s birth mother in Oklahoma in 2009 after seven failed in vitro fertilization attempts. Four months passed between Veronica’s birth and the day her biological father, 30-year-old Dusten Brown, filed for paternity and custody.

Brown is a registered member of the Cherokee Nation. He and the Capobiancos endured two years of hearings and paperwork before a Charleston family court judge ruled later last year in his favor under the Indian Child Welfare Act, a federal law designed to preserve Native American families.

The judge ordered the Capobiancos to turn over Veronica, and Brown and his parents drove the toddler back to Oklahoma on New Year’s Eve. The Capobiancos’ friends gathered more than 20,000 signatures on a “Save Veronica” petition in the weeks that followed, and they hand-delivered the document to federal lawmakers’ offices and to Gov. Nikki Haley in January. The couple took their case to the state Supreme Court that same month in hopes of overturning the family court ruling.

Munday said she has fielded dozens of emails and phone calls from other adoptive families in similar situations in the past few months. She said she hopes Veronica’s case will bring a fresh look at the Indian Child Welfare Act.

“It has been very unfortunate that a small group of people view our support efforts as an anti-Native American campaign,” Munday said. “That is simply not true. Many of our supporters are Native American. The issue is with the Indian Child Welfare Act and how it is being used.”

Representatives for the Cherokee Nation declined to comment for this story.”

Court to hear Veronica adoption case April 17
[Post Courier 3/16/12 by Allyson Bird]

Update 5: “The court proceedings Tuesday afternoon [April 17, 2012] will be closed and records are sealed because it is an adoption case. A ruling is expected in mid-May, and parties and attorneys have been ordered by the court not to comment.”

“Friends and supporters of the couple have gathered almost 22,000 signatures on a petition to Congress asking for changes to the Indian Child Welfare Act.

“We’re not saying the whole law has to go away,” Munday said on Monday. “There was obviously an intent for it. You hear about tribes with only 1,000 members. They don’t want to lose their culture.”

The 1978 law gives tribes a right to intervene in adoption and child welfare cases and provides extra protections against the parent of an American Indian child having parental rights removed, said Chrissi Nimmo, assistant attorney general of the Cherokee Nation.

Under the law, a child should be placed with a member of the child’s extended family, whether they are Indian or not; a member of the child’s tribe; or a member of another Indian tribe.

The law was passed “as a result of studies that found that Indian children were being removed from their families at a disproportionately higher rate than other children,” Nimmo said in an email. “And 99 percent of Indian children in adoptive placements were in non-Indian homes.”

The Cherokee Nation, which has about 317,000 current enrolled members, is involved in about 1,100 various types of child custody proceedings nationwide, Nimmo said.

Nimmo said only one Indian Child Welfare Act case has reached the U.S. Supreme Court, which ruled in 1989’s Mississippi Band of Choctaw Indians vs. Holyfield that “the tribal court had exclusive jurisdiction over a private adoption even though the mother left the reservation to give birth to twins.”

South Carolina law allows a reasonable amount of time before and after birth for a father to establish paternity rights, said Stephanie Brinkley, a Charleston adoption lawyer who has researched the laws that apply to Veronica Capobianco’s case.

After that, a father’s rights can be terminated if he hasn’t provided support in some form, she said.

“You’ve got to have more than biology,” Brinkley said. “It’s biology plus action. It’s not always about money. Did he provide diapers? Did he set up a nursery in his own home? The court will look at whether Brown had a constitutional right to establish parentage.”

Cherokee adoption battle in South Carolina high court
[Chicago Tribune 4/17/12 by Harriet McLeod]

Update 6: Well it looks like the SC Supreme Court hasn’t ruled yet. The child has been united with her father for over 6 months now. But the APs still are fighting this. They now are going to march on DC.

“The adoptive parents have asked the state Supreme Court to return Veronica to South Carolina, but the court has not ruled yet.

“We only want what’s best for her,” said Jessica Munday, a family friend who’s serving as an unofficial spokeswoman for the adoptive parents, Matt and Melanie Capobianco.

In April, as they rallied on the steps of the South Carolina courthouse, supporters thought they might eventually wind up at the U.S. Supreme Court. Instead, for now, they’re going to Congress.

The Coalition for the Protection of Indian Children and Families, which includes members of the “Save Baby Veronica” campaign, will lobby for changes to the Indian Child Welfare Act of 1978.

“The very intent of the law is being compromised by how it’s being used,” the coalition says. “This federal law was originally established to protect families and Indian children — not destroy them.”

Among other changes, the group wants to give a biological parent only 30 days, instead of 12 months, to revoke consent for an adoption. They also argue that Indian birth parents should be able to choose an adoptive family for their children regardless of the family’s ethnic heritage.

The Cherokee Nation has intervened in the “Baby Veronica” battle, but with a gag order in place, officials can’t comment on the case specifically.

Generally speaking, however, the Indian Child Welfare Act does a lot of good, said Chrissi Ross Nimmo, the tribe’s assistant attorney general, who represented the Cherokee Nation in the Baby Veronica proceedings.

The coalition wants to change the law in ways that would make it easier for non-Indian families to adopt Indian children.

“This defeats the entire purpose” of the legislation, Nimmo said.

“The public rarely hears about the thousands of cases a year that either reunite Indian children with their biological parents or the cases where Indian children find permanent, loving adoptive homes with members of their family,” she said.

“The problems that you hear about in high-profile cases are not caused by the law itself. The problems are caused when attorneys, adoption agencies, and courts do not follow the federal law.”

‘Baby Veronica’ adoption case lobbyists move to Congress

[NY Daily News 7/11/12 by Michelle Overall]

This “coalition” has a dummy website at http://coalitionforindianchildren.org/ Their petition of course fails to mention that the birthmother concealed the adoption plans, that he was deployed to Iraq and he has been fighting for his child since she was 4 months old and the APs refused to yield to the father. They created this problem and have dragged things out and they continue to do so.

Update 7: The South Carolina Supreme Court Rules for the Biological Father Justen Brown in a 3-2 vote on Thursday July 26, 2012.

“The South Carolina Supreme Court on Thursday upheld the return of a Native American girl adopted by a South Carolina family to her father in Oklahoma, weighing for the first time state adoption law against the federal Indian Child Welfare Act.

SC high court agrees with return of Native American girl

[Go Upstate 7/26/12 by Meg Kinnard/Associated Press]

“The justices returned the order this morning in a case that apparently for the first time weighed state adoption law against the Indian Child Welfare Act. In a 3-2 decision, the justices said the act confers custodial preference to the child’s father, a member of the Cherokee tribe.”

Court Orders Cherokee Girl Back To Bartlesville

[Bartlesville Radio 7/26/12]

“”We’re very pleased with the results,” Cherokee Nation Attorney General Todd Hembree said. “This is a victory not only for the Cherokee baby and her father, but for all of Indian Country. The Cherokee Nation has done a great job to ensure the Indian Child Welfare Act is enforced to preserve Indian families.”

“”We respect the father and child’s right to privacy,” Hembree said. “It’s our hope that the adoptive parents do not pursue the matter to the U.S. Supreme Court.”

The Capobianco’s have 15 days to ask the South Carolina court for a rehearing and if they do, the father’s attorney says they will have 15 days to file a response.”

South Carolina Supreme Court Upholds Reuniting Adopted Girl With Bartlesville Father

[News on 9 7/26/12]

Update 8: THE ENTITLEMENT CONTINUES…the child has now been with her dad for 7 and a half months.

“The South Carolina parents who adopted a Native American girl have asked a high court to reconsider its decision to send her back to Oklahoma.

Court officials confirm that the adoptive parents on Friday asked the South Carolina Supreme Court to rehear their case.

Last month, the court voted 3-2 to return the now-2-year-old girl to her biological father in Oklahoma. In its first decision weighing state adoption law against the federal Indian Child Welfare Act, the court wrote the adoptive family likely bonded in their time together but that the federal law gives custodial preference to the girl’s father, a member of the Cherokee tribe.

No further details about the request were immediately available, and it wasn’t clear when the court would decide if it would rehear the case.”

Rehearing sought in Native American adoption case

[The Sacramento Bee 8/13/12 by The Associated Press]

Update 9: Slate gives commentary to this case. See August 23, 2012 piece by Marcia Zug here. Apologists defend the despicable actions of the APs and agency in the comments. Most do not understand that Dusten fought the adoption since he knew about it 4 months after Veronica was born; that the adoptive mother is a PhD who should have known better to pursue this adoption; or that she has been reunited since the 1st of the year.

Update 10: SC Supreme Court says NO to rehearing.

“The South Carolina Supreme Court will not reconsider its decision sending a Native American girl back to Oklahoma.
The child’s adoptive parents who live in Charleston asked the court earlier this month to rehear the case. Court officials said Wednesday the request was denied on Aug. 22.
The court voted 3-2 last month to return the 2-year-old girl to her biological father in Oklahoma. It was the court’s first decision weighing state adoption law against the federal Indian Child Welfare Act.
The court wrote while the adoptive family likely bonded, federal law gives custodial preference to the girl’s father, a member of the Cherokee tribe.
A state family court judge awarded custody of the child to the biological father last year and the adoptive parents appealed to the court.”

SC Supreme Court won’t rehear adoption case

[WCBD 8/30/12 by The Associated Press]

Update 11: Capobiancos are appealing to US Supreme Court! Deep Sigh!

“Washington, D.C. attorney Lisa Blatt has joined the legal team representing Matt and Melanie Capobianco, of Charleston, South Carolina.”

“Only one Indian Child Welfare Act has reached the U.S. Supreme Court, in 1989, and in that case, the court ruled that “the tribal court had exclusive jurisdiction over a private adoption even though the mother left the reservation to give birth to twins” and preferred that a non-Native couple raise her children. ”

Baby Veronica Custody Case To Be Appealed To U.S. Supreme Court

[News on 6 9/14/12]

Update 12: They filed the “142-page petition filed with the high court Monday[October 1, 2012].”

S.C. couple appeals Cherokee child custody case to US Supreme Court

[The Augusta Chronicle 10/5/12 by Bruce Smith/Associated Press]

They printed her photo in this article and gloss over everything that the biological father did to get her back from age 4 months forward.

Update 13: On Thursday, October 18, 2012, the Capobiancos went on the Dr. Phil show.

“The adoptive parents of a Native American girl from Oklahoma sat down with Dr. Phil Thursday to discuss their petition to the U.S. Supreme Court and the contentious adoption case.

The girl’s father, who is from Muskogee and is a member of the Cherokee Nation, used the Indian Child Welfare Act to get custody of his two-year-old biological daughter, Veronica.

The South Carolina couple, who adopted her and raised her since birth, Matt and Melanie Capobianco, are fighting it.

They say having her taken away has torn their family apart.

Dr. Phil sat down with the Capobiancos, as well as the Assistant Attorney General for the Cherokee Nation and a tribal judge, who is familiar with the Indian Child Welfare Act.

“You want to commit cultural genocide, steal a people’s children and taken them away and place them in non-Indian homes. This is what was happening before this law was enacted,” said tribal judge Les Marston.”

Adoptive Parents Of Baby Veronica Sit Down With Dr. Phil

[News on 6 10/18/12]

The show parts can be seen at this link: here. It is disgustingly one-sided and covers none of the real issues, as expected with all cases that Dr. Phil covers.

NICWA responded. See here and pasted below:

“On October 18, 2012, the Dr. Phil show aired an episode that focused on a disputed custody case involving an American Indian child, Veronica. The case pits a loving father’s attempts to parent his daughter against a non-Indian couple from South Carolina–the Capobiancos–and their attorneys who orchestrated an illegal attempt to adopt Veronica. The National Indian Child Welfare Association (NICWA) is gravely disappointed in the heavy slant toward the Capobiancos’ recounting of the situation and interpretation of the legal issues in the case.
Veronica’s father, who has been relentlessly vilified in the media as a “deadbeat dad” is, in fact, a loving parent and a decorated Iraq war veteran. Rather than acknowledge his right to protect his daughter from a media firestorm that has proven deeply biased, the Dr. Phil show instead allowed personal attacks on his character and speculation on his parenting–from those who admittedly have had no contact with him–to continue unchallenged. We find these attacks unsupported by court records and unacceptable.
Veronica’s pre-adoptive placement was kept secret by her mother and attorneys representing the Capobiancos. Her placement with them was not revealed to Veronica’s father for four months–just days before he was sent to Iraq. Upon learning of his daughter’s proposed adoption, the father quickly moved to affirm his rights to parent Veronica. After three decisions supporting his rights in the South Carolina courts, he has been parenting her since January 2012.
Dr. Phil and several of his guests ignored the fraudulent process attorneys representing the Capobiancos used to help them gain custody of Veronica during their unsuccessful attempt to adopt her. That Veronica is American Indian was known by the Capobiancos and their attorneys, as was the fact that any adoptive process involving her would be covered by the Indian Child Welfare Act (ICWA). Instead of delving into why the Capobiancos were advised to circumvent the law, putting Veronica at high risk, Dr. Phil instead chose to rebuff the two guests with the most knowledge of this case and experience in such matters, Assistant District Attorney of the Cherokee Nation Chrissi Nimmo and Les Marston, attorney and tribal judge.
NICWA understands this case is emotionally-charged and has attracted worldwide attention. Nonetheless, we must reject the subjective definitions of what is in Veronica’s best interest that Dr. Phil disappointingly reinforced. Not only did the discussion of Veronica’s “best interest” completely discount the importance of her cultural identity and rights as a tribal citizen, it more shockingly ignored the significance of her being raised within a loving home with her father, sister, stepmother, and loving grandparents–and among a community that includes extended family and tribal members who love her. As Nimmo correctly stated, if Veronica was a non-Indian child, existing state and federal laws would have afforded the father an opportunity to seek custody of her and not reward those who violated the law.
Furthermore, NICWA firmly believes that Veronica’s best interest is not served by the continued negative media campaign currently pursued by the Capobiancos and their public relations firm. We have no doubt they love Veronica, but in this case, the ends they hope to accomplish certainly do not justify the means. Dr. Phil’s portrayal only serves to put Veronica at further risk.
The show’s characterization of ICWA was also filled with misinformation and inaccuracies. ICWA is a law that has helped protect thousands of American Indian children and keep them with their families. Veronica’s story illustrates the clear ongoing need for federal protections like ICWA for American Indian children who continue to be the victims of questionable, and sometimes illegal, attempts to adopt them out. ”

Update 14: A new article is published. It starts by saying that Dusten had not seen his daughter until one year ago. There was that part about being deployed to Iraq that they may want to mention and that he doesn’t live anywhere near South Carolina. They also may want to mention that he didn’t just object in December 2011 as the article seems to imply but 4 months after birth as he was ready to deploy to Iraq. They do mention that the  “written proof” of abandonment was via a text message. Daily Mail claims that Dusten has not allowed contact but our previous updates indicate that phone contact was being allowed.

The couple fighting to see Native American girl, 3, who they adopted at birth but were ordered to HAND BACK to biological father because of ‘tribal rights’

[Daily Mail 12/25/12]

Update 15: On Friday January 4, 2013, the US Supreme Court agreed to take the case. The 142-page petition can be viewed here.Page 16 of the pdf reveals that Nighlight Christian Adoptions of Oklahoma is the agency involved. Previous articles never mentioned an agency.

Page 41 in the appendix states Father that she was pregnant in January 2009. At the time Mother became pregnant, Father was actively serving in the United States Army and stationed at Fort Sill, Oklahoma, approximately four hours away from his hometown of Bartlesville, Oklahoma, where his parents and Mother resided.Upon learning Mother was pregnant, Father began pressing Mother to get married sooner.
The couple continued to speak by phone daily, but by April 2009, the relationship had become strained. Mother testified she ultimately broke off the engagement in May via text message because Father was pressuring her to get married. At this point, Mother cut off all contact with Father.

I quote this excerpt because most articles leave out that he wanted to marry her and she left him. This leaves uninformed commenters to continually bash him. The brief does claim that he gave no monetary support after she left him.

Page 43 explains how many people involved in the legal process KNEW Dusten was Cherokee AND how the Capobiancos hired an attorney FOR the birthmother. “Mother testified that she knew “from the beginning” that Father was a registered member of the Cherokee Nation, and that she deemed this information “important” throughout the adoption process.5
Further, she testified she knew that if the Cherokee Nation were alerted to Baby Girl’s status as an Indian child, “some things were going to come into effect, but [she] wasn’t for [sic] sure what.” Mother reported Father’s Indian heritage on the Nightlight Agency’s adoption form and testified she made Father’s Indian heritage known to Appellants and every agency involved in the adoption. However, it appears that there were some efforts to conceal his Indian status. In fact, the pre-placement form reflects Mother’s reluctance to share this information: Initially the birth mother did not wish to identify the father, said she wanted to keep things lowkey as possible for the [Appellants], because he’s registered in the Cherokee tribe. It was determined
that naming him would be detrimental to the adoption.

Appellants hired an attorney to represent Mother’s interests during the adoption. Mother told her attorney that Father had Cherokee Indian heritage. Based on this information, Mother’s attorney wrote a letter, dated August 21, 2009, to the Child Welfare Division of the Cherokee Nation to inquire about Father’s status as an enrolled Cherokee Indian. The letter stated that Father was “1/8 Cherokee, supposedly enrolled,” but misspelled Father’s first name as “Dustin” instead of “Dusten” and misrepresented his
birthdate. (emphasis added).”

“The United States Supreme Court agreed on Friday to hear the case of baby Veronica Capobianco, who was adopted by a Lowcountry family only to be taken back after the birth father used the Indian Child Welfare Act to reclaim the girl.

The Capobianco family had adopted at birth the daughter of a young woman who was not a tribal member, but the child was considered to be an Indian because of her father’s tribal membership.

The Capobiancos had to give up the child after raising her for two years, because a state court ruled that the federal law took priority over state law.

The issue in the case is the definition of “parent” under the federal law, including whether that includes an unwed father who “only belatedly claimed parental rights,” according to SCOTUSblog, a site that reports on all things related to Supreme Court cases.

US Supreme Court agrees to hear Capobianco case

[ABC 4 1/4/12 ]

Update 16: “Maine is joining South Carolina and several other states in defending a federal law that deals with Indian adoption rights and will be a central topic in a case that goes before the U.S. Supreme Court next month, Attorney General Janet Mills announced Thursday.

Mills said Maine signed onto an amicus brief in the case defending the Indian Child Welfare Act of 1978. She said the case has implications in Maine, where a process is under way to investigate systematic removal of tribal children from their households before passage of the Indian Child Welfare law.

The S.C. case involves 3-year-old Veronica, or Little Star, as she is known to the Cherokee. She was born in Oklahoma to a father who is a Cherokee Nation member and a non-tribal mother.

The mother put up the child for adoption, and a non-Indian family, Matt and Melanie Capobianco of James Island, adopted her. Mills said the father was a member of the military and was notified of the planned adoption four days before his scheduled deployment to Iraq.

In a case challenging the adoption, the S.C. Supreme Court ruled that it violated the Indian Child Welfare Act, which gives a parent of a tribal member strong preference for custody. The child was ordered back to Oklahoma to be with her biological father, Dusten Brown.

Attorneys for the Capobiancos argue that the “human tragedy” of removing Veronica from the couple’s home was neither mandated by the act nor permitted by the Constitution.

Maine joins South Carolina in adoption lawsuit before Supreme Court

[Charleston Post and Courier 3/29/13]

“Attorney General Janet Mills announced Thursday that she has signed on to a case in the U.S. Supreme Court, urging the full enforcement of the 1978 Indian Child Welfare Act.

The Indian Child Welfare Act spells out federal standards meant to ensure that the rights of Native American children, their parents and their tribes are fully respected in child custody proceedings, according to a press release from Mills. It requires that a parent who is a tribal member be given strong preference for custody and requires that in an adoption, placement of an Indian child whose parents have given up their rights must be prioritized to the child’s extended family or other Indian families.

The case before the U.S. Supreme Court involves a baby born in Oklahoma to a father who is a member of the Cherokee nation. The non-Indian mother, who was not married to the father, put the child up for adoption and the child was placed with a non-Indian family and moved to South Carolina. The Supreme Court in that state eventually ruled that a lower court had violated the Indian Child Welfare Act.

“The facts of the South Carolina case are particularly outrageous because the father of this Indian child was in the military and he was first notified about the proposed adoption of his child only four days before he was scheduled to deploy to Iraq,” said Mills. “The state of Maine, the Wabanaki people, and potential adoptive parents should know what the federal law requires and should know that the law will be applied evenly.”

Rep. Wayne Mitchell, who represents Maine’s Penobscot Nation in the Legislature, said the state’s tribes are fully behind the attorney general’s action because it will help them ensure their culture.

“If the ICWA in any way is watered down or its impact that it has in preserving the tribe’s sovereignty and its culture, then it will have an impact on the tribes in Maine,” said Mitchell during a press conference Thursday at the State House.

Mills said she had no hesitation in signing onto the Supreme Court’s amicus brief, which has also been supported by at least 11 other state attorneys general.[Actually more that that!] She said Maine has adhered to the act since 1978 and that the Truth and Reconciliation Commission is involved with events that happened even before that.

“Anecdotally, tribal children were pulled from their families without consideration of tribal interests,” said Mills. “It’s my hope and expectation that every member of [the Maine Department of Health and Human Services] and the court system will respect the principles and language of the Indian Child Welfare Act whenever child custody issues are brought to their attention.”

Mills said she expects the U.S. Supreme Court to take up the South Carolina case in late April.”

Maine attorney general backs defense of Indian Child Welfare Act

[Bangor Daily News 3/28/13 by Christopher Cousins]

See NICWA press release describing the 24 Amicus Briefs in support of the Browns here. It has bipartisan support. They say that April 16 is the day the case will be heard. Not one state has filed any Amicus Brief in support of the APs.

Update 17: One group has filed an Amicus Brief in support of the APs…The American Association of Adoption Attorneys . Big shocker there. The ones who KNEW that Dusten was Cherokee and purposely didn’t pursue the adoption under ICWA regulations and the ones who made $$$ from this child’s placement. Tuesday April 16 is the day that the Supreme Court will hear the case.

Dusten is now married to Robin and the article shows a nice picture of all three of them. Of course the FACT that NIGHTLIGHT was involved in this case STILL has yet to be published in any media article. They get protected.

“This is yet another case about federalism — about states’ rights — some experts have told the Court. And Paul Clement, the conservative lawyer representing the child’s guardian in the case, has made an extraordinary argument designed to undercut federal oversight over Indian affairs: These statutes, he argues, are unconstitutional because they are based upon racial classifications that violate the equal protection rights of non-Indians.

Some of the elements of the case, sadly, harken back to the bad old days of dark stereotypes about Indians. The adoptive couple, who’ve relentlessly argued their case in the court of public opinion by appearing on television with the likes of Anderson Cooper and Dr. Phil, have been widely portrayed as the innocent victims of the story. Meanwhile, Baby Veronica’s father has been largely portrayed as little more than a shifty, good-for-nothing drifter. The truth lies somewhere in the middle — and the fact is that Baby Veronica’s story is precisely the sort of story Congress had in mind when it passed the ICWA.

Which is why it was a surprise to many when the justices in Washington agreed to hear the case. The Supreme Court of South Carolina, where the adoptive couple lives and where Baby Veronica was located at the time of the lawsuit, ruled that the federal law trumped state law and gave custody of the child back to her biological father. So did the justices take the case to reaffirm the primacy of Congressional authority over the lives of Native Americans? Did they take the case to strengthen the federal law? Or did they take the case to force Baby Veronica’s father to give her back to the white couple who thought they had successfully adopted her?

Some Facts

Like most cases that come before the Supreme Court, the “Baby Veronica” case has many more villains in it than heroes. Neither of the little girl’s biological parents respected each other enough to do right by their legal or moral obligations to one another. The father did not want to pay child support. The mother did not tell the father that she intended to place the baby up for adoption. The adoptive couple filed for adoption three days after Baby Veronica was born but didn’t give her father official notice of the proceedings for four months — that is, until just a few days before Brown, a U.S. Army soldier, deployed to Iraq.”

“Some Law

The South Carolina Supreme Court viewed these facts as consistent with the language and purpose of the Indian Child Welfare Act, and it’s not hard to see why. The law was passed 35 years ago because Congress was concerned with adoption practices that separated large numbers of Native American children from their parents (and their heritage). In plain English, having for centuries implemented policies and practices which shattered the centrality of Native American family life, federal lawmakers tried to do something remedial about it. From an amicus brief filed in the case by current and former members of Congress:

Congressional inquiry over several years [in the mid 1970s] demonstrated the severity of the problem: a large percentage of Indian children — one-quarter to one-third — were being adopted or placed in foster care families outside of the Indian tribes; state adoption policies provided little to no protection for maintaining the tribal affiliations of these adopted Indian children; and the loss of millions of acres of tribal lands at the turn of the twentieth century rendered the continued existence of an Indian tribe’s sovereign identity dependent on the tribe’s ability to maintain its future generations of citizens — citizens who would learn the tribe’s language, practice its traditions, and participate in its tribal government, regardless of whether they lived on or off a reservation.

The purpose of the law was to help protect Native American parents like Brown by preventing the “involuntary removal” of Indian children as well as any voluntary adoptions — like this one — which did not give preference to the child’s Indian relatives. It was designed to help keep Indian families together — or at least to give Indian fathers a better chance at keeping custody of their children. In recognizing the purpose of the federal law, and the concomitant need to protect Indian children from having their lives determined by non-Indians, the South Carolina Supreme Court cited a tribal chief’s poignant Congressional testimony:

One of the most serious failings of the present system is that Indian children are removed from the custody of their natural parents by nontribal government authorities who have no basis for intelligently evaluating the cultural and social premises underlying Indian home life and childrearing. Many of the individuals who decide the fate of our children are at best ignorant of our cultural values, and at worst contemptful of the Indian way and convinced that removal, usually to a non-Indian household or institution, can only benefit an Indian child.

The law has been successful — but not entirely. There will be no argument here that the law must be struck down because it has achieved its goal. In their amicus brief in the case, Indian rights groups point out that “recent analyses of national child welfare data indicate that the out-of-home placement of Indian children is still disproportionate to the percentage of Indian youth in the general population and that Indian children still continue to be regularly placed in non-Indian homes.” The law also has been consistently upheld by the justices in Washington as a constitutional exercise of Congress’s authority over Native American affairs.

Matt and Melanie Capobianco

All sides agree that the key legal question in this case is essentially a definitional one. The adoptive couple, Matt and Melanie Capobianco, argue that Baby Veronica’s Indian father “unceremoniously” renounced his “parental rights to his unborn daughter” and thus forever waived his rights to be considered an Indian “parent” under federal law. They say that South Carolina’s law would not have required his consent to the adoption and that the Indian Child Welfare Act wasn’t designed to protect the rights of Native American parents. From their brief:

The state court’s application of ICWA here transformed a statute that prevents the removal of Indian children from their homes into a statute that required the removal of an Indian child from her home …The court held that an unwed biological father of Indian lineage who has abandoned a pregnant mother and child may veto the non-Indian mother’s lawful decision to place her child for adoption, even though under state law the father lacked custodial rights and his consent was not required for the adoptive placement.

But the state courts disagreed. Regardless of how state law might have resolved the dispute, the judges ruled that the girl would never made it to South Carolina, and into the Capobianco’s home, had the couple followed federal law. Brown was a “parent” under the ICWA, two state courts ruled, because he was the girl’s “biological parent” who had established his federal rights by “acknowledging his paternity … as soon as he realized” the girl had been put up for adoption. His waiver of his parental rights was invalid, the South Carolina courts concluded, because the adoptive couple “did not follow the clear procedural directives” of the federal law.

This is all wrong, the Capobiancos told the justices, and a grave injustice is going to occur if Baby Veronica gets to stay with her father. Federal law “does not countenance the chaos and heartbreak that would ensue if tribes or noncustodial fathers with no right to object to an adoption could later uproot Indian children from their adoptive families.” Of course, the “chaos and heartbreak” over adoptions that took Native American children away from their families and tribes is the very reason why Congress enacted the Indian Child Welfare Act in the first place. At least in this case, it appears the Indians have the letter of the law on their side.

Turning Equal Protection on its Head

This is another case where state law conflicts with federal law — which means it is yet another Supreme Court case involving principles of federalism and states’ rights. Enter Clement, the conservative lawyer, who on behalf of the child’s guardian (more on her later), has filed a jaw-dropping brief. Clement doesn’t just want to win for the Capobiancos. He wants also to undermine Congressional authority over the ICWA and all federal Indian law, and he wants to do so not just for this client but for another client, a non-Indian gaming client (who, as you might imagine, also has great eagerness to see the demise of federal Indian law).

So the federalism argument is here. And Clement also makes explicit some of the ugliest threads of this story. Brown doesn’t deserve to have custody of his daughter, Clement argues, in part because he has only “a sliver of genetic material” making him a Native American. The child is “predominantly Hispanic with some Native American and Caucasian background,” Clement writes, as a prelude to his argument that the little girl’s equal protection rights have been violated because the ICWA is a law based unlawfully upon race. Got that? By protecting Indian fathers and Native American heritage, the federal law unfairly burdens white people.

This is another version of the same argument conservatives like Clement have made with such force recently in their challenge to affirmative action and the Voting Rights Act. In this view, the federal law which gave Baby Veronica back to her father wasn’t a laudable shield protecting Indian families from questionable adoptions, but rather a “race-based preference” that lifts Native American fathers to an unlawfully exalted place in custody law. Because it’s a law based on race, Clement then argues, the statute must be evaluated by the courts using the toughest constitutional standard of review. It can’t withstand that review, he writes.

The Justice Department

The Obama Administration sides with Dusten Brown and the federal law upon which he relies. “The South Carolina court properly awarded custody of Baby Girl to Father,” wrote Justice Department lawyers in their brief to the justices. The federal law applies to any “child custody proceeding” involving an “Indian child,” the feds argue, and it is “uncontested that those two predicates are satisfied here. The Capobiancos, the feds wrote, seek a “judicially-invented exemption to the ICWA” that would allow state judges to circumvent it whenever they feel they are justified in doing so. The text of the federal law is clear, they say, and it covers this case.

The “exemption” the feds mention here is likely the reason the justices took this case. Some states have tried to evade the mandate of the ICWA in cases where “the adoption is voluntary and is initiated by a non-Indian mother with sole custodial rights.” But most other states have refused to recognize such an exemption. It’s hard to imagine the justices not resolving this case without resolving that conflict in the way the federal law has been interpreted. The exemption is “particularly problematic,” the feds contend, “because, as sometimes applied in the lower courts, it requires assessment of the ‘Indianness’ of a particular parent or child.”

The Justice Department also responded to Clement’s equal protection argument by briefly — perhaps too briefly — telling the justices that the ICWA is based entirely on political, not racial, classifications. Both biological parents of Indian children — whether both are Indian or not — have rights under the federal law, the feds say. Moreover, “the definition of ‘Indian child’ does not comprise all children who are ethnically Indian,” the feds write, “but rather only those who are members of federally recognizable Tribes or are eligible for membership and have a biological parent who is a member of such a Tribe.”

Postscript

When you don’t have the law, you argue the facts. When you don’t have the facts, you argue the law. And when you have neither the law nor the facts on your side, you argue for equity and justice. The adoptive couple, the Capobiancos, have been out and about telling anyone who will listen that the Indian Child Welfare Act “is destroying families” and has, in fact, destroyed theirs. Technically, it has done exactly that. Without it, Brown would not now have custody of the girl. But that begs the question of the case — did the Capobiancos have the legal right in the first place to take the girl home to South Carolina?

Inevitably, I suppose, this spin campaign has brought with it religious and racial overtones that surely trigger terrible memories for Native Americans, whether in the end they really care about Baby Veronica or not. For example, there was a popular online petition to amend the federal law — in which Baby Veronica’s return to her biological father is considered a “human rights” violation and Indian tribes are deemed to have “unjust power to remove children from happy, healthy homes.” And there is the work of the Christian Alliance for Indian Child Welfare, with a website dedicated to “saving” Baby Veronica by returning her to the Capobiancos.

And then there is the unseemly role of the guardian in the case, a woman who demonstrably has no business being involved in any case involving the rights of Native American citizens, be they little girls or adults. The guardian, according to Brown’s brief, told him that “she knew the adoptive couple prior to the child being placed in their home,” that the Capobiancos could afford to send the little girl to private school, and that as a result Brown’s family “really need[ed] to get down on [their] knees and pray to God that [they] can make the right decision for this baby.”

At first, the brief alleges, the guardian ignored Baby Veronica’s Indian heritage, but then said “that the advantages of Native American heritage “includ[ed] free lunches and free medical care and that they did have their little get-togethers and their little dances.” This is Paul Clement’s client. And this is part of the record of this case. It shouldn’t be about religion. It shouldn’t be about which family can provide this little girl with tuition. It shouldn’t be about white perceptions of Indian culture. It should be about whether or not the justices are going to support efforts to protect Indian families in the fashion set forth in the ICWA.

Indeed, this law is a rare example where Congress actually did something right by the Indians, by creating a national standard designed to preclude the type of state-centered “home-court advantage” symbolized by the attitude of the guardian in this case. The law adds a layer of protection for Indian fathers who face the possibility of losing their children in adoption to couples like the Capobiancos. And it refuses to reward adoptive parents who have failed to properly notify the biological fathers of Indian children that they are about to lose custody of their kids — as the South Carolina courts found in this case.

Cases like this are among the most difficult the justices ever have to decide. If you don’t believe me, ask Justice Antonin Scalia, who last fall cited an ICWA case from 1989 as one of his hardest in 27 years on the Supreme Court bench. They are difficult because there is only one child and two families seeking to raise her and thus no wiggle room for Solomon’s compromise. The Capobiancos surely deserve to have a child of their own. And so, federal law says, does Dusten Brown. In this instance, at least, the white man’s burden figures to be too much to bear.”

Indian Affairs, Adoption, and Race: The Baby Veronica Case Comes to Washington [The Atlantic 4/12/13 by Andrew Cohen]

Update 18: “Sitting side by side as always Tuesday on the Supreme Court, Justice Antonin Scalia and Chief Justice John Roberts could not have been further apart on an emotionally charged case involving the custody of a 3½-year old girl.

Their opposing reactions to the same set of facts illustrated the wrenching decision facing the justices in a rare case that gives them the power to decide who gets “Baby Veronica” — the adoptive couple who raised her for 27 months or the biological father to whom lower courts granted custody 15 months ago.

That the nine justices of the Supreme Court are presiding over the type of case normally reserved for Family Court reflects the unusual circumstances. They have jurisdiction because Veronica is 3/256th Cherokee, and the Indian Child Welfare Act was passed by Congress in 1978 to prevent the involuntary breakup of Native American families and tribes.

Only once before has the act been tested at the nation’s highest court. Nearly a quarter-century ago, the court took Native American twins from their adoptive family and handed them back to a tribal council in a case Scalia recently said was the toughest in his 26 years on the bench.

The new case appears just as wrenching, if for no other reason than Veronica is a cute and apparently resilient little girl who has been tossed from her birth mother to her adoptive parents in South Carolina, then to her father in Oklahoma, because of Congress and the courts.

Although most state laws would break in favor of the adoptive parents — given their involvement during the pregnancy, birth and early years vs. the father’s absence — the county and state courts in South Carolina gave the edge to the dad because of the unique federal law involved.

That left Paul Clement, a former U.S. solicitor general representing the girl’s appointed guardian, so animated that he tripped over the fraction “3/256th” and resorted to “1%.”

“As a result of that, her whole world changes,” Clement said.

Tuesday, Scalia didn’t seem torn at all. “This guy is the father of the child, and they’re taking the child away from him even though he wants it,” he said in reference to Dusten Brown early in the hour-long oral argument.

Whether the adoptive couple would make better parents isn’t relevant under terms of the statute, Scalia said later. “I know a lot of kids that would be better off with different parents,” he said.

While Scalia appeared to align himself with the court’s three female justices, Roberts was clearly leaning toward the adoptive couple, Melanie and Matt Capobianco. It appeared Roberts had some conservative justices on his side.

The chief justice, whose two children are adopted, noted Brown had not shown interest in fatherhood or child support until the adoption. He said the law gives undue preference to Native American bloodlines, no matter how marginal.

When Charles Rothfeld, Brown’s lawyer, said the father originally had been “excited” by his fiancée’s pregnancy in 2009, Roberts chimed in, “So he was excited by it; he just didn’t want to take any responsibility.”

That was one of the arguments presented by Lisa Blatt, the Capobiancos’ lawyer, who said the law was meant to keep Native American families together — not to create families from biological parents after the fact. She argued that the law is racially discriminatory — in effect banning adoptions of American Indian children by anyone who’s not American Indian.

Perhaps sensing that a majority on the court was leaning against her, Blatt concluded by saying, “You’re basically relegating the child … to a piece of property with a sign that says, ‘Indian. Keep off. Do not disturb.'”

It was not clear how the court will decide the case, most likely by June. Justice Stephen Breyer did not appear as convinced as his three liberal colleagues that the law should be upheld.

By favoring biology over custody and support, he said, the law could turn children over to rapists or sperm donors — a specter he said he found “disturbing, as a person and also as a judge.” [Oh please!]

It also wasn’t clear where Justice Anthony Kennedy would end up. Earlier Tuesday, he showed once again why he’s the key to more court rulings than any of his colleagues, joining a 5-4 liberal majority on one ruling and a 5-4 conservative majority on another.

“These considerations are why domestic relations pose the hardest problems for judges,” Kennedy said. “Our domestic relations judges, all by themselves every day, have these difficult problems. If we could appoint King Solomon, who was the first domestic relations judge, as special master, we could do it. But we can’t do it.””

Native American adoption case creates high court rift

[USA Today 4/17/13 by Richard Wolf]

“The couple’s lawyer Lisa Blatt called the situation “absurd” and “Kafkaesque” in arguments Tuesday before the US Supreme Court.

If the nine-judge court upholds the South Carolina decision in favor of the biological father, Blatt argued, it will in essence ban cross-racial adoption of Native American children.

Blatt said the court would be “relegating adopted parents to the back of the bus. And you’re basically relegating the child to a piece of property with a sign that says, ‘Indian, keep off. Do not disturb.'”

But the biological father got a boost from odd judicial couple formed by conservative judge Antonin Scalia and liberal colleague Sonia Sotomayor.

“He’s the father,” said Scalia, who has nine children.

“If the father’s fit, why do you think that the federal statute requires that it be given to a stranger rather than to the biological father?”, said Sotomayor, who has no children.”

Native American adoption case reaches US top court

[AFP 4/17/13 by Chantal Valery]

“One outcome that seemed to have some appeal would be for the justices to order South Carolina courts to consider the case anew, with more of an emphasis on the best interests of the child. Paul Clement, representing a guardian appointed by the state to look out for Veronica, suggested such an approach.

“From the child’s perspective, the child really doesn’t care whose fault it was when they were brought in one custodial situation or another. They just want a determination that focuses on at the relevant time, that time, what’s in their best interest,” Clement said.

An evaluation of the child’s interest could well leave Veronica with her father, said Justice Ruth Bader Ginsburg. “Now the child has been some 15 months with the father. So if a best-interest calculus is made now, you would have to take into account uprooting that relationship, would you not?” she asked.

Clement agreed. “We’re not here to try to say that anybody is entitled to automatic custody of this child based on some legal rule,” he said.”

High court wrestles with Indian adoption dispute

[US News 4/17/13 by Associated Press/Mark Sherman]

The Daily Mail article indicates that Veronica doesn’t even recognize the Capobiancos anymore.
“Meanwhile Brown claims his daughter no longer even recognizes the family who raised her for the first two years of her life. She was handed over to him on New Year’s Eve 2011 and he says the bonding process was instantaneous.

Brown claims Veronica had started to call him ‘Daddy’ within minutes of them meeting and a week after moving to his home in Nowata, Oklahoma, she had also started to call his wife Robin Brown ‘Mommy’.

Sixteen months later, Brown says that he and his wife are ‘the only family she has ever know.’

‘I know that I’m doing just fine raising my daughter and supporting my wife,’ he told Tulsa World. ‘I’m always going to be her Daddy, no matter what.’

Brown also revealed that the Capobiancos have sent gifts to Veronica with their photos hidden inside.

‘When she finds them,’ he said, ‘she’ll always ask us, “Who are these people?” She doesn’t remember.’

In January the Capobiancos claimed that they have had just one phone call with Veronica since she left in December 2011 and that they told her they love her.

‘We remain hopeful that our daughter will finally be able to come home and to have a life where she can be surrounded by everyone who loves her,’ they said in a statement.”

Man’s Native American roots offer exemption in adoption laws and let him take back daughter from adoptive family

[Daily Mail 4/16/13 by David McCormack and Associated Press]

TurtleTalk blog has some great references to ICWA. See the post here.

Native News Network is also following the case here.

Update 19: Of course the NCFA also support the Capobiancos.

“The National Council for Adoption and the American Association of Adoption Attorneys are among the groups supporting the South Carolina couple.”

High court wrestles with Indian adoption dispute

[Boston Herald 4/16/13 by Associated Press]

Excellent commentary at The Ugly Side of the Adoption Industry  [Indian Country Today Media Network 4/16/13 by John Echohawk, Jacqueline Pata and Terry Cross], pasted below:

On Tuesday the Supreme Court will hear arguments in the case of Adoptive Couple v. Baby Girl. The facts of the case are straightforward: A South Carolina couple is seeking to force Dusten Brown, an Iraq war veteran and member of the Cherokee Tribe, to give his daughter Veronica up for adoption. Brown, who is now raising Veronica at his home in Oklahoma, has prevailed so far in every court that has considered this matter, including after a full, four-day trial by the South Carolina Family Court and in a decision by the South Carolina Supreme Court.

Poke beneath the basic facts, though, and you will find the ugly underbelly of the American adoption business. All across this country—but especially in states that are home to multiple Native American Tribes—unethical adoption attorneys are purposely circumventing the federal law that is meant to protect Native American children. Even worse are the continuing attempts by some adoption lawyers to take advantage of active duty service members in the process of being deployed to combat, or in active deployments.

Brown’s case is a sad example of both of these disturbing trends. At its very heart, this case is about a father’s deep desire to raise his daughter, named Veronica. Veronica’s mother and Brown were engaged when she was conceived, but her mother broke off the engagement while Brown was serving in the Army and stationed at Fort Sill, Okla. Unbeknownst to Brown, his fiancé began the process of placing her child up for adoption.

In the final months of pregnancy, the mother cut off all communication with Brown and worked closely with an agency and attorney to place the child with a non-Indian couple from South Carolina, the Capobiancos. Brown was not informed of Veronica’s birth on September 15, 2009. Instead, Veronica was placed with the Capobiancos three days after her birth in Oklahoma, and they relocated her to South Carolina shortly thereafter.

Four months later, the day before Brown’s scheduled deployment to Iraq, the couple’s lawyer (who was also the lawyer for the adoption agency) finally served Brown with notice of their intent to adopt Veronica. The notice was served to Brown in the parking lot of a mall.

Immediately, Brown went to court to request a stay of the adoption until after his deployment (which, because of his military status, is provided for by federal law). He also began the legal steps to establish paternity and gain custody. He was then deployed to Iraq. Because the Capobiancos waited until just days before Brown was deployed, the adoption hearing was not completed until he returned home.

At this hearing, the South Carolina Family Court denied the Capobiancos’ petition to adopt and ordered Veronica’s transfer to her father. The court found that federal Indian Child Welfare Act (ICWA) applied in this case, that Brown had acknowledged and established paternity, and that an exception to ICWA called the “Existing Indian Family Exception” (EIFE) was inapplicable. Most decisively, it found that Brown had not voluntarily consented to the termination of his parental rights or the adoption.

The Capobiancos appealed to the South Carolina Court of Appeals to stay the transfer of custody, where they lost. They then appealed to the South Carolina Supreme Court, which upheld the family court’s decision. Last October, they asked the U.S. Supreme Court to review the case. In early January, the U.S. Supreme Court accepted review.

The tragedy of this case is the failure of some of the adoption lawyers involved in that process – failures that have caused great heartache for all of the families involved. Had the adoption lawyers done their jobs from the start, the child would never have left Oklahoma.

The adoption lawyers knew from the outset that the father was Native American and that, once he learned of their plans, he intended to fight them to be able to raise his daughter. The adoption lawyers also knew from the start that ICWA would protect the rights of the father and the child.

Nonetheless, the lawyers forged ahead, ignoring the law, providing inaccurate information to Oklahoma authorities, and removing the child from the Cherokee Nation prematurely.

Brown’s cause is supported in briefs filed with the Supreme Court by U.S. Solicitor General Donald Verrilli on behalf of the United States of America, 19 state attorneys general, current and former members of Congress, and a wide array of other groups. Many of the briefs highlight the findings of the South Carolina Family Court, which found that “the birth father is a fit and proper person to have custody of his child” who “has convinced [the Court] of his unwavering love for this child”; these findings upheld by the South Carolina Supreme Court.

Unfortunately, though, Brown’s case is not unique, and other fathers in his position—particularly those serving in the military—are not able to battle the adoption system in the way he has. It is time for the Congress to hold hearings and expose for all to see the tactics of lawyers who are continuing to evade the federal law designed to protect Native American families.”

 Update 20: Multi-Part Series from Indian Country Today Media Network’s Suzette Brewer

Part 1: The Fight for Baby Veronica, Part I [May 6, 2013] says ”

It is dinner time at the Brown home in Oklahoma. As dusk settles over the horizon, ground venison sizzles in a skillet on the stove as Veronica Brown and her father, Dusten, feed two pet geese in the backyard. Two small dogs trail behind, climbing over each other to stay with the little girl. A joyful bundle of dimples and curly dark hair, Veronica Brown is the master and commander of her backyard empire.

“Here is their swimming pool. It has sharks in it,” she points authoritatively to the cartoon sharks on the bottom. “But they drink out of it.”

In a remarkable act of equanimity, one of the geese allows her to pick him up and put him in the water. She strokes his head and gives him some more pellets from her hand. Not to be outdone, the other goose jumps in the small pool and tries to horn in on the food.

“She knows her own mind,” says her father proudly. “She knows exactly what she thinks, and she won’t hesitate to tell you.”

Shortly after, Brown’s wife, Robin, comes out to the family’s deep freezer and grabs an armful of more frozen venison. She is still dressed in her scrubs from a long day at nursing school. Brown has taken the day off from his construction job to work on the house and run errands.

Their home is modest but immaculate and it is clear that the Brown’s take great pride in keeping it up. They have painted and restored most of the interior, but have taken a break—for the time being.

“Every time we go to Home Depot, we come out with three more projects,” says Brown, smiling wearily. “We had to stop because it’s always something.”

This much is clear: If one did not know that this small family was at the center of one of the most important Indian law cases in the last 30 years, the Browns would seem like any other family at 6 o’clock in America. Two tired parents, a three-year-old with endless energy, dinner on the stove, dogs yapping, geese squawking and a house in the middle of remodeling. In military-speak, they are squared away.

But underneath the normalcy, Dusten Brown is fully aware of the enormous implications—both personally and tribally—for the blandly named Adoptive Couple v. Baby Girl now under review by the Supreme Court.

“It’s always in the back of my mind,” says Brown, an Iraq War veteran who is still enlisted in the National Guard. “But I just go through every day being a parent, just acting like it’s not going on.”

To summarize, after Brown asked ex-fiancee Christine Maldonado to marry him, she became pregnant. Shortly there after, she broke off the engagement and contact with Brown and quietly put the couple’s child up for adoption without notifiying him of her intentions—which ultimately pitted Dusten Brown against the pre-adoptive parents, Matt and Melanie Capobianco, and the Capobianco’s adoption lawyers, who apparently were not prepared for the fact that Brown turned out to be a tougher customer than they expected.

This story, however, did not begin with Maldonado’s pregnancy. Brown and Maldonado have known each other nearly 14 years, having met as 16-year-olds in high school. As classmates in Bartlesville’s alternative education program, they dated off and on for nearly 11 years. During that time, Brown and Maldonado had both married and divorced other people. Maldonado had two children by her first marriage, Brown had a daughter from his.

Sometime in the late 2000s, they began dating again and Brown decided to propose to Maldonado, and she accepted. By December of 2009, she was pregnant. Soon after, she sent him a text message telling him she wanted to break up.

“It was all text messages,” he said, “because she didn’t want to talk to me.”

Brown said he did not understand why she wanted to break up and that she was not clear in her reasons. But because they had dated off and on for so long, he said, “I just thought we could repair our relationship and get back together. We had done that a lot, so I thought we could do it again.”

Instead, she texted Brown asking him to sign his “rights” over to her. Initially, Brown said he was under the impression that she simply wanted full custody. At no time, he said, did she ever mention that she was thinking of giving their child up for adoption. He is adamant that had he known what her plans were, he would’ve acted on the spot.

“I thought she wanted full custody, but that I would still be a part of my child’s life,” he said. “I was going to war. I didn’t know what was going to happen in Iraq, or even if I was going to come back home alive. So I texted her back and said okay.”

Thinking that Maldonado needed time, Brown said he sent the text message and gave Maldonado her space. In his mind, they were simply in another “off” period, yet he remained hopeful that they would eventually work things out.

This was not to be. Four months after Veronica’s birth, and six days before Brown was scheduled to deploy for Iraq, he received a message from Maldonado’s lawyer that he needed to come to Bartlesville, Okla., to sign “some paperwork.” Because he was leaving the country, he was in “lock down” at his Army base in Ft. Sill and was told he would not be allowed to make the five hour trip to sign the paperwork. After some wrangling with his superiors and the lawyers, he was given permission only to leave base and go to nearby Lawton to visit a local process server.

It was from the process server that Brown finally learned the whole truth: That  his daughter had been born four months earlier; that Maldonado had not only signed her own rights away, but had also put the girl up for adoption, something to which he did not, nor would ever agree; and that the child had also been living in South Carolina for four months with people he considered strangers.

“It was like somebody stabbed me in the heart,” said Brown. “She’s a good mother to her other two children, so it was shocking to me that she would just give our child away. As far as I’m concerned, she sold her child. But if she wasn’t going to raise [Veronica], then I definitely wanted her.”

To Brown, it was clear that Maldonado, the Capobiancos and their lawyers had timed their legal ambush before his deployment in the hopes that Brown would simply fold and walk away. They were all, he said, mistaken. “That was never going to happen.”

“I went straight to the Judge Advocate General on base,” he said. “And they got me a lawyers in Bartlesville and South Carolina.”

In the meantime, Brown assigned power of attorney to his father and had his lawyers ask for a stay of adoption until his deployment in Iraq was over, which was granted. During that time, it became evident that Brown’s rights as a tribal member and due process had not been followed, according to court documents. In their rush to push the adoption through under the radar, Maldonado, the Capobiancos and their attorneys had colluded to strip Brown of his parental rights outside the purview of the Indian Child Welfare Act.

Instead of a legal termination hearing, as is provided for under the law even in non-ICWA cases, the plaintiffs zeroed in on that fateful text message. This became the focal point of the subsequent legal battle with the Capobiancos, who had spent a lot of money on the adoption, even giving Maldonado $10,000, over and above her medical expenses, according to court testimony. Their message to the world was clear: “He gave up his rights. He abandoned his daughter. He is a ‘bad dad.’”

But as in most custody battles, things are not always as they seem.””

Part 2:  The Fight for Baby Veronica, Part 2 [May 13, 2013] says “ The Devil’s in the Details

August 21, 2009

“My office is working with a South Carolina attorney in the interstate placement of a baby to be born sometime in mid-September. The baby’s mother believes she is part-Cherokee, and the baby’s father is supposedly enrolled with the Cherokee Nation.

…The birth father is: Dustin [sic] Dale Brown

(1/8 Cherokee, supposedly enrolled)

DOB:XX, XX, 1983 [sic]

Born and raised in Oklahoma,

Presently in the army at Ft. Sill, Oklahoma

…the birth mother chose [the Capobiancos] to adopt her baby and has been working with them for the past four to five months…and she believes the father has no objection…Could you let me know whether you would object to this adoption by a non-Indian family—and whether the birth mother, Christy, is eligible for a CDIB Card?” – Letter from Tulsa attorney Phyllis Zimmerman to Myra Reed, Cherokee Nation Indian Child Welfare Division

Dusten Brown was at his wit’s end. His parents, Tommy and Alice Brown, who had also known Maldonado for years, were desperately worried and equally puzzled by her stonewalling and silence. So, in the summer of 2009, with a pregnant ex-fiancee refusing to speak or communicate with him in any way, he drove to her home in Bartlesville, Okla., in an attempt to see how she was doing and give her some money to help with the baby. But Maldonado, having already promised her unborn child to Matt and Melanie Capobianco of Charleston, S.C., refused to cooperate.

“She wouldn’t even answer the door,” said Brown. “I could hear voices in the house and her car was there. I knew she was home, and she knew I was there. But I didn’t want to make a big scene, so I left.”

In hindsight, Brown said that Maldonado’s actions at that time were most likely a strategy to make it appear as though he had “abandoned her and the baby.” A charge which he flatly denies.

“That’s absolutely not true,” said Brown. “I did not ‘abandon’ her and I would never abandon my child. I tried everything I could to contact her. I texted her, I tried to call her, I even went to her house, I tried to give her money, my parents tried to contact her, they wanted to help her, but she made it clear that she didn’t want to see me and she made it impossible for me to talk to her. Finally, I just let her have her space. But I had no idea that she was going to pull a stunt like [giving Veronica up for adoption].”

By that point in time, however, the wheels to place Veronica for adoption without his knowledge or consent were already in motion. Major decisions had already been made, papers had been signed, lots of money had exchanged hands—including a handsome 10,000 fee from the Capobiancos to Maldonado to help with her “expenses”—while attorneys for both the birth mother and the pre-adoptive couple had started the legal process. All of these activities were in violation of specific requirements of the Indian Child Welfare Act, not to mention completely ignoring the fact that Dusten Brown had no idea what was happening to his child, or that he might object and want to raise the child himself. It was a miscalculation with enormous consequences.

What is certainly clear, however, is that all of the parties involved for the plaintiffs, including the birth mother, the Capobiancos, the adoption agency and all of the counsel, were fully aware that Brown was “supposedly part-Cherokee,” and that being a member of a federally-recognized tribe matters a great deal in the U.S. adoption industry—hence the proactive letter from Zimmerman to the Cherokee Nation before Veronica was even born. Apparently, it mattered enough to Maldonado that, according to the letter to the tribe’s ICWA office, she was also inquiring about securing her own Certificate of Degree of Indian Blood (CDIB) card, presumably in the hope that it would nullify Brown’s potential enforcement of ICWA. Under federal law, it would not have made any difference.

In fact, according to tribal lawyers, had Maldonado been successful in her 11^th hour attempt to seek tribal membership a month before Veronica’s birth, it would have automatically guaranteed the intervention of the Cherokee Nation into the adoption proceedings. Had that been the outcome, perhaps this case might have been settled a long time ago, without the enormous amount of heartache and legal fees incurred by all the parties involved. But that didn’t happen.

Facts Are Stubborn Things

From the outset, the case of Adoptive Couple v. Baby Girl has been rife with errors: Errors in spelling, incorrect dates, bad judgment, and finally, errors in execution. Whether by prevaricated fabrication, purposeful obfuscation or the result of a simple incompetence, the crucial mistakes made in the very beginning and thereafter proved pivotal to the subsequent battle between the Capobiancos and Dusten Brown.

Exhibit A: According to the letter from Phyllis Zimmerman, not only was Brown’s first name misspelled, but his birth date and birth year were also incorrect.

Why does this matter?

“We have over 310,000 tribal members,” said Chrissi Nimmo, assistant attorney general for the Cherokee Nation, who heads the ICWA division. “We have eight tribal members who are named ‘Dustin Brown’ who were all born in 1983. Dusten Brown, with an “e” was born in 1981. Ms. Zimmerman’s letter was the only information presented to us and under state and federal law, we have to follow what’s in the letter. And based on what she provided us, which was incorrect, we responded to that effect.”

September 3, 2009

“Please be advised that the Indian Child Welfare Program has examined the tribal records and the above named child/children cannot be traced in our tribal records …

This determination is based on the above listed information exactly as provided by you. Any incorrect or omitted family documentation could invalidate this determination. (Emphasis added)” – Letter from Myra Reed, Cherokee Nation ICWA office.

It was that final sentence that set the stage for the legal showdown for Veronica. The aforementioned “Dustin Brown, 1983” did not exist.

But, Dusten Brown, born in 1981, did exist. And things were about to get ugly.

“The birth mother knew I was Cherokee, she knew I was a tribal member, she knew my birth date and she knew how to spell my name,” said Brown matter-of-factly. “Look, we’ve known each other since we were 16. We were engaged. She absolutely knew all of my vital information. And she gave [the attorney and the tribe] the wrong information [hoping to keep the adoption secret].”

On January 6, 2010, four months after Veronica’s birth, Brown received notice to terminate his parental rights from a process service in Lawton, Okla. Brown was now aware that he had a daughter, that she had been adopted without his knowledge or consent, and that she was living with a pre-adoptive placement couple in South Carolina. To add insult to injury, Brown was never even notified when the girl was born.

Neither did he approve, he said, nor would he have ever given his daughter up for adoption. Finally, he said, it became clear why Maldonado had kept quiet and had refused to see or talk to him during her pregnancy. According to court testimony, Maldonado had planned to give her child up to the Capobiancos for at least six months before Veronica’s birth.

Devastated and angry, Brown immediately drove back to Ft. Sill and consulted the Judge Advocate General, who helped secure legal representation in both Bartlesville and South Carolina. Shortly thereafter, a Stay of Proceedings, provided for under the Servicemembers Civil Relief Act, was executed by his legal team and granted by a family court judge in South Carolina until Brown returned from his deployment in Iraq. Soon after, Brown was advised of his rights under the Indian Child Welfare Act and his attorneys contacted the tribe again. This time, he was verified as a tribal member by the tribe’s enrollment office.

On March 30, 2010, the Cherokee Nation, per the previous caveat regarding “incorrect or omitted family documentation” in the tribe’s response to Zimmerman’s letter, reversed its position and filed a Notice of Intervention in Adoptive Couple v. Baby M, asserting its sovereign right “to Intervene at any point in a state court proceeding, termination of parental rights or adoption to an Indian child so that it may exercise all its rights…”

Meanwhile, the Capobianco’s attorney, Raymond Godwin, filed suit against Brown in South Carolina Family Court for them to retain custody of the baby girl who had come to be known as Veronica. In his voluminously worded amended complaint, Godwin told the court that the plaintiffs had “received assurance from the Cherokee Nation that… the child would not be considered an Indian.” In fact, not only did the tribe not “assure” the plaintiffs that Veronica would not be considered an Indian, they made sure to include the admonition that they had every right to intervene should the information change.

Additionally, it outlines the following: That the birth mother had received no assistance from the father during the six months proceeding placement; that the plaintiffs did not give any compensation to Maldonado; and the piece de resistance: “…the Birth Father of the minor child has no standing to contest this adoption.”

None of which is completely true. The Capobianco’s complaint blindly ignores the following facts: That the Indian Child Welfare Act is applicable state and federal law and that Dusten and Veronica Brown are both entitled to protection under the law; that the Capobiancos did, in fact, give copy0,000 given to Maldonado, in addition to her birth expenses; that Dusten Brown, did try to contact Maldonado, but she had willfully cut him off because she had already begun the adoption process without his knowledge or consent, thereby making it impossible for him to be involved with his child; and finally, as the biological father of Veronica, Dusten Brown, has every right to contest her adoption under state and federal law.”
Part 3: The Fight for Baby Veronica, Part 3 [June 4, 2013] says “In 2010, after Brown had been served notice of termination and adoption, his original lawyer, Lesley Sasser, asked a Charleston, South Carolina–based family court attorney named Shannon Jones to join Brown’s legal team. Although Jones is an expert in interstate custody disputes under the Uniform Child Custody Jurisdiction Enforcement Act, she did not expect to become involved in an adoption struggle over an Indian child from Oklahoma.

“Lesley came to my office one day and said, ‘I’ve got this case that’s coming up for trial, and it could be kind of complex,’ ” said Jones, laughing at the understatement. “She said it involved the Indian Child Welfare Act. Honestly, at first I didn’t even know what it was. I’d never heard of it.”

Jones’s learning curve was steep and rapid. Early on, she realized that the Indian Child Welfare Act would be a brick wall for the Capobiancos in the contested adoption of Baby Veronica, whom the courts considered an Indian child. By this time, too, it was clear that the Capobiancos, the preadoptive parents, were prepared to pursue termination of Brown’s parental rights to maintain custody of the little girl.

But Brown, equally dead set on getting his daughter back, refused to back down. From the beginning, he had been marginalized and pushed out of his child’s life, and he was not interested in pursuing a settlement, he said.

“He never, ever wavered in his commitment to this case,” said Jones. “Anything short of full custody was not an option. I asked him at one point if he wanted to settle [with the Capobiancos] and maybe go for visitation, and he looked me straight in the eye and said, ‘No.’ And that was that. End of discussion.”

In June 2010, the state of Oklahoma declined jurisdiction, declaring South Carolina as Veronica’s home state. By the time Brown returned from Iraq that December, his daughter was already 15 months old and the case was beginning to gain momentum in the courts.

In initial proceedings in Charleston, Family Court Judge for the Ninth Judicial Circuit Paul Garfinkel ruled in Brown’s favor in July 2011. He found that although the terms of the Indian Child Welfare Act had not been followed in the case, they did indeed apply.

But the Capobiancos, who had been working with Maldonado virtually since she learned she was pregnant, had spent tens of thousands of dollars trying to adopt Veronica, and they were too invested in the situation to let go. So they took their fight to the next legal level.

Judge Deborah Malphrus, who heard arguments in South Carolina’s Ninth Judicial Circuit Court, issued a verbal courtroom ruling in favor of Brown on November 25, 2011. Soon, according to multiple sources in South Carolina, she was “inappropriately contacted” by numerous parties who asked her outright to change her written ruling in favor of the Capobiancos. Far from listening to their requests, Malphrus subsequently issued a 25-page ruling that reiterated the family court findings and transferred custody to Brown.

After a last-ditch attempt by the Capobiancos to stay the transfer was denied, Brown and his parents went to South Carolina in late December 2011 to bring Veronica back to Oklahoma. But rather than relinquish custody of Veronica privately at a local park, as had been the original plan, the Capobiancos took their case public via their newly hired public relations firm, Trio Solutions. What should have been a peaceful, happy transition for the child turned dangerous and bitter in the ensuing chaos surrounding the handoff.

Shannon Jones knew trouble was coming. On New Year’s Eve morning 2011, she woke early to prepare for Veronica’s transfer to Brown. She and her client had already given the Capobiancos an extra day to spend with the girl, and she was looking forward to concluding the case and spending New Year’s Eve with her young family. But the plan collapsed as she drove to the park at which all parties had agreed to meet for the handoff.

“I get this call from Jo Prowell, the guardian ad litem, who had no business being at that transfer,” said Jones, “and she says, ‘I think we need to have the exchange downtown at the Omni hotel,’ and I knew right then something wasn’t right, but I trusted that [the Capobiancos and their team] would keep it low key.”
Minutes later, Jones received a call from her associate, Wyatt Wimberly, who had already arrived at the hotel.

“It’s a madhouse down here,” Wimberly told her. “They’ve brought camera crews with them, and there are reporters everywhere.”

Jones called for a police escort and told Brown and his parents to stay put at her office. When Jones arrived at the hotel, the Capobiancos’ attorney, Raymond Godwin, was already being interviewed on camera by local news outlets, which were waiting to capitalize on the handoff. It was immediately clear that there was a coordinated effort to make Veronica’s transfer a media event.

Wimberly asked the hotel’s security team to move the media crews and reporters outside as tourists, spectators and protestors with signs started to gather. As the crowd began to realize what was happening, things turned ugly. People began harassing and heckling Jones with insults and name-calling.

“You could feel the animosity in the air,” Jones recalled. “Ray Godwin walked up to me in front of everyone and said, ‘I’m not giving you the child. The court order says I’m to give the child to the father.’ I told him no way, not in front of the cameras. We had discussed at great length how this should happen and this was absolutely not a safe environment for the transfer of a young child—anything could have happened. It was a circus, and I was shocked that they would insist that we handle this in public just so they could get a photo op.”

Jones then told Godwin that the transfer would take place at her office with no media present. Meanwhile, Brown was anxiously waiting at Jones’s office to see his daughter face-to-face for the first time since she was born. Up until that day, he was only allowed to see photos of her.

“It was a madhouse,” said Brown. “We had discussed a ‘neutral’ location, but somehow I knew the adoptive parents weren’t going to play ball. My parents and I were upstairs in Shannon’s second-story office, and we looked out the window [and] here they come down the sidewalk with my daughter and a mob of people, there were camera crews, people taking pictures with their cell phones, some were even carrying signs and there was shouting and yelling. I was pretty upset, because Veronica was forced to be in the middle of all that.”

But Brown, an Iraq War veteran, had been trained to maintain his composure in difficult situations. So he made a decision on the spot.

“We waited them out,” he said. “After Veronica was brought upstairs, we spoke to the adoptive couple and said our good-byes. But I was not going to give them a chance to exploit her for the cameras. No photographers, no reporters, no media, no nothing.”

Despite the riotous, staged nature of the handoff, relations between Brown and the Capobiancos were amiable, at least initially. Brown, sensitive to the adoptive couple’s obvious grief, said he gave them his phone number and told them they could call Veronica to stay in contact with her. He asked only that they wait a few weeks for things to settle down at her new home in Oklahoma. After an emotional farewell, the Capobiancos left as Brown and his daughter sat in Jones’s office for several hours, coloring, looking outside at the birds, and waiting for the public and the media to leave. From the beginning, Veronica immediately bonded with her father.

“It was instantaneous,” said Jones. “That little girl climbed right in her father’s lap and never cried a tear. There was never an uncomfortable moment between the two of them.”

As the last stragglers on the street drifted away, Wimberly drove the Browns’ vehicle around to the back of the office building so that their departure could be made quietly and without incident. But as they exited the door, a lone television camera crew spotted them and came running toward the Browns’ vehicle.

“Shannon Jones is tiny,” says Brown, smiling, “but she got right between the cameras and us and told them to go away. She’s tough.”

With the chaos of the transfer finally behind him, Brown and his parents put the car in drive and didn’t look back.

“We drove 22 hours straight without stopping from South Carolina,” says Brown. “We just wanted to get back home to Oklahoma.”

As soon as the Browns pulled into the driveway, however, things began to sour between the two families. With their public relations machine already in full swing, the Capobiancos made an appearance on CNN. It was the first of many media appearances and social networking schemes to gather support for the coming legal storm that would engulf everything in its path.”

Update 21:Part 4 of The Fight for Baby Veronica Series has been published. See it here and pasted below:

“Chrissi Nimmo had taken a few days off. It was New Year’s Eve 2011, and she and her husband were on a camping trip at Cedar Lake in the Quachita National Forest in southeastern Oklahoma. They had been horseback riding that day and were ringing in the New Year around the campfire with his family when her cell phone started ringing.

Nimmo, assistant attorney general for the Cherokee Nation, thought it was strange that she was able to receive calls in a place that is notoriously void of cell service. She didn’t recognize the phone number, but she answered anyway, thinking it may be important. In fact, it was life-changing.

It was a reporter from South Carolina. The very public transfer of custody involving Baby Veronica to her father was happening that very moment in downtown Charleston—did Ms. Nimmo wish to comment on behalf of the Cherokee Nation?

“Of course I wasn’t going to comment,” says Nimmo. “We don’t comment on confidential juvenile matters, which is what this should have been. But the other side was already out there on television with names, facts and identifying information that was clearly under seal by Judge Garfinkel. But there they were, the Capobiancos, their attorney and the guardian ad litem, all parading this child around the streets of Charleston in front of the cameras. It was, to say the very least, unethical and appalling.”

Nimmo hung up and immediately called the tribe’s then-attorney general, Diane Hammons, to give her boss the heads up in the event that any reporters tried to contact the tribe. Based on the Capobianco’s denied attempt at a stay of transfer until they could file another appeal, Nimmo knew that it was just a matter of time before the case would be back in appellate court.

“We knew when the hand-off happened that they were going to appeal [to the South Carolina Supreme Court],” says Nimmo. “So from that point on, we were focused on two things: Upholding the Indian Child Welfare Act and preparing for the South Carolina Supreme Court.”

Two days later, Nimmo went back to work with no time to waste. For the next four months, Nimmo put in 18-hour days gathering records, going through case files, reading case law, reviewing potential arguments, and collaborating with the appellate attorneys for Brown in South Carolina. She also worked around the clock coordinating the legal and media strategy with national Indian organizations, states’ attorneys general and a growing number of Indian tribes, all of whom had been cautiously watching the case, but were now on red alert for the upcoming legal showdown.

One of those observers was Terry Cross, executive director of the Portland, Oregon-based National Indian Child Welfare Association, who monitored the ongoing dispute with growing unease.

“We try to watch cases where we know it may become contentious and we try to help, but this case just spun out of control,” says Cross. “Look, every adoptive family knows that anything could go wrong at any time in the adoptive process and that it could fall through. But after losing in the lower courts, the first thing this family did was hire a PR firm and start talking to the media about things they know they were not supposed to talk about. That does not portend a happy ending.”

Back in South Carolina, John Nichols, a Columbia-based appellate attorney, had been already been working with Shannon Jones on legal strategy for Adoptive Couple for several months. As of January 2012, however, he was now taking the lead on the subsequent state supreme court hearing.

“This case has taken a track like no other case I’ve ever seen in all my years as an attorney,” says Nichols. “This was expedited before the Supreme Court of South Carolina in just four months, which is record time under any circumstance, but especially for one of this nature.”

Operating under new administrative rules established by the South Carolina Supreme Court in cases where parental rights are being terminated, both sides were required to submit all briefs and responses within a mandatory 30-day filing period, with no extensions granted. The court set April 17, 2012 for the hearing.

In the meantime, growing increasingly frustrated by the Capobianco’s continued media presence, Nichols filed a motion to put a stop to their activities. On their behalf, Trio Solutions, had launched an ugly media campaign designed, said Nichols, to eviscerate his client and undermine the rights of all Indian parents under ICWA. In addition to violating the law and codes of ethics, he says, they displayed a stunning lack of regard for the child at the center of the case by denigrating her father in front of the world. Though the court stopped short of issuing a gag order, the justices did issue a warning: Juvenile cases are sealed under South Carolina state statute and are not open to public discourse.

“The Capobiancos, their lawyers and their PR team broke the law,” says Nichols matter-of-factly. “There is no question that the statute is very clear on these matters. But I at least wanted to send a message that we were not going to tolerate them violating the law on a sealed juvenile case that should have been kept confidential.”

Nichols said that the court’s admonition did seem to slow the firehose of media stories—for a short time. But what did not stop was the marketing and selling of the Capobianco’s side of the story, using Veronica’s name and likeness on a variety of social media to seek attention, support and financial donations to pay their legal fees in their fight to terminate Dusten Brown’s parental rights and retain custody of Veronica.

“Save Veronica” became the clarion call of the Capobiancos’ media strategy. Starting with a website and a Facebook page, they posted regular, emotionally-charged status updates and pleas for money via a “donation” link. Additionally, bracelets, perfume, magnets, artwork and various other trinkets were sold to finance their PR firm and legal defense fund—all the while ginning up public outrage bordering on frenzy toward not only Dusten Brown, but the entire foundation of the Indian Child Welfare Act.

Meanwhile, Dusten Brown kept quiet and stayed focused on building his life after returning from Iraq. But he did not like the way the Capobianco’s portrayed him in the media, especially after he allowed them to maintain contact with Veronica after the transfer. In particular, as a parent, it was the unauthorized use of his daughter’s name and likeness to build their case against her own father that hurt the most.

“They plastered her name and face all over the Internet asking for handouts,” says Brown evenly. “I never once asked for a penny from anyone, I never said a bad word about them or the birth mother. But I’ve told my lawyers that I want all those websites and Facebook pages shut down. I do not want them using her that way. If they really love her like they say they do, they wouldn’t do that to her.” [AMEN!]

From the beginning, the insidious undertones of class and race in their messaging was clear: The Capobiancos are a well-to-do couple who can afford expensive vacations and private schools for Veronica; Dusten Brown is in the Army. The Capobiancos are both highly educated—Melanie Capobianco, in fact, holds a Ph.D in child developmental psychology (more on that later); Dusten Brown went to Vo-tech. The Capobiancos are white; but Dusten Brown, they argued fiercely—is not “Indian enough” for federal law to apply to them in disrupting their adoption plans.

Therein lies the central question hovering over this case. The legal concept of who is an “Indian” and what constitutes tribal membership has plagued and confounded many in Indian Affairs for centuries. But, regardless of countless attempts to reinterpret, circumvent and override tribal sovereignty regarding their membership, the law is unmistakably clear on the matter, according to Richard Guest, staff attorney and director of the Tribal Supreme Court Project for the Native American Rights Fund.

“As a matter of law, tribes determine their own membership,” says Guest. “Membership is based on a number of factors. Some tribes go by the Census, some go by blood quantum, but some, like the Cherokee Nation, base theirs on the Dawes Rolls—and they are within their rights to do so. Many tribes are now confronted with these issues and are changing their requirements to reflect these complexities, because some people may belong to one tribe, but may be full-blood from several different tribes through their grandparents. One person may appear white or black, but have been raised in the community, speaking the language. Others may be from urban areas and have never seen their homeland, but they’re still tribal members. There are also many marriages between people from different tribes, but their children can only be enrolled in one tribe. It’s a very complex process, especially for the courts.”

One thing is clear, says Guest. Though at first glance Adoptive Couple v. Baby Girl is a failed adoption, it carries with it a powerful subterranean threat to the very existence of tribal life in America.

“The Cherokee Nation is a federally-recognized tribe and Dusten Brown is an enrolled member of that tribe. And in the case of Baby Veronica, the terms of the Indian Child Welfare Act are absolutely clear: She is eligible, therefore ICWA applies. To determine otherwise could have far-reaching implications for all Indian matters. The real issue is: Who gets to say who’s an Indian?”

On April 17, 2012, Adoptive Couple v. Baby Girl was argued before the South Carolina Supreme Court. By this time, the case has long since blown any semblance of confidentiality and had become high conflict because of the steady diet of media assaults on Dusten Brown, ICWA and Indian tribes in general.

Because of potential security issues, the Court took the unusual step of closing the courthouse to the general public. Only the parties, their attorneys and essential personnel were allowed into the hearing. Both sides were taken into and out of separate entrances and elevators by police escort and were not allowed even to pass each other in the hallways. Relations between the two families had soured to the point where they had to be sequestered in separate chambers before the arguments.

Outside the courthouse, protesters for the Capobiancos had gathered and were going full force with signs and banners beseeching the South Carolina Supreme Court to “Save Veronica.” Several media outlets also covered the hearing, which had by then become national news.

Inside the courthouse, the atmosphere was tense and unyielding as the attorney for the Capobiancos, Robert Hill, argued that Brown was a deadbeat dad who did nothing to contribute to the birth mother or his child during her pregnancy. Under state law, he said, Brown therefore had not established or obtained parental rights. Because he had not established paternity or obtained parental rights, ICWA did not apply under the definitions of the act. Additionally, Hill argued that because Veronica had already been with her adoptive family, removing her from the Capobiancos would psychologically harm her. The court should find “good cause,” he said, to deviate from the Indian adoptive placement preferences outlined in ICWA and return her to the Capobiancos.

John Nichols, appellate attorney for Dusten Brown, defended his client by asserting that all along, the mother and the Capobiancos had conspired and colluded to hide this adoption and obfuscate his Indian heritage, knowing full well that he would object. Nichols pointed out that they had waited until Brown was in lock down at Ft. Sill to serve him the notice of parental termination. Brown’s immediate reaction upon hearing that his child had been adopted without his consent or approval, he said, was to seek custody. But most importantly, Nichols argued that Dusten Brown, as a tribal member, is considered a “parent” under ICWA and that Veronica is therefore by definition is “an Indian child.” These facts alone, he argued, required that the Court rule in favor of Brown.

Chrissi Nimmo, arguing on behalf of the Cherokee Nation, also told the court that they should only consider the time that Veronica was with the pre-adoptive parents from birth to four months, because it was only then that Brown learned of her situation and sought custody. Further, Nimmo asserted that gaining temporary custody of a child in violation of the law and maintaining custody throughout protracted litigation does not entitle the adoptive couple to permanent custody.

Three months later, on July 26, 2012, the South Carolina Supreme Court issued a 78-page ruling affirming the lower court rulings of Judges Garfinkel and Malphrus. In a 3-2 decision affirming Brown’s status as an Indian parent, Veronica’s status as an Indian child, the court upheld the Indian Child Welfare Act. In a stunning rebuke of the birth mother and the Capobiancos, the court wrote the following:

“Mother testified that she knew “from the beginning” that Father was a registered member of the Cherokee Nation, and that she deemed this information “important” throughout the adoption process.⁵ Further, she testified she knew that if the Cherokee Nation were alerted to Baby Girl’s status as an Indian child, “some things were going to come into effect, but [she] wasn’t for [sic] sure what.” Mother reported Father’s Indian heritage on the Nightlight Agency’s adoption form and testified she made Father’s Indian heritage known to Appellants and every agency involved in the adoption. However, it appears that there were some efforts to conceal his Indian status. In fact, the pre-placement form reflects Mother’s reluctance to share this information:

the birth mother did not wish to identify the father, said she

wanted  to keep things low-key as possible for the [Appellants],

because he’s registered in the Cherokee tribe. It was determined that

naming him would be detrimental to the adoption.”

For the first time in several years, Dusten Brown and his legal team breathed a sigh of relief. It was felt that the case had finally reached its conclusion and he and his new wife, Robin, and Veronica, could move on with their lives in Oklahoma.

But it was not to be.  On October 1, 2012, the Capobiancos, who now has the estimable Lisa Blatt of the Washington, D.C. firm of Arnold and Porter, as their lead counsel, filed a petition of certiorari with the United States Supreme Court. Three months later, on January 4, 2013, certiorari was granted in Adoptive Couple v. Baby Girl. The most important Indian law case in three decades was going before the nation’s highest court.”

Be sure to read the wailing of the owner of the Trio Solutions firm in the comments.

 Update 22/June 25, 2013

Supreme Court rules 5-4 for the Capobiancos.

Read the opinions at this 62-page pdf here. Justices Scalia, Sotomayor, Ginsburg and Kagan were the dissenters. Veronica can come here when she is older to see the travesty of justice and adoptive parent entitlement. She doesn’t even remember the Capobiancos.

Update 23/June 26, 3013

The case will be remanded back to family court in South Carolina. Dusten will fight for his right to maintain custody.

“Chrissi Nimmo, an attorney for the Cherokee Nation, which is a party in the case, said Tuesday that the tribe would argue the child’s best interests would be served by staying with her father.

“This has been a long, emotional case, and it is by no means over,” Nimmo said.

Nimmo said she expected action in the courts relatively soon and that she hoped proceedings wouldn’t drag out for years.

The adoptive parents, Matt and Melanie Capobianco, of James Island, S.C., said in a statement, “We are very happy with (the) ruling that came down today.

“The Supreme Court did everything we asked it to do. The decision … clearly establishes that our adoption should have been approved, and Veronica should never have been taken away from her home and family in the first place. We miss her very much and we are looking forward to the opportunity to see our daughter very soon.”

Supreme Court rules against Oklahoma man in Cherokee adoption case

[The Oklahoman 6/25/13 by Chris Casteel]

Update 24/July 9, 2013

Read an excellent commentary by Jacqueline Keeler on this case at Indian Child Welfare Act: Supreme Court ‘Saved Baby Veronica’ — But From What? [New America Media 6/27/13]. Here is an excerpt: “The Supreme Court in this case was not asked to look at the adoptive parents’ willful defiance of federal law in their attempts to circumvent the adoption procedures of ICWA.  The South Carolina Supreme Court had already found the Capobianco’s adoption to be invalid.  In bald terms, the invalidation of the adoption means the Capobianco’s kept a Cherokee child a thousand miles away from her biological family in Oklahoma without any legal right to do so.  The law was clear — they had to follow the adoption procedure laid out by the Indian Child Welfare Act of 1978, which was passed by Congress to prevent the wholesale removal of Indian children from their families and their tribes.

Instead, Justice Samuel Alito, writing for the majority of the court, repeatedly made comments about the child’s blood quantum, a factor that had no bearing on the case because Veronica’s eligibility for citizenship is determined by the Cherokee Nation, which is a sovereign nation.  The implication is that this was an issue of racial identity. Yet, as Justice Sonia Sotomayor pointed out in her dissent, it is the Federal government that requires blood quantum, not tribes.  Historically, Native nations had naturalization processes that were just like those of other nations worldwide.

No, Justice Alito’s dismissive comments about Veronica’s blood quantum  were useful not as legal analysis but for undermining the true political nature of tribal citizenship.  The comment sections of news articles about the decision were filled with incredulous comments about Baby Veronica’s one percent Cherokee blood quantum, equating it with the “one drop rule” from the era of anti-miscegenation laws that barred interracial marriage. ”

Two Legal moves in Oklahoma by the Brown Family.

“Far from being settled, the Baby Veronica custody battle has only grown more complicated since the U.S. Supreme Court’s decision two weeks ago.

The court simply ruled that a certain federal law — the Indian Child Welfare Act of 1978 — should not have been used to grant custody to the biological father in Oklahoma.

That won’t necessarily send the girl back to her adoptive parents in the suburbs of Charleston, S.C., where Veronica lived for the first two years of her life.

It just means that the South Carolina Supreme Court will have to reconsider the case, with a new ruling possible any day now.

Meanwhile, the girl’s biological father and his wife, Dusten and Robin Brown, have filed adoption papers in Nowata County, where Veronica has lived with them for the last 18 months.

“Oklahoma rules provide for jurisdiction over children who reside here six months or more,” explained Jason Aamodt, assistant dean at the University of Tulsa’s law school.

“The complicating factor is that Baby Veronica came to Oklahoma under an order from the South Carolina courts.”

So it may ultimately fall to the federal courts — conceivably even the U.S. Supreme Court again — to decide which state has jurisdiction.

But it gets even more complicated.

In her dissenting opinion June 25, Justice Sonia Sotomayor noted that the girl’s grandparents or “other tribal members” could ask to adopt Veronica if the biological father ultimately loses custody.

The court wasn’t striking down the Indian Child Welfare Act, only its application to this particular case, Sotomayor wrote.

The federal law still gives preference to the extended family or to tribal members, she said.

Perhaps acting on that advice, paternal grandparents Tommy and Alice Brown have already filed for adoption in Cherokee Nation District Court, officials confirmed Tuesday.

The tribe recently granted citizenship to Veronica herself, but Cherokee courts would have jurisdiction, anyway, based on the biological father’s Indian heritage, tribal officials said.

“Our courts are just as qualified and just as capable of deciding this case as any state court,” said Chrissi Nimmo, the assistant attorney general of the Cherokee Nation.

Despite the tribe’s openly siding with the birth father, a Cherokee court would make an independent ruling, she said, “just as impartial” as any other court.

“There are some very complicated legal questions that need to be answered,” Nimmo said. “And some judge will have to make some very difficult decisions.”

Meanwhile, everybody is waiting for the South Carolina Supreme Court.

In theory, the state court could immediately give custody back to Matt and Melanie Capobianco — who have offered to move to Oklahoma, if necessary, to help Veronica’s “transition.”

But the court more likely will refer the case to a family judge, who will consider the girl’s “best interests,” Nimmo said.

“It’s absolutely not in her best interests,” she said, “to take her away from the only family that she has any memory of.”

But if the Capobiancos don’t win custody, the birth mother has threatened to reassert her parental rights, challenging the birth father for custody even if he wins the case.

Christinna Maldonado was Dusten Brown’s fiance when the pregnancy began. But she broke off the relationship and arranged a private adoption.

An attorney for Maldonado accused the Brown family of “delay tactics,” hoping to delay court proceedings in South Carolina by starting other court proceedings in Oklahoma.

Everyone seems to agree that the longer Veronica stays in Nowata, the less likely any court will send her back to Charleston.

But whatever happens next, the case will definitely drag on for months, if not years to come.”

Dad in ‘Baby Veronica’ Indian child case seeks Oklahoma adoption

[Tulsa World 7/9/13 by Michael Overall]

Update 25/July 16, 2013

“After years of silence surrounding the failed attempt to put up her biological child for adoption, Christy Maldonado finally went public with an editorial on custodial placement in Adoptive Couple v. Baby Girl in Friday’s Washington Post. By rehashing outdated talking points, Maldonado has reanimated her position as the central figure in a case that has pitted Veronica’s biological father, Dusten Brown, against a pre-adoptive couple in an epic crucible over race, class, tribal membership and father’s rights.

Following the United States Supreme Court ruling last month, which held that a specific section of the Indian Child Welfare Act did not apply, but the rest of the Act remained intact and in force, attorneys for Dusten Brown in both Oklahoma and South Carolina moved swiftly and decisively to follow the directions and guidance of what the court did—and did not—elaborate on in their decision to remand the case back to the lower courts for further review.

Meanwhile, the Capobianco’s camp, continuing a pattern of behavior prior to the Supreme Court hearing, again released court records regarding the juvenile matter to Andrew Knapp, a reporter for the Charleston Post and Courier, though requests to release the same records to Indian Country Today Media Network were denied by the South Carolina Supreme Court because the case is sealed under state law.

But since the contents of the documents are now in the public sphere, it appears that events unfolded quickly after the Supreme Court issued its ruling on June 25. On July 1, Brown and his wife, Robin, jointly filed for custody, adoption and guardianship in Nowata County, Oklahoma. The following day, his parents,

Tommy and Alice Brown also filed a motion with the District Court of the Cherokee Nation as a certified adoptive placement preference of their granddaughter, in the event that Brown’s parental rights are terminated.

Under the law, however, the Indian Child Welfare Act is still applicable in Adoptive Couple v. Baby Girl and must be followed regarding adoptive placement preference with either family members or fellow tribal members in the event a parent is found unfit or their rights are terminated, according to Indian law experts.

Beating the Capobiancos to the punch, on Wednesday, July 3, Brown’s attorneys in South Carolina also filed a motion to remand the case back down to the family court in Charleston for a fulsome review and evaluation of all parties and current conditions. They argue that Veronica has been with her “fit and loving” biological father and her stepmother as part of an intact family for the last 18 months, therefore necessitating an updated determination of the “best interest” doctrine commonly used throughout the United States.

Also at issue is whether or not South Carolina should retain jurisdiction at this juncture in the case, considering that Veronica, her biological father and stepmother, her grandparents, siblings, cousins, friends, healthcare providers, et al, are domiciled in Oklahoma. The Capobiancos are the only parties in the case who live in South Carolina. Therefore, experts say it beggars belief that a South Carolina Court could even make a best interest custodial placement there, since the entire family and all the relevant experts reside in another jurisdiction, which would exact an enormous logistical and financial burden on all of the parties.

Bringing up the rear, the Capobiancos closed out the first week of July by filing a motion for immediate judgment with the South Carolina Supreme Court on Friday, July 5, which means in plain English that Dusten Brown’s rights would be immediately terminated, and Veronica would be transferred back to the

pre-adoptive couple. In anticipation of such a ruling, the Capobiancos have offered a “transition plan” to the court in which they would move to Oklahoma to assist with Veronica’s transition back to South Carolina.

Legal experts, however, say that because the case has likely reverted back to a “best interest analysis,” it would be highly unusual that the court would strip Brown’s custody without a comprehensive and thorough review of all the evidence accrued since Veronica left South Carolina in December 2011.

Which brings the subject back to Maldonado’s editorial in Friday’s Washington Post. In her prose, she returned yet again to the infamous “text message” in which she claimed Dusten Brown “renounced” his parental rights, disregarding not only the fact that parental rights cannot be terminated via text message (even though Brown has repeatedly asserted that was never his intent), but also that that specific text message was ruled inadmissible.

Judge Deborah Malphrus refused to admit it into evidence unless the phone and the entire conversation was produced. Subsequently, the phone, which had been locked away in a safe, mysteriously went “missing” the next day at court. And along with it, the full transcript of what actually transpired between Maldonado and Brown.

Therefore, say family law experts, the “text message” that was used against Brown is without context and is therefore irrelevant to the current situation on the ground and further court proceedings that are no doubt getting ready to happen—whether they occur in South Carolina or are ceded to Oklahoma.

Additionally, it ignores the South Carolina’s Supreme Court’s written finding that both she and the Capobiancos twisted the facts and the strained the limits of truth to fit their legal strategy in attempting to terminate Dusten Brown’s parental rights to push the adoption through without his approval or consent. Finally, it is a miraculous recovery of her memory of events that she could not seem to recall, based on her own previous court-recorded testimony.
“The optics of this case are very clear,” says one legal scholar who asked not to be identified because the case is ongoing. “This is a mother who very early on decided that she did not want this child. So it strains the imagination that this entitles her to abrogate the father’s parental rights to his daughter simply because of her personal issues with him. At some point, this case has to be about what’s in Veronica’s best interest, and unfortunately, it’s become about winning.”

Baby Veronica’s Birth Mother Finally Speaks Out About Court Case

[Indian Country Today Media Network 7/15/13 by Suzette Brewer]

“In the summer of 2009, I made the most difficult decision of my life: to place my baby, Veronica Rose, with adoptive parents. Many know her as “Baby Girl” or “Baby Veronica” because her adoptive parents and I fought all the way to the Supreme Court for Veronica’s right to be treated like a human being — not property owned by a Native American tribe.

I am Latina and not a member of any tribe. When I became pregnant, I was already a single mother with two children, in a relationship that was on the rocks. I thought hard about my options and decided I could not have an abortion. I was briefly engaged to Veronica’s biological father, who is a member of the Cherokee Nation, but our relationship was over by my third trimester.

Baby Veronica belongs with her adoptive parents

[Washington Post 7/12/13 by Christine Maldodano]

NICWA has provided a Fact Check about the inaccuracies in the Media. See it in this 7 page pdf

Update 26/July 17, 2013

South Carolina Supreme Court votes 3-2 in favor of the Capobiancos! They order the family court to finalize the adoption. In order to finalize, they must declare Dusten unfit as he did not consent to the adoption. What a severe loss for Veronica. She can always come here to learn the truth. I have no idea how the Capobiancos or the US Supreme Court justices or SC Supreme Court justices who voted for this can look at themselves in the mirror. Way to break a family up for $$$!

The Capobiancos will have a rude awakening when Veronica grows up and sees what they did.I guess they can spend the next 14 years pretending.

“In a 3-2 decision, the South Carolina Supreme Court has reversed its previous ruling following an opinion by the United States Supreme Court last month and has cleared the way for a South Carolina couple to complete their adoption of a girl previously returned to her biological father, an Oklahoma man.

Court rules in favor of South Carolina couple in Oklahoma girl’s adoption [Koco 7/17/13]

Update 27/July 22, 2013

“The Cherokee Nation on Monday filed a petition for a rehearing in the Veronica adoption case, asking the South Carolina Supreme Court to reconsider the July 17 order.

That order urged the family court to finalize Veronica’s adoption to Matt and Melanie Capobianco.

“It is very troubling that the South Carolina Supreme Court would move to terminate the parental rights of a man who has proven to be nothing but a fit and loving father, without even holding a hearing to determine what is in his own child’s best interests,” said Cherokee Nation Principal Chief Bill John Baker. “What is best for Veronica has not even been considered by the court. We pray the South Carolina Supreme Court grants our request for a due process hearing to determine what is in this child’s best interests.”

The petition focuses on facts the Cherokee Nation says were missing from the court’s ruling and did not take into account Veronica’s best interests.

On July 17, the Cherokee Nation reportedly granted a guardianship order for Veronica, giving full legal custody to her stepmother, paternal grandfather and paternal grandmother.

Custody of Veronica was granted to family members because Dusten Brown, Veronica’s birth father, was deployed in National Guard training.

“Dusten Brown is an Iraq combat veteran who has fought as tirelessly for his child as he did for our country. That fight began the day he learned of the birth mother’s plans to place his child for adoption and continues today. Since regaining custody, he has created a loving, safe and nurturing environment for Veronica,” said Chrissi Ross-Nimmo, assistant attorney general for the Cherokee Nation. “This temporary guardianship order is just another step Dusten has taken to ensure his daughter is always well cared for should something happen to him as he is serving his country during this mandatory military training assignment.”

Veronica’s birth mother, Christinna Maldonado said in a statement that she was upset by the Cherokee Nation’s decision to further prolong the legal wranglings of this adoption case. [Christina, as someone who voluntarily terminated her rights, you need to shut your mouth now.The ones who prolonged this case are the PROSPECTIVE adoptive parents, the Capobiancos.]

“I have been told about today’s filings in the SC Supreme Court, and I am deeply saddened to see continued legal wrangling in this case that continues to distort critical facts, and ironically has for the first time appealed to Veronica’s ‘best interests’ in an attempt to unlawfully hold on to a little girl who has been separated from her parents for 18 months,” she said. “She was separated from her family – with no transition whatsoever – and Mr. Brown’s and the Cherokee Nation’s lawyers argued repeatedly that her 27 months with the people who raised her from birth were totally irrelevant because of an accident of her father’s heritage.”

Hours earlier, several American Indian groups said they were preparing to sue over the court’s decision to allow the adoption of a girl of Cherokee heritage by a Charleston-area couple. That order happened five hours before the state Supreme Court ruled, the tribe claims.

The Native American Rights Fund, National Congress of American Indians and National Indian Child Welfare Association said Monday they want to try to protect the best interests of the now-3-year-old girl named Veronica.

“When it comes to adoption proceedings, every court in this country has a legal obligation to put the best interests of a child first – every time, no matter the race of the child. This did not happen here. The South Carolina Court’s order represents a perilous prospect for not only Veronica, but any child involved in a custody proceeding in this country,” said Jacqueline Pata, Executive Director of NCAI.  “In a rush to judgment, the South Carolina Supreme Court ordered Veronica to be removed from her biological father without any consideration for her best interests.  The decision contributes to the long and sordid history of Native American children being removed from their families without any consideration of their best interests. The National Congress of American Indians refuses to stand by as the rights of this child are violated.”

With the backing of the U.S. Supreme Court, the South Carolina Supreme Court last week ordered a Family Court to finalize Veronica’s adoption by Matt and Melanie Capobianco.

The girl has been living in Oklahoma since 2011 when South Carolina justices said a federal law favored her being raised by her biological father, a member of the Cherokee Nation.

Her father has been pursuing custody of Veronica in Oklahoma.

“Two years ago, both the South Carolina Supreme Court and Family Courts held best interest hearings and determined that it was in Veronica’s best interest to be with her father and that he was fit parent,” said Terry Cross, Executive Director of the National Indian Child Welfare Association. “As a result the South Carolina Supreme Court transferred custody to Mr. Brown. The legal system worked then, but it is being ignored now. It is unconscionable that no best interest hearing has been held in conjunction with the latest transfer order. Every child deserves to have his or her best interests considered – that is a fundamental right, and one that should not be denied any child.”

A nonprofit law firm representing Indians and India tribes in federal and state courts said it was working with attorneys in South Carolina and Oklahoma to find the best course of action.

“In this case, we strongly believe that federal civil rights laws are being violated, that other applicable provisions of the Indian Child Welfare Act are being ignored by the state courts, and that the principles underlying treaty and international law protecting the rights of indigenous peoples are being undermined,” said John Echohawk, Executive Director of NARF.

The Cherokee Nation and Dusten Brown have only a few days left to file a petition with South Carolina courts.

“Enough is enough. It is time for everyone in Oklahoma to sit down and act like adults and figure out the best way to transition Veronica back to her home on James Island,” Maldonado said.”

Cherokee Nation files petition to rehear Veronica adoption case

[ABCNews 4 7/22/13 ]

“The Post and Courier on Thursday asked lawyers and other professionals what the future holds for the girl:

Q: How soon could the adoption take place?

A: Lawyers have five days to file a petition with the state Supreme Court to appeal this ruling, so those are due Monday. Brown’s lawyer, Shannon Jones, has said that her brief for a rehearing will be filed and the Cherokee Nation is also planning action.

Q: Will there be a hearing in Family Court?

A: Under the current ruling, the Family Court is ordered to finalize the adoption. A letter called a remitter from the Supreme Court is needed, but once that document is in the hands of the Charleston County Clerk of Court, a hearing finalizing the adoption could be set quickly. Court records on adoptions are sealed, and not public record. How long that could take depends on where the Capobiancos were on the adoption check list that is required before an adoption can be finalized.

Q: How quickly could Veronica be returned to South Carolina?

A: As soon as the adoption order is executed, the Capobiancos’ and Browns’ lawyers would negotiate a time and place to pick up the child.

Q: Does the father have more recourse in the courts?

A: After the U.S. Supreme Court decision, Brown and his wife filed an adoption petition in Oklahoma. If Brown loses custody, his parents also filed for adoption through Cherokee Nation courts. The Tulsa World reports that his parents, Tommy and Alice Brown, argue that certain provisions of the Indian Child Welfare Act still apply, giving tribal courts jurisdiction.

Those cases are still going forward, but once the adoption order in South Carolina is executed, Oklahoma courts might decide that they have to honor that decree, said Martha Zug, an associate professor of law at the University of South Carolina.

She points out that as part of the U.S. Constitution, there is a law familiarly known as the “Full Faith and Credit Clause” that says states have to respect the “public acts, records, and judicial proceedings of every other state.”

Q: Did the Browns’ case raise new issues with the S.C. Supreme Court?

A: Their latest motion to the S.C. Supreme Court raised issues of: (1) whether the case should be transferred to Oklahoma, where Veronica has lived for 18 months, where the relevant witnesses are located, and where competing adoption petitions are pending.

(2) Whether, on the current record, Brown’s parental rights may be terminated, or whether it is in the child’s best interest for her to remain with the natural parent who has cared for her and with whom she has bonded over 18 months.

(3) Whether, in light of the competing adoption petitions, the ICWA placement preferences preclude adoption of Veronica by the Capobiancos.

The ruling of the court on Wednesday was, “We deny Birth Father’s motion in its entirety.”

Q: Will Veronica require counseling?

A: Bonnie Compton, a child and adult therapist and parent coach with Life Guidance Center in Mount Pleasant, said she would hope that Veronica would receive some form of counseling immediately after her return to South Carolina.

“Children are resilient, but children at that age have emotions but don’t know how to process them. Parents should look for signs of withdrawing or acting out or meltdowns that are above and beyond what is expected at that age and development.

Compton said that with the many moves Veronica has had, she will have questions later about what happened to her. “Children will let you know when they want information. The thing to do is to answer their questions without overwhelming them.”

Q: What are the legal implications for the Indian Child Welfare Act?

A: Terry Cross, executive director of the National Indian Child Welfare Association, said he thinks the recent U.S. Supreme Court ruling left the act intact, but raised some questions that will take a great deal of time to work through.

The S.C. State Supreme Court ruling “sends a chilling message” to anyone who decides whether or not it’s convenient to follow the law, he said.”

What’s next for Baby Veronica?

[The Post and Courier 7/19/13 by Stephanie Harvin]

Update 28/July 29, 2013

(1) Daily Mail has new photos of Veronica and Dusten. See those here.

(2) On July 24, 2013, Dusten asked South Carolina Supreme Court to re-hear the case. They said NO.

Father asks high court to block SC adoption ruling

[Arizona Family 7/26/13 by Associated Press]

“South Carolina’s highest court on Wednesday refused to rehear a case involving a South Carolina couple’s attempts to adopt a girl of Cherokee heritage, setting up a family court action _ and potentially a federal lawsuit.”

“Several American Indian groups recently said they were planning to file a federal lawsuit to protect Veronica’s interests if the state court denied the request, saying a hearing is needed to determine the best interests of the child.

In a statement, the groups said they would pursue the lawsuit, calling the case “an alarming failure of the judicial system.”

In their order Wednesday, the justices said they believed that adoption by the Capobiancos was in the child’s best interests. The couple _ the court wrote _ has committed to rearing the girl “in a manner that maintains a meaningful connectedness to her Native American heritage” and also has proposed a plan for transitioning her from life with her biological father in Oklahoma.

The order commands the family court to act “forthwith” but sets no actual timetable on finalizing adoption or returning the girl to South Carolina.”

SC denies requests to rehear adoption case

[Las Vegas Sun 7/26/13 by The Associated Press]

(3) Christine Maldodano, the birthmother, is suing the federal government.

“The biological mother of a girl at the center of a South Carolina adoption dispute has sued the federal government, saying a law governing the placement of Indian children is unconstitutional.

In her lawsuit, filed Wednesday in federal court in South Carolina, Christy Maldonado asks U.S. Attorney General Eric Holder for a declaration that parts of the Indian Child Welfare Act are illegal. Those measures — which include a preference for “other Indian families” over prospective non-Indian adoptive parents — should be nixed because the law uses race in determining with whom a child should live and therefore violates equal protection provisions, Maldonado argues.

The act was passed in 1978 to reduce the number of Indian children being removed from their homes by public and private agencies and placed with non-Indian families. The law, Maldonado said in the lawsuit, was enacted with good intentions but ended up “sweeping within it children who do not have, and would not have — but for ICWA — any connection whatsoever to any Tribe other than biology … and irrespective of whether their sole custodial birth mothers — their only legal parents — have even a trace of Indian blood.”

Maldonado, who is Hispanic, was unmarried when she got pregnant and worked closely with a non-Indian couple hopeful of adopting her daughter. Her lawsuit includes 10 unnamed plaintiffs who are also unmarried mothers of children of Indian heritage who, because of the federal law, fear the adoptions of their children won’t be finalized because the prospective parents are non-Indians, according to court documents.

Maldonado’s lawsuit also names the Cherokee Nation as a defendant. Spokeswomen for both the nation and the federal government did not immediately comment on the lawsuit.

A Charleston-area couple has been trying to adopt Maldonado’s now-3-year-old daughter since the girl’s birth. Veronica lived with Matt and Melanie Capobianco for the first two years of her life but has been with her biological father since 2011, when the South Carolina Supreme Court ruled that, because of the federal law, Dusten Brown should have preference because of his Cherokee heritage.

The Capobiancos appealed that decision to the U.S. Supreme Court, which ruled this year that federal law did not actually require that Veronica — who is about 2 percent Cherokee — be given back to her Cherokee father.

But the ruling didn’t directly award the girl to the Capobiancos, instead leaving it to South Carolina courts to decide where Veronica should end up. Last week, the state Supreme Court ordered a family court to finalize the Capobiancos’ adoption of the girl, a decision that court upheld Wednesday.

No formal transition timetable has been set. Brown is also pursuing custody of her in Oklahoma, and his parents also are seeking guardianship through the Cherokee court system. [Actually they already have received guardianship along with her stepmother]Several American Indian groups have said they plan to file their own federal lawsuit to protect Veronica’s interests.”

Mom sues US government in Indian girl’s adoption

[Muskogee Phoenix 7/25/13 by Associated Press]

Update 29/July 30, 2013

“A South Carolina judge is set to consider this week how to transfer a girl of Cherokee heritage from her biological father in Oklahoma to the couple seeking to adopt her.

Matt and Melanie Capobianco have a hearing in family court in Charleston on Wednesday, court records show.

he couple have been seeking to adopt Veronica, a now-3-year-old girl of Cherokee heritage, since her birth in 2009. The girl’s biological father, who had never met his daughter, challenged the attempt, saying federal law favored that the girl be raised by him and grow up learning tribal traditions.

The South Carolina Supreme Court initially agreed with Dusten Brown’s arguments, ruling in 2011 that, under the 1978 Indian Child Welfare Act, Veronica should be raised by him in Oklahoma, where she went to live that year.

The Capobiancos challenged that ruling in the U.S. Supreme Court, which ruled earlier this year that South Carolina’s court system should determine who gets to adopt the girl. Earlier this month, the state Supreme Court issued a second ruling in accordance with that decision, saying a Family Court should finalize the Capobiancos’ adoption of Veronica.

Regardless of the outcome of Wednesday’s proceedings, litigation over the girl and the issues in adoption is far from over. Her biological father has asked the U.S. Supreme Court to halt the adoption, arguing that state justices misread the high court’s June ruling and did not take account of Veronica’s interests. The Cherokee Nation, of which Brown is a member, also joined in the plea to the Supreme Court.”

“In the U.S. Supreme Court action, Chief Justice John Roberts has set a deadline of Friday for responses to Brown’s claim — two days after the adoption hearing in South Carolina.”

Wednesday hearing set in SC adoption dispute

[Island Packet 7/29/13 by Meg Kinnard./Associated Press]

Update 30/August 1

South Carolina Court grants adoption to Capobiancos. A bizarre 5-page transition plan developed by a Minnesota social worker and Tulsa family therapist/homestudy provider, neither of whom have met Veronica was approved. Dusten and Indian groups continue to try to block Veronica from being taken.

“he attorney for a South Carolina couple says a judge has finalized their adoption case, which reached all the way to the U.S. Supreme Court.

Lawyer James Fletcher Thompson said Wednesday that the adoption was now complete and a plan was in place to transfer the child from the custody of her father. He did not share details, and the hearing was closed to the public.

Matt and Melanie Capobianco have been trying to adopt 3-year-old Veronica since her birth. They raised the girl for two years, but Veronica moved to Oklahoma in 2011 after a South Carolina court ruled that federal law favored her being raised by her father, a member of the Cherokee nation.

But the fight may not be over. Several American Indian groups filed federal lawsuits.

The Cherokee Nation released this statement:

“Today, a Family Court in South Carolina finalized the adoption of an almost 4-year-old Cherokee child who has been living with her unquestionably fit, loving, biological father and large extended family, for one year and seven months, half a continent away in Oklahoma and Cherokee Nation. This decision was made without a hearing to determine what is in Veronica’s current best interests and comes almost two years after the same Family Court found that Dusten Brown was a fit, loving parent and it would be in Veronica’s best interests to be placed with her father. Every parent in America should be terrified.

“Dusten Brown is an honorable man and a good father. Cherokee Nation will continue to support Dusten, Veronica and the entire Brown family in their attempt to keep their family whole.”

Dusten Brown released this statement:

Our family is shocked and deeply saddened that the SC Supreme Court has refused to allow Veronica’s best interest to be considered. Even worse, that Court issued an Order they acknowledge will cause my daughter to suffer harm. The Court gave its blessing to the transition plan offered by the Capobiancos that says upon transfer to them, Veronica will be “fearful, scared, anxious, confused.” They say she will likely become quiet and withdrawn and may cry herself to sleep. That the transfer will cause her to suffer “grief” and “loss” and she will feel “rejected” by me and her family. They say it will leave her with many, “unanswered questions.” I will not voluntarily let my child go through that, no parent would. I am her father and it is my job to protect her. My family and I continue to pray that the justice system will bring justice to Veronica.

To Matt and Melanie Capobianco I want to say this, Please, for Veronica’s sake, just stop. Stop, and ask yourself if you really believe this is best for her.

Dusten Brown”

South Carolina judge finalizes Baby Veronica’s adoption

[Fox 23 7/31/13 by Associated Press]

“A transition plan set for a South Carolina family court to review on Wednesday outlines suggestions for a process to return Baby Veronica to her adoptive parents, including encouragement for her father to throw Veronica a going-away party before a seven-day transition in Oklahoma.

The plan – provided to the World by Cherokee Nation officials who are working with Veronica’s biological father, Dusten Brown – is the basis for a family court hearing in South Carolina scheduled for Wednesday afternoon, when a judge will decide the details of the transition.

Cherokee Nation spokeswoman Amanda Clinton said the proposed plan is callous toward Veronica and developed by social workers who have never seen or talked to the almost 4-year-old girl.

However, Lori Alvino McGill, an attorney for the birth mother, said Brown, who has had custody of Veronica for the past 19 months, never allowed the social workers who wrote the plan – nor the adoptive parents, Matt and Melanie Capobianco – to have any access to Veronica.

Soon after she was born, Brown agreed to give custody to the birth mother, who – unbeknownst to him, he maintains – had put Veronica up for adoption.

The Capobiancos raised Veronica from birth but lost custody when she was 2 years old.

With help from the Cherokee Nation, Brown won custody in December 2011. But the U.S. Supreme Court overturned that decision last month, sending the case back to South Carolina.

“Developed by experts in the field, that (transition) plan seeks to make it as easy as possible for Veronica to be reunited with her family, and has Veronica’s interests as its controlling consideration, as the (South Carolina) Supreme Court recognized,” McGill said.

The plan calls for a transition period of a week, when Veronica will be weaned away from Brown slowly – starting with play dates for the adoptive couple before phasing toward play dates with Brown and then the adoptive parents returning with Veronica to South Carolina.

“The bottom line is that Matt and Melanie have pledged to abide by whatever terms the family court believes are necessary to ensure that Veronica’s interests are protected during this sensitive time,” McGill said.

“That stands in sharp contrast to the way Veronica was treated 18 months ago, when she was loaded into a pickup truck, driven 22 straight hours to Oklahoma, and then never allowed to see or speak to her parents (the Capobiancos) again.

“Throughout this period, and even to this day, the Brown family has repeatedly refused simple requests for any type of visitation.”

Deena McMahon, a licensed individual clinical social worker in Minnesota, prepared the plan along with Catherine O’Reilly Chalmers, a licensed family therapist in Tulsa, according to South Carolina court records.

Chalmers did not return phone calls on Tuesday.

According to the transition plan, Brown is encouraged to do things to make Veronica feel comfortable with the Capobiancos, who are asked to send photos.

“He can plan a farewell celebration with his community, which should be done prior to the transition period. He can gather photos and memorabilia of his life with Veronica and of his own family and community and have them organized to send with Veronica,” according to the plan’s preparation section.

“Dusten (Brown) should be encouraged to find and use support to help him manage this grief-filled experience. This person may be his proxy, a mental health provider or community member,” according to the plan.

The plan encourages Brown to appear outwardly supportive and positive about the transition back to the Capobiancos for Veronica’s sake.

“If the parties mutually agree, visits with Dusten (Brown) should not occur for at least two months, to allow Veronica time to settle in. Routine phone calls, such as once or twice a week for the first few weeks, are suggested, but they should not last more than a few minutes,” according to the transition plan.

In a section labeled “What to tell the Child,” the five-page plan suggests distractions such as “She can have a cookie at her adoptive parents’ house. Talk about games she can play when she gets there. Tell her she can watch her favorite video or cartoon when she returns to the adoptive parents’ home.”

“In language Veronica can understand, help her realize she will be returning to the family she lived with when she was a little girl, to help take care of her, to keep her safe, to play with her, and to love her. This is the hardest part.

“Veronica must not believe she is being abandoned or rejected. She needs to feel she is gaining something and being welcomed. Tell her repeatedly that Dusten loves her very much. At this stage, children can understand the idea of two fathers.”

Cherokee Nation Assistant Attorney General Chrissi Nimmo said attorneys for Brown intend to file an objection Wednesday to halt the family court hearing, “though we don’t think it will have any effect.”

Brown has filed a request with the U.S. Supreme Court to stay the South Carolina Supreme Court order, Nimmo said.

The Supreme Court ordered that the adoptive couple respond to the motion by 2 p.m. Friday.

On Wednesday “there will likely be an order of a physical transfer of custody, and the adoption will likely be finalized, barring any unforeseen circumstances,” Nimmo said. “The mechanism then to enforce that order is to register it with an Oklahoma court and seek enforcement.”

Brown will then have 20 days to request a hearing, unless he voluntarily agrees to go forward with the transition, Nimmo said.

“We are still very, very hopeful the United States Supreme Court will stay the South Carolina Supreme Court decision,” Nimmo said. ”

Court to review plan for Baby Veronica’s transition back to South Carolina

[Tulsa World 7/31/13 by Jarrel Wade]

“A hearing Wednesday afternoon finalized Baby Veronica’s adoption and determined how she will transition from her father’s home to her adoptive parents home.

Lawyer James Fletcher Thompson said Wednesday that the adoption was now complete and a plan was in place to transfer the child from the custody of her father.

The hearing proceeded as scheduled despite a last-minute lawsuit requesting an injunction.

A Cherokee Nation-appointed attorney filed the civil lawsuit in South Carolina’s federal district court on behalf of Baby Veronica alleging her rights have been violated by the court’s decision to not allow a hearing of her best interests before Wednesday’s hearing on the terms of her transition.

Lori Alvino McGill, an attorney for the birth mother, said the lawsuit’s requested injunction on the transition hearing was denied Wednesday afternoon.

After the World spoke with McGill, who was not in court Wednesday, the judge imposed a gag order on all parties barring them from making any details of Wednesday’s proceedings public.

The hearing ended at about an hour and a half after it began.

The lawsuit filing and press release announcing the lawsuit came as the legal parties representing her biological father, Dusten Brown, and her adoptive parents, Matt and Melanie Capobianco, entered the South Carolina family court on Wednesday.

Richard Guest, a staff attorney for the Native American Rights Fund, said Oklahoma attorney Angel Smith, who filed the lawsuit on Veronica’s behalf, was appointed by the Cherokee Nation last week and is representing Veronica as a Cherokee citizen.

Smith could not be reached immediately for comment.

Guest said Smith was appointed in anticipation of future litigation returning to Oklahoma and Cherokee Nation courts.

Soon after she was born, Brown agreed to give custody to the birth mother, who – unbeknownst to him, he maintains – had put Veronica up for adoption.

The Capobiancos raised Veronica from birth but lost custody when she was 2 years old.

With help from the Cherokee Nation, Brown won custody in December 2011. But the U.S. Supreme Court overturned that decision last month, sending the case back to South Carolina.

McGill said another best-interest hearing would be redundant after the case was already argued in front of the United States Supreme Court.

“The complaint filed against Judge (Daniel E.) Martin (Jr.) … is nothing more than an unfortunate publicity stunt,” McGill said. “This case can’t be relitigated in a different forum just because Mr. Brown and his supporters refuse to accept the result.”

The lawsuit came with a letter of support from a broad group of civil rights organizations, tribes, state officials and others.

The letter of support is supported by the office of Arizona Attorney General Tom Horne, New Mexico Attorney General Gary K. King, the Child Welfare League of America, Cherokee Nation Chief Bill John Baker and others.

The lawsuit complains on one count of due process violation and one count of violating the Indian Child Welfare Act.

“As a matter of law, the actions of the state courts of South Carolina have deprived the plaintiff (Veronica) of a meaningful opportunity to be heard on the matter of her current best interests before being transferred from her father to an adoptive couple,” according to the lawsuit.

Though Wednesday’s hearing was closed to the media and the judge imposed a gag order on the parties involved, a transition plan submitted to the court detailed a week-long transition between the two families.

The plan calls for a transition period of a week, when Veronica will be weaned away from Brown slowly – starting with play dates for the adoptive couple before phasing toward play dates with Brown and then the adoptive parents returning with Veronica to South Carolina.”

South Carolina court finalizes adoptive parents’ adoption of Baby Veronica

[Tulsa World 7/31/13 by Jarrel Wade]

“The South Carolina couple seeking to adopt a girl of Cherokee heritage asked the U.S. Supreme Court on Wednesday to scuttle a request from the girl’s biological father to delay that process.

In papers filed with the nation’s high court, attorneys for Matt and Melanie Capobianco argued that the request should be denied not only because adoption by the couple is in the girl’s best interest but also because that placement is supported by previous court decisions.”

SC couple seeking to adopt girl: Don’t delay process

[GO UpState 7/31/13 by Meg Kinnard/Associated Press]

“The James Island couple trying to adopt a Cherokee girl for more than three years was declared Wednesday afternoon the adoptive parents of Veronica.

A transition plan is in place to bring Veronica back to James Island, the place that was her home for 27 months before being taken away after a South Carolina Supreme Court ruling 18 months ago.

“Matt and Melanie are the adoptive parents of baby girl Veronica. It’s been a long process for everyone. That includes a long process for the child, a long process for the birth family. We’re now to the point that we can say there are no winners. There are no winners when an almost 4-year-old child has been in this legal limbo. But we’re now looking to the future,” said James Thompson, an attorney for the Capobiancos.

Officials did not comment on the details of the transition plan, but the Capobiancos previously submitted a 7-day transition plan to the court. Thompson said details of the transition could not be divulged, adding “(the plans) are respectful of the birth family, the adoptive family and most importantly focused on Veronica.”

A court order prevents all sides from discussing the details of the transition.

A representative for the Capobiancos said Wednesday afternoon that there were no winners in the case, but that all sides were moving forward focused on Veronica’s health and care.

The Cherokee Nation on Wednesday evening expressed their unhappiness at the decision.

“This decision was made without a hearing to determine what is in Veronica’s current best interests and comes almost two years after the same Family Court found that Dusten Brown was a fit, loving parent and it would be in Veronica’s best interests to be placed with her father,” the statement reads.

“Every parent in America should be terrified.”

Battle over best interests

“I want to say this. Please, for Veronica’s sake, just stop. Stop and ask yourself if you really believe this is best for her.”

Those were the words in a brief statement outside a family courtroom Wednesday afternoon before a custody hearing for his biological daughter, Dusten Brown issued a statement through his attorney, Shannon Jones.

The statement goes on to say that Brown is upset Veronica’s best interests are not being considered. Quoting parts of the proposed 7-day transition plan drawn up by the Capobiancos, Brown said in the statement that the results of the hearing would cause his daughter harm.

“I will not voluntarily let my child go through that, no parent would. I am her father and it is my job to protect her. My family and I continue to pray that the justice system will bring justice to Veronica,” Brown’s statement reads.

Jones said she thought the hearing would be fairly short.

Shortly after, both sides filed into the courtroom for a hearing that is expected to finalize the adoption of Veronica to Matt and Melanie Capacitance.[sic]

The hearing was slated to start at 3:30 p.m. and could last for more than an hour. South Carolina law states that adoption hearings are closed to the public. As a result, security around the courthouse is tight and only family members and the legal teams are being allowed inside the courtroom.

The hearing has been a long time coming for both sides in a custody hearing that started shortly after Veronica’s birth and has lasted through her entire life. She has even been the focus of a pair of hearings in the South Carolina Supreme Court and one hearing before the U.S. Supreme Court.

Her biological father has requested the U.S. Supreme Court to re-examine the case, but Chief Justice John Roberts has not signaled that he intends to act or pass it along to the full court to act.

Several American Indian groups have gone to court seeking to protect the civil rights of Veronica.

The federal lawsuit filed Wednesday argues that a hearing is needed to determine the best interests of the child. The groups also sought a restraining order to stop an adoption hearing in Charleston Wednesday, but that request has already been denied.

“A severe injustice has been committed to an innocent Cherokee child and her loving family in Oklahoma. The Brown family, including Veronica, deserves their due process. They do not deserve to have their lives forever transformed by the South Carolina judicial system without cause or consideration,” a tribal council statement reads.

At the same time, Christinna  [sic]Maldonado, Veronica’s birth mother, has filed a lawsuit on behalf of several women with children born who are now fighting for rights after Indian groups have exercised the Indian Child Welfare Act to take custody of the children.

The James Island couple has been trying to adopt 3-year-old Veronica since her birth, but the matter has been tied up in court for years.

Matt and Melanie Capacitance raised the girl for two years, but Veronica moved to Oklahoma in 2011 after a South Carolina court ruled that federal law favored her being raised by her father, a member of the Cherokee nation.

The U.S. Supreme Court ruled earlier this year that the S.C. Supreme Court’s application of ICWA in the case of Veronica was done incorrectly because Brown had given up his rights as father.”

Capobianco attorney: ‘We’re now looking to the future’

[ABCNews 4 7/31/13]

Update 31/August 6,2013

“The U.S. Supreme Court on Friday [August 3 2013] denied the request of “Baby Veronica’s” biological father to block a South Carolina Supreme Court ruling that grants custody of the girl to a South Carolina couple.

The order is another win for the adoptive parents, who are one step closer in their legal struggle. However, many hurdles may remain before Veronica is in their custody.

The request was filed in the quest of Oklahoma resident and Cherokee citizen Dusten Brown, the child’s biological father, to receive a best-interest hearing for the child at the center of the custody battle. That hearing was denied by the South Carolina courts, which approved Veronica’s adoption by Matt and Melanie Capobianco this week.

Chrissi Nimmo, assistant attorney general for the Cherokee Nation, asserted the rights of the state of Oklahoma and Cherokee Nation law in a statement expressing disappointment in the Supreme Court.

“The original decision of the United States Supreme Court did not mandate the removal of Veronica from her father, family and tribe,” she said. “However, instead of clarifying their original decision, the United State Supreme Court has washed their hands of this case. … While Veronica may not have a right to a determination of her best interest under South Carolina or federal law, she does have that right under Oklahoma and Cherokee Nation law.”

Nimmo said the Supreme Court’s decision gave “little to no thought about what would happen to Veronica” when the case went back to South Carolina and that the justices “apparently still care very little about what is best for her.”

The U.S. Supreme Court ruling was three sentences with no accompanying opinion.

According to the filing, Justice Ruth Bader Ginsburg and Justice Sonia Sotomayor issued dissenting opinions and would have granted a postponement of the South Carolina ruling.

Last week, Brown appealed to Chief Justice John Roberts to block the decision that granted custody of his daughter to the Capobiancos. The Capobiancos issued a response to Brown’s U.S. Supreme Court filing on Tuesday.

Four months after she was born, Brown agreed to give custody to the birth mother, who – unbeknownst to him, he maintains – had already put Veronica up for adoption.

The Capobiancos raised Veronica from birth but lost custody when she was 2 years old.

With help from the Cherokee Nation, Brown won custody of the child in December 2011. But a U.S. Supreme Court ruling in June sent the case back to South Carolina.

Action since Supreme Court ruling

Since June 25, when the U.S. Supreme Court ruled in favor of the adoptive parents in the Baby Veronica case, the following court actions have been filed.

July 9: Cherokee Nation District Court officials confirm that Dusten Brown’s mother and father, Tommy and Alice Brown, have filed for adoption of Veronica – in line with Supreme Court Justice Sonia Sotomayor’s dissenting opinion.

July 17: Cherokee Nation courts name several of Dusten Brown’s family members as joint guardians, giving them the power to make legal and medical decisions for Veronica and complicating the issue for South Carolina courts.

July 24: Christy Maldonado, Veronica’s birth mother, files a lawsuit with several other women who have placed children for adoption, seeking to have part of the Indian Child Welfare Act declared unconstitutional.

July 26: Dusten Brown files a petition with the U.S. Supreme Court to review the case and require South Carolina courts to hold a best-interest hearing for Veronica.

Wednesday: Prior to a hearing on transition details for Veronica, a Cherokee Nation attorney appointed for Veronica files a federal lawsuit in South Carolina seeking to temporarily stop the hearing and hold a best-interest hearing. It is denied.

Friday: The U.S. Supreme Court denies Brown’s July 26 petition. Justices Ruth Bader Ginsburg and Sonia Sotomayor were the only dissenters, saying they would have approved the stay. ”

Court denies ‘Baby Veronica’ adoption appeal

[Tulsa World 8/3/13 by Jarrel Wade]

Read Adoptee Voices on this subject at The Adopted Ones here.

Update 32/August 8, 2013

Dusten Defies Sunday August 4th order to meet with Capobiancos with Veronica.

“A Charleston judge on Monday ordered the immediate transfer of 3-year-old Veronica to her adoptive parents and called for action from state and federal authorities after the girl’s birth father failed to appear for a court-ordered visit the day before.

The decree by Family Court Judge Daniel Martin suspended a transition plan intended to gradually re-introduce the toddler to Matt and Melanie Capobianco of James Island. It also requests assistance from Dusten Brown’s commanding officer as he finishes a 30-day training mission with the Army National Guard.
The order is one of the strongest actions in the custody dispute since the U.S. Supreme Court ruled in June that Brown wrongly got custody of the girl under the Indian Child Welfare Act. After the case was sent back to South Carolina courts, the Capobiancos’ adoption was finalized.

The girl, who turns 4 next month, lived with the couple for the first 27 months of her life.

Attempts to reach Shannon Jones of Charleston and John Nichols of Columbia, two of Brown’s attorneys in the state, were not successful.

The judge ordered both of the attorneys to divulge their personal knowledge of Veronica’s whereabouts and his plans not to follow the order. Last week, Jones released a statement from Brown that said he wouldn’t abide by a ruling he thought would harm his daughter.

Martin also asked Solicitor Scarlett Wilson and the U.S. Attorney’s Office to take “any lawful action” to find Veronica and return her to the Capobiancos. Wilson said late Monday afternoon that she was “discussing with law enforcement to determine the best way to proceed.”

The Capobiancos declined to comment.

The married pair and a state-certified adoption investigator were scheduled to meet with Veronica and Brown or his relatives for their first, four-hour visit Sunday afternoon. Court documents did not divulge the meeting’s location.

But Veronica and Brown did not show during the visitation window. Martin’s order said he suspended the rest of the transition plan because Veronica “is being unlawfully withheld from her lawful parents.”

A court with the Cherokee Nation, of which Brown is a member, had transferred custody of Veronica temporarily to Brown’s wife and his parents as he completes the National Guard training. The tribe has said that the guardianship setup prevented any immediate custody switch.

Chrissi Nimmo, assistant attorney general for the tribe, called it “disgusting” to imply any criminal wrongdoing by Brown, especially while he is in another state for military service. She said it was physically and legally impossible for him to comply.

The order required Brown or a temporary guardian to attend the visit.

“This is another ploy to paint Dusten as the ‘bad guy,’” Nimmo said. “It is especially appalling while he is serving his country.”

In his order Monday, Martin asked Brown or the people watching the child to show up in an Oklahoma court with Veronica “to assist in the enforcement of this order.”

“This court reserves exclusive and continuing jurisdiction in this matter to impose additional remedies and sanctions,” Martin added.

Attorneys have said that Brown still can challenge the adoption in Oklahoma, where Veronica has lived for the past 19 months. But as the South Carolina court reasserted its jurisdiction, experts said that bid seems less likely to succeed.

The U.S. Supreme Court also declined last week to step in.

The adoption order, which Martin finalized Wednesday, has been registered in district court in Nowata County, where Brown lives.

For the order to be enforced in Oklahoma, the court must confirm it. Brown has 20 days to challenge it. Nimmo declined to discuss how he might go about that.

Under the Uniform Child Custody Jurisdiction and Enforcement Act, he could argue that South Carolina didn’t have the authority to finalize the adoption. The act helps govern interstate custody disputes in 49 states.

But Brown appeared during adoption proceedings here in 2011 and never challenged the jurisdiction as the South Carolina courts ruled in his favor.

Now that the state courts have issued rulings against him, at least one expert said he will have trouble arguing against their authority.

Marianne Blair, a professor of family law and civil procedure at the University of Tulsa, Okla., College of Law, said it’s common practice for one state’s court to abide by a judgment of anther state’s court.

But Veronica’s case is rare, Blair warned: A child up for adoption is typically living in the state that decides custody. If tribal courts get involved, that could add another hiccup in the process, she said.

“In general, an adoption order is a judgment, so Oklahoma state courts have to enforce it,” Blair said. “I don’t see how he could challenge (South Carolina) now.”

Judge orders Veronica’s prompt transfer, asks for prosecutors’ help after father misses visit

[The Post and Courier 8/5/13 by Andrew Knapp]

Video interview with Maldodano’s lawyer can be seen at Fox News Legal Tug of War Over Baby Veronica continues .

Judge Orders Immediate Turnover of Veronica to Capobiancos. See the transfer order here that was leaked to the local Charleston TV station. You can guess who did the leaking. The AP side loves to leak sealed information.

So much for caring about a transition!

“The case file is sealed, but Monday’s order from South Carolina Family Court Judge Daniel Martin was obtained by WCBD-TV of Charleston and posted on its website.”

SC judge orders Cherokee girl at center of adoption dispute transferred from Oklahoma

[Star Tribune 8/7/13 by Meg Kinnard/Associated Press]

“According to the Cherokee Nation, Dusten Brown is at a 30 day training for the Army National Guard.  They say he informed the court of the training.

Colonel Max Moss from the Oklahoma National Guard released this statement Tuesday:  “Dusten has been gone since July 22. This wasn’t a two week training, just to clear that up.  Oklahoma national guard won’t interject at this time into the matters involving baby Veronica and natural father, Oklahoma guardsman Dusten brown, who is attending military training out of state until August 21st. While we respect the request by judge Martin to enforce his order we believe it inappropriate for the Oklahoma national guard to take action in this matter until such time as it’s been fully litigated by all parties.  There are other legal mechanisms available to the state of South Carolina to enforce the court order that have nothing to do with the national guard or specialist brown military service.”

An attorney for the Capobiancos would not confirm whether that meant that the transition plan will completely change.

Attorneys for Brown have until 9:30 Tuesday morning to surrender all knowledge of where he is located.  The order was also sent to the Army National Guard where Brown is a guardsmen.”

Immediate transfer of Veronica ordered after missed visitation

[CountOn 2.com 8/6/13 ]

Update 33/August 12, 2013

August 9 to Noon, August 12 developments

August 9: Hearing to address order for attorneys to divulge information in Veronica case [Post and Courier 8/9/13 by Andrew Knapp] says ”

Attorneys for Veronica’s birth father next week will challenge a judge’s request for them to give up the 3-year-old’s whereabouts and what they knew about their client’s resistance to an order finalizing her adoption.

Judge Daniel Martin of the Charleston County Family Court approved the adoption last week. But after the toddler and Dusten Brown didn’t show up for a visitation with the girl’s adoptive parents, he ordered Brown’s attorneys to hand over the information.

Brown’s family has said that the girl is safe at home in Nowata, Okla.

One of the two attorneys, John Nichols of Columbia, said the judge asked him and attorney Shannon Jones of Charleston to appear at 3 p.m. Wednesday to discuss Martin’s information request and some motions filed before the adoption was finalized.

“We’ve just asked him to reconsider,” Nichols said Friday.

Jones said only that she would be “seeking justice.”

South Carolina bars parties in an adoption from appealing a final decree because of “defect or irregularity.” It does allow appeals based on “extrinsic fraud,” defined as something that “induces a person not to present a case or deprives a person of the opportunity to be heard.”

Matt and Melanie Capobianco, the James Island couple now considered the adoptive parents, attended the previous hearing July 31, but Brown was training with the Army National Guard in Iowa.

The military activity was why Brown’s representatives said he missed the scheduled meeting Sunday, when a plan to reintroduce Veronica to the Capobiancos was scheduled to start.

Martin then demanded an immediate custody transfer and asked federal and state prosecutors to help find Veronica.

In a statement Friday, 9th Circuit Solicitor Scarlett Wilson said her role in helping the court was “unusual and rare.” Wilson said she was “working day and night” with law agencies to bring Veronica back to Charleston.

But there is no simple, swift way to end the saga, she said.

“There are many legal reasons … that law enforcement cannot swoop down into Oklahoma and immediately whisk Baby V home to her parents,” she said. “Our states have agreed upon legal procedures to enforce custody matters.”

Like Wilson, Charleston County Sheriff Al Cannon said he couldn’t discuss specifics.

“We’re doing everything we can to address the situation,” Cannon told The Post and Courier. “We’re proceeding as expeditiously as possible.”

Assistant Attorney General Chrissi Nimmo of the Cherokee Nation, which has aided Brown’s legal fight to maintain custody, already has said that attorneys could fight the adoption decree in Oklahoma state and tribal courts. Law dictates a confirmation process for an out-of-state adoption order before Oklahoma authorities can enforce it.

Attorneys could argue that South Carolina did not have the jurisdiction to complete the adoption, she said.

“To my knowledge, a state has never finalized the adoption of a child who was in another state when the action was filed and in another state when the action was finalized,” Nimmo said. “There are multiple other South Carolina laws that were violated.”

When the U.S. Supreme Court ruled in June that the Indian Child Welfare Act didn’t apply to Brown, dissenting justices said that his American Indian relatives could file adoption petitions and that the courts would have to consider them under the ICWA.

The Cherokee Nation court will consider the jurisdictional arguments Sept. 4 in Oklahoma.

But Donald Cofsky of New Jersey, president of the American Academy of Adoption Attorneys, said further litigation might hurt the ICWA. He noted a lawsuit recently filed by a dozen birth mothers, including Veronica’s, asking for officials to declare portions of the law unconstitutional.

“The U.S. Supreme Court has spoken,” Cofsky said. “That should have been the end of it.”

Brown’s attorneys, he said, are “doing themselves a tremendous disservice by dragging this out.”

August 9: Solicitor talks of ‘unusual and rare’ role in Veronica adoption; sheriff addresses case [Post and Courier 8/9/13] says “Solicitor Scarlett Wilson today issued the following statement regarding notice by the Charleston County Family Court to represent the court to assist in the return of Baby Veronica to her parents:

I have received numerous telephone calls and emails regarding my involvement with returning the custody of a child known publicly as “Baby Veronica” from Oklahoma to her parents in Charleston. There are many legal reasons, starting with the UCCJEA (the Uniform Child Custody Jurisdiction and Enforcement Act) and including the laws of the States of Oklahoma and South Carolina that law enforcement cannot “swoop down” into Oklahoma and immediately whisk Baby V home to her parents. Our states have agreed upon legal procedures to enforce custody matters and it is my responsibility to follow them.

In the late afternoon of Monday, August 5, I received notice that the Family Court had sought my counsel in this matter. Pursuant to the Court’s Order, I am required to act on behalf of the Court and I am specifically precluded from acting on behalf of any party. Under the Act, I am allowed to pursue any lawful action including criminal avenues and civil proceedings I deem necessary to locate and return the child in pursuit of the Court’s order.

It is a very unusual and rare circumstance for a Solicitor to represent a court in a legal matter. In my duties as the Court’s representative, I have consulted with the Court, the Sheriff and also with the Attorneys representing the lawful parents of Baby V. We all have worked closely together since Monday to bring about the safe return of Baby V home to her parents. That is still our goal and we are working day and night to achieve it.

While there is more than one path for me to take in pursuing the safe return of Baby V to her family, I have refrained from some options at the request of Baby V’s parents and the Court. I have filed motions and received orders from the Court to help bring Baby V home. These items remain under seal, and at this point, and I am not at liberty to discuss them. Similarly, I have consulted with and advised law enforcement regarding the criminal aspects of this case. Under the Special Responsibilities of a Prosecutor Rule (Rule 3.8) I am not at liberty to discuss the law enforcement angles we are pursuing.

The sheriff
Sheriff Al Cannon also addressed the case this afternoon during a brief telephone conversation with The Post and Courier:

We’re working closely with the Solicitor’s Office. We met a couple of days ago. We have all been working diligently ever since on the case. We’re doing everything we can to address the situation, and we’re proceeding as expeditiously as possible. We … have explored every option. But I’m not going to get into any of the specifics.”

August 10: Arrest Warrant Issued For Biological Father Of ‘Baby Veronica’ [News on 6 8/10/13 by Brandi Ball] says “A Nowata man who has been in a bitter battle with a South Carolina adoptive couple over his biological daughter is now wanted by authorities for custodial interference.

The Charleston (S.C.) County Sheriff’s Office said officials in Iowa where Dusten Brown is on military duty are aware of the warrant and Brown is expected to turn himself into military authorities on Sunday.

Dusten Brown lost a bid for his 3-year-old daughter last week in a case that went all the way to the U.S. Supreme Court. He failed to transfer custody of the child this week as ordered by a South Carolina court.

Veronica’s adoptive parents — Matt and Melanie Capobianco, of South Carolina — raised Veronica for two years before Dusten Brown gained custody. Their adoption of Veronica has been finalized in South Carolina and they were to meet with Veronica and Dusten Brown on Sunday. A judge said Dusten Brown skipped the mandatory meeting, and did not send a proxy in his place, so he was ordered to immediately hand the girl over to the Capobiancos.

Dusten Brown is in Iowa, finishing up a three-week training stint with the Oklahoma National Guard. The plan was one where the Browns and Capobiancos were to work together to ease the change of custody on the child, meeting over several days so Veronica could see their cooperation.

According to the transition plan, Dusten Brown was to use a proxy to manage during the days of transition if he was not able to come.

“This would be someone whom Veronica knows and who Dusten is comfortable having in his home. This could be a friend, relative or community member Veronica is familiar with,” the transition plan states.

Veronica is still in Oklahoma and is staying with the Brown family.

“She’s unlawfully being kept from us,” Melanie Capobianco said earlier this week. “What would any parent do in that situation?”

The U.S. Army has said it will not interfere in the case on Dusten Brown’s behalf because it involves custody matters.

In a Facebook post Saturday morning, Robin Brown said her husband is expected to be arrested and a warrant has been issued. A spokesperson for the Cherokee Nation confirmed Robin Brown posted the comments, but at the moment, the tribe could not reveal further details.

“Since it is a felony there is nothing that the Army can do to stop [an arrest],” Robin Brown wrote. “Iowa is going to enforce it so they will arrest him.”

The Capobiancos had been trying to adopt 3-year-old Veronica since her birth. They raised the girl for the first two years of her life, but Veronica moved to Oklahoma in 2011 after the South Carolina Supreme Court ruled that the 1978 Indian Child Welfare Act, favored her being raised by Dusten Brown, who is a member the Cherokee Nation.

In a 5-4 opinion in June, the U.S. Supreme Court overturned that decision and said Dusten Brown was not entitled to custody of the child based on the Indian Child Welfare Act. The high court said it could not allow a biological American Indian father to abandon his child in utero and refuse any support for the birth mother, then “play his ICWA trump card at the eleventh hour to override the mother’s decision and the child’s best interests.”

After Veronica’s adoption by the Capobiancos was ruled final and a seven-day transition plan put in place, Dusten Brown issued a statement saying he would not “voluntarily” allow his child to be put through what said would be feelings of grief, loss and fear by moving to South Carolina.

The U.S. Supreme Court issued a brief order Aug. 2, turning away a final request from Dusten Brown and upholding the adoption and transition plan as final.

When Dusten Brown missed the Sunday meeting, a South Carolina judge demanded immediate transfer.

The child’s birth mother — Christy Maldonado, of Bartlesville — last month sued U.S. Attorney General Eric Holder seeking a declaration that parts of the Indian Child Welfare Act are unconstitutional. Maldonado said the law considers race in determining with whom a child should live and therefore violates equal protection provisions.

The Supreme Court ruling from June noted that the ICWA was designed to counteract the unwarranted removal of American Indian children American Indian families. According to the majority opinion, because the biological father didn’t seek custody of Veronica until several months after her birth, the law doesn’t apply in this case.

Maldonado has said she supports Veronica’s adoption by the Capobiancos.

The high court has said Dusten Brown didn’t provide financial support for Maldonado during or after pregnancy and that he relinquished his parental rights to Veronica. Brown claims he thought he was giving full custody to Maldonado, not giving up his parental rights.

The Capobiancos have said they won’t close the door on Veronica’s relationship with her relatives in Oklahoma.

“I’m open to that until the very end,” Melanie Capobianco said. “We hope, in the future, that there can be contact and all the people who love her can be a part of her life.”

Lori McGill, the attorney for Veronica’s birth mother, told Charleston CBS affiliate WCSC on Saturday that Veronica is now the victim of a felony kidnapping.

“The Browns have held her unlawfully for almost a week,” McGill said in an email. “I assume law enforcement will take appropriate measures to quickly return her to her parents in South Carolina.”

Amanda Clinton, a spokesperson for the Cherokee Nation, said the impending arrest of Dusten Brown is outrageous.

“It is morally reprehensible, and legally questionable, that South Carolina would take these measures when all parties involved were well aware of Dusten Brown’s legal obligation to complete National Guard duty,” Clinton said in a statement. “The attorneys, the courts and the adoptive couple in this case were keenly aware of Dusten’s commitment, but clearly chose to ignore it. This case is still not yet fully litigated. So to take these steps when there are pending legal actions in South Carolina, Oklahoma and Cherokee Nation courts is appalling. Not only is the adoptive couple asking this child be ripped from her father while he is serving our country, they are also endangering his military career in the process. This is outrageous conduct.””

August 12: Brown’s whereabouts unknown; Tribal hearing set for Monday [ABC News 4 8/12/13 ] says “Officials with the Cherokee Nation said Sunday evening that they do not know where Dusten Brown is currently located, but said a hearing with the tribal council had been scheduled for 9 a.m. Monday.

Amanda Clinton, a spokeswoman for the Cherokee Nation, said she did not know what the hearing’s focus would be, but said she expected the details to be sealed.

Two days after Charleston County detectives obtained an arrest warrant for Dusten Brown, the biological father of 3-year-old Veronica, he was expected to turn himself in to authorities in Oklahoma.

However, that failed to happen.

According to a report from Tulsa World, Brown requested permission to leave training in Iowa after the Cherokee Nation issued a subpoena Saturday night. A commanding officer told the newspaper he would not have to return to the training exercise.

It remains to be seen if Cherokee Nation officials will turn Brown over to Charleston County deputies for extradition back to the Lowcountry during Monday’s hearing, or if Oklahoma law enforcement will find and detain Brown before the hearing.

In Cherokee County, where the hearing is set to take place, deputies told Tulsa World that they were not actively looking for Brown, but said he would be treated like anyone else with an outstanding felony warrant.

A base official at Camp Dodge in Iowa, where Brown was stationed for a month-long training exercise, said the Oklahoma National Guard revoked Brown’s order to attend military school in Iowa and has directed him to report to Oklahoma.

The official did not know if Brown was still in Iowa.

The official said Brown’s class was scheduled to report for duty at 8 a.m. at Camp Dodge on Sunday but did not know if he had done so.

The warrant for Custodial Interference is a result of Dusten Brown’s failure to transfer custody of Veronica, as ordered by the 9th Judicial Circuit of Family Court issued on July 31 and Aug. 1, officials said.

On Sunday, the James Island adoptive couple’s attorneys released a statement through their spokeswoman, Jessica Munday, saying that the situation the two sides currently face is not complicated and shows that Matt and Melanie Capobianco should not have given up Veronica 19 months ago when a South Carolina court ordered it.

“We now have a situation where Cherokee Nation officials appear to be actively assisting an ongoing felony, because they disagree with the final outcome of litigation in which they have participated in South Carolina and the United States Supreme Court over the last three years,” the statement reads.

The statement says the only thing an Oklahoma court will be considering is whether Brown and those helping Brown will be considered criminals, speculating that he would move from state to state until all other states have sided with the Capobiancos.

“And then maybe he should get more process in Germany, or Switzerland,” the statement reads.

“Those who have physical control of the child are also actively assisting a felony — including Robin Brown — who has declared that she will refuse to reveal Veronica’s whereabouts to law enforcement and continues to vow not to comply with the law.”

Munday says Matt and Melanie Capobianco plan to offer another statement early Monday morning in their James Island neighborhood.

“This statement is in response to the current developments regarding Veronica’s birth father, Dusten Brown of Nowata, Okla, and the warrant for his arrest and his failure to turn himself in,” Munday said via email.

According to a statement from the Charleston County Sheriff’s Office, officials reached out to the Army National Guard and Brown had plans to surrender on Sunday. Officials said once he is arrested, the extradition process to return him to Charleston will begin.

Brown’s wife, Robin, told Tulsa World that she had joined her husband in Johnston, Iowa, for his National Guard training. Tulsa World reports Dusten Brown spent Saturday off the base, which is why he did not turning himself in Saturday night.

They have plans to fight extradition, Robin Brown said.

“Not only is the adoptive couple asking this child be ripped from her father while he is serving his country, they are also endangering his military career in the process,” Amanda Clinton, a spokeswoman for the tribe, told the newspaper. “This is outrageous conduct.”

Clinton went on to call the issuance of an arrest warrant morally reprehensible and legally questionable, saying all parties involved knew Brown was out of state at National Guard Training.

“Just because they get Dusten doesn’t mean they will get Veronica,” Robin Brown told Tulsa World.

Charleston County Sheriff’s Office spokesman Maj. Jim Brady said Friday officials met earlier this week to discuss the case and find a way to move as quickly as possible.

The sheriff’s office and Ninth Circuit Solicitor’s office became involved in the custody battle Monday when a family court judge ordered Veronica returned immediately after the girl, her family and members of the Cherokee Nation failed to appear at the first transitional meeting between Brown and the Capobiancos.

In that first failed meeting, the Capobiancos waited for four hours at the determined location, but no one appeared from the Browns’ side.

Brown argues that he has 20 days file with Oklahoma courts to stop the transfer of custody. He did tell a Tulsa, Okla.,-based newspaper on Thursday that he would comply with court orders.

Both sides have opened up to media in the past week, granting interviews.

In an interview with ABCNews4, the Capobiancos said they wanted to have their adoptive daughter back, but did not want to see something traumatic happen — like law enforcement officers prying her out of her Oklahoma home.

Veronica’s biological father, Dusten Brown, gained custody of Veronica after the South Carolina Supreme Court ruled that he had a prevailing right to claim custody based on the 1968 Indian Child Welfare Act. She was removed from the Capobiancos’ home on the last day of 2011.

Since then, she has been living in Oklahoma and the Capobiancos, along with Christinna Maldonado — Veronica’s birth mother who hand-picked the James Island couple to adopt her daughter — and a host of attorneys, have been fighting to regain custody.

The U.S. Supreme Court in June ruled that Brown’s ICWA-based argument, as well as the South Carolina court’s ruling, was in error and ordered the lower court to re-examine the case without consideration of the 1968 law.

That’s when the South Carolina Supreme Court decided that the Capobiancos should be the adoptive couple and urged the Charleston family court to finalize Veronica’s adoption.

That order led to Sunday’s missed meeting, the latest order to immediately return Veronica, Wednesday’s hearing in Charleston — and now an arrest warrant for Dusten Brown.”

August 12: Baby Veronica’s father expected to appear in tribal court this morning [Tulsa World 8/12/13 by Michael Overall] says “Facing an arrest warrant for not giving Baby Veronica back to her adoptive parents, Dusten Brown remained in an undisclosed location Sunday, after the Oklahoma National Guard released him from training duties.

But he will apparently surface Monday morning, when he has been subpoenaed to appear in Cherokee Nation tribal court for an emergency hearing in Tahlequah.

The hearing was requested by an attorney who has been appointed by the Cherokee courts to represent Veronica’s best interests, officials said. The exact nature of the hearing was not outlined by officials.

Brown, Veronica’s father, has been ordered by a South Carolina family court to return the child to Matt and Melanie Capobianco, the adoptive parents.

Monday’s hearing will likely be closed and all records sealed because it involves a minor child.

Authorities expected to take Brown into custody Sunday morning when he was due to report back to Camp Dodge in Johnston, Iowa, where his National Guard unit has been training this month.

Instead, Brown left Iowa after the Cherokee Nation District Court issued a subpoena Saturday night.

Brown asked his commanders for permission to leave so he could attend the hearing, said Col. Max Moss, a spokesman for the Oklahoma National Guard. He will not be required to return to training, Moss said.

The decision to let him leave had nothing to do with the outstanding arrest warrant, the Guard spokesman said. “We’re staying neutral,” he said.

Authorities in Charleston, S.C., told the Tulsa World that they are working with law enforcement in Oklahoma to locate and apprehend Brown.

But it will be up to local authorities to decide how to handle Brown’s appearance Monday, said Maj. Jim Brady, a spokesman for the Charleston County Sheriff’s Office.

In Oklahoma’s Cherokee County, where Tahlequah is located, deputies were not actively searching for him but would treat him “like any other suspect” with an outstanding felony warrant, said Undersheriff Jason Chennault.

The Sheriff’s Office in Nowata County, an hour north of Tulsa where Veronica has lived with her father for the past 19 months, declined to comment Sunday.

Brown is wanted for “custodial interference” after he failed to bring his 3-year-old daughter to South Carolina to begin a transition of custody to the adoptive parents.

The charge carries up to five years in prison.

South Carolina could also seek criminal charges against other members of the Brown family, including his wife, Robin, according to a statement from attorneys who represent the adoptive parents.

Brown argues that his legal options have not been exhausted, with hearings scheduled in Oklahoma and Cherokee courts.

But “the only thing that the contemplated ‘Oklahoma proceedings’ will determine is whether Mr. Brown and those assisting him are also criminals under Oklahoma law, rather than just under South Carolina law,” according to the adoptive parents’ attorneys.

“Mr. Brown’s (pending) arrest is not surprising,” the statement says. “It is absolutely necessary to ensure that the rule of law is followed and a little girl is returned to her parents. Those who have physical control of the child are also actively assisting a felony – including Robin Brown.”

Brown originally had not been due back in Oklahoma until Aug. 21.

He has until Aug. 23 to request a hearing in Oklahoma to contest South Carolina’s court order to return Veronica.

Meanwhile, a Cherokee court granted temporary guardianship to Brown’s wife and parents while he was out of state with the National Guard.

The tribal court was going to wait until next month to consider extending that guardianship, but Monday’s emergency hearing might preempt that timetable.

Brown won custody of his daughter in December 2011 after a two-year custody battle with the Capobiancos, who adopted her at birth from Brown’s ex-fiancee.

But the U.S. Supreme Court ruled in June that South Carolina had misinterpreted federal law in awarding him custody and sent the case back for reconsideration.

South Carolina has since awarded custody to the Capobiancos again. And a judge ordered last week that Brown or a “proxy” return Veronica immediately.

Brown is challenging South Carolina’s jurisdiction, since his daughter has lived with him in Oklahoma for the past 19 months.

The Cherokee Nation also claims jurisdiction over the case because Brown and his daughter are members of the tribe.”

August 12/Dusten turns himself into Sheriff in Oklahoma instead of attending closed hearing. Matt Capobianco needs to shut it. He is delusional if he thinks she is going to bond to them especially now that Dusten has been arrested.

“The biological father of Baby Veronica has turned himself in to Oklahoma authorities, according to a Cherokee Nation official.

Dusten Brown, the 3-year-old girl’s biological father, faced an arrest warrant to return the child to her adoptive parents, who live near Charleston, S.C., and raised Veronica for the first 27 months of her life. Brown was expected to be on National Guard duty in Iowa until Aug. 21 but was released from his training duties to return to Oklahoma after being subpoenaed to appear in Cherokee Nation tribal court this morning.

Chrissi Nimmo, Assistant Attorney General for the Cherokee Nation, confirmed that Brown did not attend the hearing and turned himself in to state authorities.

Sequoyah County Sheriff Ron Lockhart said that Brown turned himself in around 10 a.m. but refused extradition to South Carolina.

Brown appeared before Judge Jeff Payton where his attorney requested a fugitive bond and was ordered to appear back in court on Sept. 12. He was released on a $10,000 bond.

Lockhart said that he has been in contact with South Carolina authorities and that as soon as the South Carolina governor signs a warrant, Brown will be taken back to jail and held there until South Carolina can retrieve him.

Lockhart believes, but could not confirm, that Brown is being represented by the firm of Tulsa attorney Clark Brewster.

The Cherokee Nation’s emergency hearing this morning was closed and lasted less than hour. Angel Smith, the Cherokee court-appointed attorney representing Veronica’s best interest, left the hearing without comment.

Meanwhile, in a Monday morning press conference across the country, Veronica’s adoptive father said he is willing to go to Oklahoma today to retrieve the child.

Matt Capobianco, the adoptive father, vowed to go to Oklahoma to get his 3-year-old daughter if Oklahoma and federal officials don’t intervene and enforce a South Carolina court order that demands the child be returned to his family.

“I expect for her bags to be packed and for her to be ready and waiting to come home,” Capobianco said, according to a story on the Charleston Post and Courier website. “I expect Oklahoma law enforcement to escort me on the premises where my daughter is said to be held and arrest anyone who attempts to hold her captive.

“The legal game is over and it’s time for our daughter to come home.”

The Cherokee Nation hearing this morning was requested by an attorney who has been appointed by the Cherokee courts to represent Veronica’s best interests, officials said. The exact nature of the hearing was not outlined by officials.

Brown has been ordered by a South Carolina family court to return the child to Matt and Melanie Capobianco.

During a tearful press conference in their James Island, S.C., neighborhood, the Post and Courier reported, the adoptive parents said they feel the “judicial system has been spit on by those holding our daughter.”

Melanie Capobianco, the child’s adoptive mother, said she was concerned for Veronica’s safety and asked of law enforcement: “Where are you?”

The Capobiancos called on various federal and state officials — including FBI Director Robert Mueller, U.S. Attorney General Eric Holder, South Carolina Gov. Nikki Haley and Oklahoma Gov. Mary Fallin to intervene on their behalf — according to the Post and Courier story. The Capobiancos said they have done everything by the rules, abided by the legal process and now it is time for Brown and his family to do the same.

“No more delays. No more excuses,” Matt Capobianco said, according to the Post and Courier. “Our daughter has been kidnapped and I expect the situation to be treated as such.”

“Gov. (Nikki) Haley is working closely with law enforcement, the solicitor’s office, the state of Oklahoma, and the family on this case. Our goal is to do all we can to get Veronica back home safely,” said Haley spokesman Doug Mayer.

Authorities expected to take Brown into custody Sunday morning when he was due to report back to Camp Dodge in Johnston, Iowa, where his National Guard unit has been training this month.

Instead, Brown left Iowa after the Cherokee Nation District Court issued a subpoena Saturday night.

Brown asked his commanders for permission to leave so he could attend the hearing, said Col. Max Moss, a spokesman for the Oklahoma National Guard. He will not be required to return to training, Moss said.

The decision to let him leave had nothing to do with the outstanding arrest warrant, the Guard spokesman said. “We’re staying neutral,” he said.

Authorities in Charleston, S.C., told the Tulsa World that they are working with law enforcement in Oklahoma to locate and apprehend Brown.

But it will be up to local authorities to decide how to handle Brown’s appearance Monday, said Maj. Jim Brady, a spokesman for the Charleston County Sheriff’s Office.

In Oklahoma’s Cherokee County, where Tahlequah is located, deputies were not actively searching for him but would treat him “like any other suspect” with an outstanding felony warrant, said Undersheriff Jason Chennault.

The Sheriff’s Office in Nowata County, an hour north of Tulsa where Veronica has lived with her father for the past 19 months, declined to comment Sunday.

Brown is wanted for “custodial interference” after he failed to bring his 3-year-old daughter to South Carolina to begin a transition of custody to the adoptive parents.

The charge carries up to five years in prison.

South Carolina could also seek criminal charges against other members of the Brown family, including his wife, Robin, according to a statement from attorneys who represent the adoptive parents.

Brown argues that his legal options have not been exhausted, with hearings scheduled in Oklahoma and Cherokee courts.

But “the only thing that the contemplated ‘Oklahoma proceedings’ will determine is whether Mr. Brown and those assisting him are also criminals under Oklahoma law, rather than just under South Carolina law,” according to the adoptive parents’ attorneys.

“Mr. Brown’s (pending) arrest is not surprising,” the statement says. “It is absolutely necessary to ensure that the rule of law is followed and a little girl is returned to her parents. Those who have physical control of the child are also actively assisting a felony – including Robin Brown.”

Dusten Brown has until Aug. 23 to request a hearing in Oklahoma to contest South Carolina’s court order to return Veronica.

Meanwhile, a Cherokee court granted temporary guardianship to Brown’s wife and parents while he was out of state with the National Guard.

The tribal court was going to wait until next month to consider extending that guardianship, but Monday’s emergency hearing might preempt that timetable.

Brown won custody of his daughter in December 2011 after a two-year custody battle with the Capobiancos, who adopted her at birth from Brown’s ex-fiancee.

But the U.S. Supreme Court ruled in June that South Carolina had misinterpreted federal law in awarding him custody and sent the case back for reconsideration.

South Carolina has since awarded custody to the Capobiancos again. And a judge ordered last week that Brown or a “proxy” return Veronica immediately.

Brown is challenging South Carolina’s jurisdiction, since his daughter has lived with him in Oklahoma for the past 19 months.

The Cherokee Nation also claims jurisdiction over the case because Brown and his daughter are members of the tribe. ”

Cherokee official: Baby Veronica’s biological father in custody

[Tulsa World 8/12/13 by Michael Overall]

Update 34: Dusten bonds out of jail aftr posting $10,000.

We previously posted NICWA fact check  about the inaccuracies in the Media. See it in this 7 page pdf. A similar fact check has been published at Keep Veronica home website

“Dusten Brown paid his copy0,000 bail and has been released. He turned himself into authorities at a 9 a.m. tribal court hearing today in Tahlequah, Oklahoma.

Oklahoma State authorities arrested Veronica’s birth father, Dusten Brown, on a “custodial interference” charge filed by the pre-adoptive couple, Matt and Melanie Capobianco in South Carolina, in connection with his failure to appear in a South Carolina courtroom August 4 for a scheduled four-hour visitation to begin his daughter Veronica’s transition to the Capobiancos in James Island, a town in Charleston, South Carolina. Brown was unable to appear at the August 4 visitation, as he was on active duty in Iowa with his Oklahoma National Guard unit. The Oklahoma National Guard approved his emergency leave from Iowa to attend today’s tribal court hearing.

The felony warrant for “custodial interference” carries a five year sentence and fines at the discretion of the court.
Dusten Brown’s Charleston-based attorney Shannon Jones, called the situation “a real-life tragedy,” reported the PostandCourier.com.

“This is not what adoptions are supposed to be,” she said. “What in the world will Veronica think of her adoptive parents when she learns they … put her father in jail?”

Veronica, who turns 4 next month, has lived with her biological father since she was 18 months old

Dusten Brown Posts 10K Bond, Released

[Indian County Today Media Network 8/12/13]

“A South Carolina sheriff says he is working with authorities to figure out how to bring a Cherokee girl from Oklahoma to her adoptive parents.

Charleston County Sheriff Al Cannon said Monday he is also working with state and federal authorities to bring biological father Dusten Brown to South Carolina to face charges.

The 3-year-old named Veronica has been living with Brown since 2011, but courts have finalized her adoption by a Charleston-area couple.

Brown was charged with custodial interference after he failed to appear at a scheduled meeting Aug. 4.

Cannon says he doesn’t know Brown’s whereabouts. Cherokee Nation spokeswoman Amanda Clinton said Veronica is in the care of her paternal grandparents and Brown’s wife.

Brown’s attorney says his client is caught between competing jurisdictions.”

“Dusten Brown turned himself in about 10 a.m. Monday in Sequoyah County in far eastern Oklahoma, Sheriff Ron Lockhart said. Lockhart said Brown appeared before a judge but refused extradition without a governor’s warrant from South Carolina, where the adoptive parents live.”

“Brown paid the $10,000 fugitive bond and has another court hearing in 30 days, Lockhart said.

“He was with his attorney and basically, since he made bond, he is free to go,” Lockhart said. He also said he has been in contact with law enforcement in South Carolina”

“A spokesman for South Carolina Gov. Nikki Haley said the governor is working closely with law enforcement, the solicitor’s office, the state of Oklahoma and the family.

“Our goal is to do all we can to get Veronica back home safely,” Doug Mayer said.

Veronica is currently in the care of her paternal grandparents and Dusten Brown’s wife, Robin Brown. The three had been named temporary guardians of the girl by a Cherokee Nation court while Dusten Brown was in Iowa attending training for the Oklahoma National Guard.”

Authorities Working to Bring Girl, Father to SC

[ABC News 8/13/13 by Meg Kinnard and Kristi Eaton]

“Brown was scheduled to appear at the Cherokee County Courthouse, but a judge there declined to take part because of all the attention. Brown instead went an hour away and turned himself in to Sequoyah County officials.

FOX23’s Dontaye Carter was there as Brown walked into the courtroom and as he left after posting his $10,000 bond.

“Dusten, do you think you should’ve been arrested?” asked Carter.

“No comment,” replied Brown.

Brown had nothing to say, but supporters in front of the Cherokee Nation Courthouse couldn’t say enough.

Kathleen Weso-Bauer told FOX23 she drove from Arkansas and held up a sign to show her support.

“If a father decides he wants to step in and raise that child, that is his option. Nobody has a right to stop him from doing that,” she said.

A South Carolina judge issued an arrest warrant on custodial interference when Brown missed a meeting to bring Veronica to her adoptive parents.

The young girl has been in Oklahoma since 2011, when federal courts ruled in favor of her being raised by her biological father because of his Cherokee heritage. The U.S. Supreme Court reversed that ruling.

“There’s a reason ICWA was in place to protect our Indian children and to make sure our children stay with tribal communities,” said Weso-Bauer.

Sources close to this case say the Cherokee Nation and Brown will have 90 days to set a date on the extradition hearing.”

Father bonds out, custody dispute continues

[FOX 23 8/12/13]

“Dan Long with the Sequoyah County Sheriff’s Office says Dusten Brown was released at 11:11 a.m. after posting a $10,000 fugitive bond — less than an hour after he was booked at 10:23 a.m.

Long says Brown was picked up by the Cherokee Nation Marshal Service, which is based in Tahlequah.  Earlier, Cherokee Nation Attorney General Chrissi Nimmo said Brown turned himself in to Oklahoma authorities.

An arrest warrant was issued for Brown last Friday for failure to transfer Veronica to her adoptive parents, Matt and Melanie Capobianco.

RELATED: Arrest warrant issued for biological father of ‘Baby Veronica’ (http://bit.ly/11ULdsh)”

Dusten Brown, biological father of ‘Baby Veronica’, posts $10,000 bail, released on bond

[KJRH 8/12/13]

Update 35/August 13, 2013

More pictures can be seen at ‘This is my daughter, it isn’t a yoyo’: Baby Veronica’s biological father defiantly refuses to return her to pleading adoptive parents [Daily Mail 8/13/13 ]

See Dusten and Robin and (separately) Capobiancos in this Anderson Cooper video http://ac360.blogs.cnn.com/2013/08/12/arrest-in-baby-veronica-custody-battle/?hpt=ac_bn1 In one part, the Capobiancos say that they fear for Veronica’s “safety” in the statement issued on August 12 yet in the over the weekend video they claim to understand that Dusten loves her.

Trace A. Demeyer gives a great commentary and extremely important perspective on this case as her dad is a Native American and her mother white. read it at The Baby Veronica Case: David vs. Goliath

Update 36/August 15, 2013

“Cherokee Nation citizen Dusten Brown will not be extradited to South Carolina just yet.

On Tuesday afternoon, Gov. Mary Fallin announced that she would not immediately sign off on an extradition order from Gov. Nikki Haley. Brown is wanted in South Carolina for custodial interference in the ongoing custody dispute over his three-year-old daughter Veronica after the two did not attend a court-ordered visitation with an adoption investigator and Matt and Melanie Capobianco, the non-Native couple from James Island, S.C., who were awarded custody of the child last month.

Through a spokesman, Fallin said she will not act on the order until after Brown’s hearing in Sallisaw, Okla., on Sept. 12, but encouraged the two sides to reach a peaceful solution as soon as possible. [FLIP]

“As a mother, my heart goes out to Veronica, who has been placed in a terrible situation,” she said. “I can also imagine the pain that both her adopted and biological parents are feeling.

“As governor, my job is to ensure the law is upheld. My legal staff and I are currently reviewing the request for rendition of Mr. Brown to South Carolina. Should that request adhere to the letter and spirit of the law, I will sign it. My hope, however, continues to be that sending Mr. Brown to face criminal charges in South Carolina is unnecessary.”

After receiving permission to leave National Guard training in Johnston, Iowa, Brown turned himself in to the Sequoyah County, Okla., Sheriff’s Department Monday morning and is currently out on a $10,000 fugitive bond after refusing to consent to extradition to South Carolina. Law enforcement officials in Sequoyah County and in Nowata County, where Brown lives, have publicly said they will not extradite the Brown without a warrant signed by both Haley and Fallin.

Fallin has 90 days to act on the order. Under South Carolina statute, Brown could face up to five years in prison if convicted of custodial interference.”

Oklahoma won’t sign off on Dusten Brown’s extradition order until hearing

[Native American Times 8/15/13 by LENZY KREHBIEL-BURTON]

Capobiancos go to Oklahoma “seeking compromise” Oklahoma governor flip-flops on extradition issue

““We made the trip to Oklahoma to get our daughter,” Matt Capobianco said at a news conference in downtown Tulsa on Wednesday. “Veronica will be coming home, but if there is going to be some thoughtful solution that continues to involve all who love her, then this is the time.”

“The girl, under a Cherokee Nation court order, has been with the family of Dusten Brown, her biological father. The tribe’s chief urged patience.

“The Capobiancos have requested the Cherokee Nation and Dusten Brown to follow the South Carolina court’s order, but they forget that Dusten Brown has the same rights to have his arguments heard before our Oklahoma courts and Cherokee Nation Tribal Court,” Chief Bill John Baker said. “The Cherokee people throughout time have stood our ground and for the rights of our people, and this is no different. We will continue to stand by Dusten and his biological daughter, Veronica, and for what is right.”

Oklahoma Gov. Mary Fallin urged the families to get together and talk — even threatening Brown with extradition to South Carolina on a charge of custodial interference if he was “unwilling to cooperate.” [FLOP]

In a statement distributed later Wednesday, Brown’s lawyers said an Oklahoma court should determine what’s best for the child.

“The South Carolina court’s determination of this issue was based upon facts as they existed almost two years ago. We are fully in favor of a present day determination of Veronica’s best interest to be made by a court in the state where Veronica has lived for the past 19 months,” lawyers Clark O. Brewster and Robert R. Nigh Jr. wrote.

They said they would contact the Capobiancos lawyer to see if the families could reach a quick resolution.”

SC couple seeking deal in Cherokee custody case still resolute: ‘Veronica will be coming home’

[Washington Post 8/14/13 by Associated Press]

“This morning, after a downtown Tulsa press conference in which Matt and Melanie Capobianco made an emotional plea for the return of Veronica Brown to them, Oklahoma Governor Mary Fallin reversed her position from yesterday and issued a threat to Oklahoma native Dusten Brown in signing an extradition warrant from South Carolina unless Brown “cooperated” with the Capobiancos.

Only yesterday, Fallin issued a statement to the Associated Press saying that she would not extradite Dusten Brown because “he has a right to his day in court.”

“What Fallin may not realize, or doesn’t care to realize is that Dusten Brown, prior to their latest round of playing the victim, had offered them shared custody every which way from Sunday—and they flat out rejected every single offer,” said an insider. “He offered them summers and holidays, they said no. He offered them the school year and he get the summers, they said no. And now here they are on our doorstep whining about cooperation when they have rejected every single offer behind the scenes. They wanted all or nothing, and he’s simply not going to do that. So here we are. It’s disgusting.”

It is widely acknowledged that during her tenure she has lost a lot of political ground with Oklahoma’s Indian tribes, who are collectively one of the largest employers in the state with billions in annual revenues and thousands of jobs. They comprise the second largest tribal population in the country after California.

“Mary Fallin has failed to be a good partner to her tribal constituents and this is just more proof that she is weighing her national aspirations with selling out and armtwisting her own citizens to pander to a foreign jurisdiction,” said one tribal leader who asked for anonymity because of the sensitivity of the case. “She’s trying to have it both ways, but this is the deal: Is she going to stand up and support the American Indian people of Oklahoma and allow Dusten Brown his day in court, or is she going to be subservient to another state and allow native people to continue to be pawns in a political and judicial system that is not a friend to Indian tribes? Today’s action is a politically calculated, 180-degree turn that will not go unnoticed when the next fundraising cycle comes around.”

Fallin’s office did not respond to requests for comment from Indian Country Today Media Network. Cherokee Nation Principal Chief Bill John Baker also issued a statement voicing his continued support for the Brown family and their right to due process.

“The Capobiancos have requested the Cherokee Nation and Dusten Brown to follow the South Carolina court’s order, but they forget that Dusten Brown has the same rights to have his arguments heard before our Oklahoma courts and Cherokee Nation Tribal Court,” Cherokee Principal Chief Bill John Baker said in a statement issued after the press conference. “We respectfully ask the Capobiancos to allow that due process.”

Oklahoma Governor Caves; Now Ready to Extradite Baby Veronica’s Dad

[Indian Country Today Media Network 8/14/13 by Suzette Brewer]

“he governor, however, responded to Wednesday’s press conference with a different tone.

“Mr. and Mrs. Capobianco deserve an opportunity to meet with their adopted daughter. They also deserve the chance to meet with Mr. Brown and put an end to this conflict. It is important for Veronica’s sake that Mr. Brown and the Capobianco family resolve this matter quickly and grant closure to all parties. If Mr. Brown is unwilling to cooperate with these reasonable expectations, then I will be forced to expedite his extradition request and let the issue be settled in court.”

Shortly after Fallin released her statement, attorneys for Brown said they were willing to reach out to the Capobiancos to find a resolution:

“We are in agreement with the Capobiancos that the best interest of Veronica is the most important consideration. The South Carolina court’s determination of this issue was based upon facts as they existed almost two years ago. We are fully in favor of a present day determination of Veronica’s best interest to be made by a court in the state where Veronica has lived for the past 19 months.

We will reach out to counsel for the Capobiancos to see if a resolution in Veronica’s best interest can be reached by the parties. In that way, we hope the present impasse can be quickly resolved.”

“It is unclear whether Matt and Melanie Capobianco, the James Island, S.C., couple attempting to adopt the child, have actually met with the girl and if so, how often, since arriving in Oklahoma two weeks ago.

A motion is now on file to suspend any visits between a non-Native South Carolina couple and the three-year-old Cherokee child they have been attempting to adopt for almost four years.

According to docket sheets posted Sunday on the On Demand Court Records system, Angel Smith, the court-appointed attorney for Cherokee Nation citizen Veronica Brown, filed the motion Friday in Cherokee County District Court, along with a request for a hearing to revisit the matter.

Smith was appointed in Cherokee County District Court on Aug. 19 after representing the child in Cherokee Nation District Court for almost a month. She is also Brown’s representative in a federal lawsuit filed last month by the Native American Rights Fund, the National Indian Child Welfare Association and the National Congress of American Indians.

It is unclear whether Matt and Melanie Capobianco, the James Island, S.C., couple attempting to adopt the child, have actually met with the girl and if so, how often, since arriving in Oklahoma two weeks ago. The Capobiancos were awarded custody of the child last month by a South Carolina family court judge, but the order has not been enforced in Oklahoma.

Oklahoma Gov. Mary Fallin has threatened to sign off on an extradition warrant for Veronica’s biological father, Dusten Brown, if he did not allow the couple to see the girl. Brown is wanted in South Carolina for custodial interference after missing a court-ordered visitation with the Capobiancos and an adoption investigator earlier this month while he was at National Guard training in Iowa. He has since turned himself in to Sequoyah County law enforcement and has a hearing scheduled for Sept. 12 in Sallisaw.

Along with Smith’s motions, the Capobiancos have filed their own motions with the court objecting to the appointment of a guardian ad litem to represent Veronica Brown’s best interests during the court proceedings, as well as their objection to Smith’s appointment as the three-year-old’s lawyer.

Additionally, special judge Holli Wells entered an order of recusal Friday, excusing herself from future proceedings in the case.

Thanks to a gag order issued by both the Cherokee County District Court and the Cherokee Nation District Court and a seal on all related documents, no details are available about the flurry of Friday filings other than the docket sheet line items. Earlier this month, the two sides agreed to mediation, but it is unclear whether those talks have started and if so, how they have progressed. It is also unclear what, if any, challenges were filed in Oklahoma to the South Carolina family court’s order granting custody to the Capobiancos. Under Oklahoma statute, Brown and his attorneys had until Friday to do so.”

Adoption Truth blog says that the birthmother’s lawyer contacted the blogger via facebook about the case, trying to sway opinions. See the post and the blogger’s great questions to the lawyer at this link.

“Cherokee Nation Principal Chief Bill John Baker never mentioned the Baby Veronica case at any point during his State of the Nation address on Saturday.He didn’t need to.

Cherokee citizen Dusten Brown’s fight for custody of his biological daughter was on the minds – and, in some cases, on the T-shirts – of those on hand for the focal point of the annual Labor Day weekend Cherokee National Holiday.

“The only way to maintain our tribal identity is through our children,” said Tahlequah resident Ryan Mackey, who was wearing a “Standing Our Ground for Veronica Brown” T-shirt. “She’s come to represent that.”

Paula Spears of Tahlequah wore a shirt with a dollar bill pinned to it. The phrase “Keep Veronica Home” was written on the bill with magic marker, an idea spawned by a local merchant who wanted to keep the support for Brown circulating in the community.

“It’s a movement,” Spears said. “We’re not going to stop. We’re not going to quit.”

Last Monday supporters held a rally at Cherokee Nation headquarters for Brown. Before Baker spoke during Saturday’s program at the Courthouse Square, there was a passing mention from the podium recognizing Brown as one of the recipients of a 2013 Cherokee National Medal of Patriotism Award.

However, with a gag order in place, Baker’s State of the Nation address steered clear of the controversial topic.

Instead, the chief adhered to the 2013 Cherokee National Holiday theme of “Homes, Health and Hope.”

Baker said, through a program in which Cherokees are building homes for Cherokees, “we’re changing lives by bringing peace and security to single mothers, working families and, most importantly, Cherokee children.”

The chief said 40 Cherokee families are living in new homes that have been constructed through the initiative with 50 more residences on pace to be completed by the end of 2013.

Baker said his focus on the health of tribal members is longstanding.

“No Cherokee will get second-class care in our world-class health care system,” Baker vowed.

He said the tribe is investing about $100 million in casino profits to continue to improve health care for the Cherokee people, plans which include replacing or renovating several tribal health facilities over the next few years and reducing wait times for patients.

Baker also said, “I’m proud that we are bringing hope.

“Hope for a better tomorrow,” Baker said. “Hope for a better future. Hope for our children to live and prosper and raise their families so they are proud of our heritage.”

However, the battle over one child in particular has cast a spotlight on the importance of that heritage.

“The children of the Nation are the future,” Spears said. “The tribe has so much to offer the children.”

Spears said she also has sympathy for Veronica’s adoptive parents from South Carolina but said she believes that Dusten Brown will ultimately prevail in the legal battle.

“This one’s staying home,” she said.

Mackey, who said he is a longtime friend of Brown’s, said he isn’t against the concept of adoption generally. However, he said that for too many years Native American children were routinely placed in non-tribal home environments.

“As an Indian person, I believe our culture is really important,” Mackey said. “It breaks my heart to think she might have to go back (to South Carolina.)”

Cherokee tribe members show support for Dusten Brown at holiday
[Tulsa World 9/1/13 by David Harper]

Update 41/September 4, 2013

It is confirmed that Oklahoma Supreme Court issued a stay. Dusten does not have to give custody to the Capobianco/Duncans as Oklahoma proceedings are ongoing. There was a hearing on September 3, 2013 that was closed.

“A 3-year-old Native American girl known as “Baby Veronica” will not immediately be transferred from the custody of her Oklahoma biological father to a South Carolina couple who adopted her, the Oklahoma Supreme Court has ruled.The ruling, which was made on Friday although the information only became available on the court website on Tuesday, means that Veronica will stay for now with her biological father, Dusten Brown, who is a member of the Cherokee Nation.

Another hearing at the Oklahoma Supreme Court is set for later on Tuesday to consider arguments from both sides of the custody dispute. Both Brown and the adoptive parents, Matt and Melanie Capobianco of South Carolina, are expected to attend the hearing. Hearings have been closed to the public and a gag order imposed on details of the court deliberations.”

‘Baby Veronica’ to stay with birth father for now: Oklahoma high court
[Yahoo.com 9/3/13 by Reuters/Heidi Brandes]

“The Capobiancos filed a motion to vacate the stay, according to online court records Tuesday.”

Okla. Supreme Court issues stay to keep Cherokee girl with biological father in custody case[Go Upstate.com 9/3/13 by Associated Press/Kristi Eaton]

Update 42/September 5, 2013

Oklahoma Governor Mary Fallin signs extradition order. “Sequoyah County Judge Jeff Payton, who ordered him released until an extradition hearing on Oct. 3. Brown was released on bail after he was arrested for a second time.” Originally the extradition hearing was to be September 12. So, practically speaking, he has 3 weeks MORE.

Lorraine Dusky gives a great summary on today’s items at http://www.firstmotherforum.com/2013/09/baby-veronica-brown-released-on-bail.html

“Sequoyah County Sheriff Ron Lockhart called the governor’s office to seek advice on releasing Brown, he told the Tulsa World. About 30 minutes later, the office advised him to follow the local court’s direction and allow Brown to leave on bail.

“It’s very unusual,” Lockhart said, explaining that most suspects remain in jail until the extradition hearing when they’ve been arrested on a governor’s warrant. “I’ve never seen this before.”

Brown had made arrangements Wednesday night to surrender at the jail and was cooperative, Lockhart said.

Payton told the Charleston Post and Courier that Brown indicated his intent to challenge the governor’s warrant and he is entitled to be released on bond while he does so.

“Most folks don’t object to a governor’s warrant. They agree to it. But that’s not the case in this instance,” the judge told the paper, adding that Brown “has a constitutional right to a bond.”

Alex Weintz, a spokesman for Fallin, reiterated on Thursday the governor’s belief that the dispute should not go on indefinitely, for the sake of the young girl, the Associated Press reported.

“This whole thing is a farce,” Brown’s attorney, Clark Brewster said. “I can’t understand why the governor of this state would sign such a document.”

Brown is waiting for the state Supreme Court to rule on an appeal of the custody order, and “that will provide some direction for where to go next,” Brewster said.

It’s not clear when the Oklahoma Supreme Court will issue a decision. But Thursday afternoon, the justices apparently asked for a copy of the “final decree of adoption” from Nowata County, where South Carolina’s custody decision was validated.

Brewster told the Tulsa World earlier Thursday that Fallin’s signature on the extradition warrant Wednesday does not ensure that Brown will be sent to face a felony complaint of “custodial interference.”

“Fortunately, you cannot be convicted by fiat anymore,” attorney Clark Brewster said. “He’s entitled to a hearing. Obviously, we fully expect that he will not be extradited.”

Brown is accused of “custodial interference” for not taking 3-year-old Veronica to South Carolina to begin a transition of custody to her adoptive parents, Matt and Melanie Capobianco.

But that court order was not final when the arrest warrant was issued and had not been validated by Oklahoma courts, Brewster said.

At worst, he said, it should be addressed as contempt of court in South Carolina, not as felony criminal charges.

Brown’s attorneys had asked for a conference with the governor’s advisers to discuss the legal issues around the warrant, Brewster said. But the conference did not occur, Brewster said, and Fallin signed the extradition warrant Wednesday afternoon.

“Probably,” Brewster said, “she had more conversations with (S.C.) Gov. (Nikki) Haley,” who he said is friends with Fallin.

The governor accused Brown of cutting off negotiations with the Capobiancos and denying them visitations, which have been ordered by Oklahoma courts.

Matt Capobianco threatened to leave with the girl Saturday, when the couple had a scheduled visitation at the Cherokee Nation headquarters, Brewster said.

Cherokee marshals recommended that the visit not take place, Brewster said.

“There was a concern that there would be some act of confrontation that was not going to be good for the parties or for the little girl,” Brewster said. “And that’s why the visit didn’t happen.”

On Thursday, an attorney for the Capobiancos denied that version of events.

“Mr. Brewster’s conveniently-timed accusations are outrageous and false and he knows it,” said Lori McGill, a lawyer for the Capobiancos. “Desperate people do desperate things, and I expect more of the same from Mr. Brewster in the coming days.”

Brown and the Cherokee Nation are appealing the custody decision to the Oklahoma Supreme Court, which should issue a decision soon, Brewster said.”

Baby Veronica case: Dusten Brown released from custody

[Tulsa World 9/5/13 by Michael Overall]

“Clark Brewster, attorney for Dusten Brown, called the allegations by the governor “factually incorrect,” and said that Brown had not only allowed numerous visits between Veronica and the Capobiancos, but he also extended an “open arm” invitation, which they declined.

Further, sources say that Brown was forced to cut off those visits when he learned that the Capobiancos were conspiring to flee the state with Veronica and go back to South Carolina with the girl, thereby putting his daughter’s safety at risk in what has already become a high conflict, unstable situation.”

“Fallin’s spokesman, Alex Weintz, said the governor’s legal staff had communicated with “all parties.” But Brown’s lawyers insist that they attempted to discuss the legalities of the situation with Fallin, but that she refused and issued the order.

“

The events of today, and the events of the last four years should frighten every parent, and more specifically, every single father in Oklahoma,” said Hoskins. “Additionally, Governor Fallin has issued a statement that contains false information about Mr. Brown, knowing full well that [he] is bound by a gag order, cannot respond and defend himself in the media. This is unacceptable and Oklahomans will not forget.”

According to pollsters and campaign trackers in both states, it would appear that Fallin’s sudden move in signing the extradition without due process or factual basis comes with motives that have more to do with party politics than the future of a 4-year-old tribal member in her own state.

”

Okla. Governor Signs Extradition Order; Dusten Brown Turns Himself In

[Indian Country Today Media Network 9/5/13 by Suzette Brewer]

Update 43/September 9, 2013

This was brought to my attention again.Capobiancos used Veronica’s name on a perfume to fundraise for their expenses. See http://sironalabs.wordpress.com/2012/01/10/philanthropy-and-perfumery-2-great-things-that-are-great-together/

Interesting South Carolina commentary on the case: http://www.charlestoncitypaper.com/HaireoftheDog/archives/2013/09/05/the-capobiancos-should-stop-fighting-for-custody-of-baby-veronica

Dusten speaks on Keep Veronica Home website http://keepveronicahome.com/index.php/my-daddy Message pasted below:

“My daughter Veronica is a happy, bouncy, joyful and much-loved child. She is not a baby anymore. She’s a little girl who looks forward to running to greet me when I get home from work, riding with her papa on his tractor and eating her grandmother’s good cooking. She has a big sister she looks up to and adores.

I am not a perfect person. I am a just a regular guy who goes to work every day to support his family and serves in our Army. More than anything, I am like any father who will do everything to make sure my children are loved, provided for, and protected. Like any father, my children are my world. Like any father, I want what is best for my daughter.

All last year, I tried to abide by the court order we were all under to not speak publicly on this case. I understood that it was put in place to protect my daughter’s privacy. To me, she was more important than getting into a public battle, even if it meant not defending myself against all the dishonest things reported about me.

So much has been said about me and the time surrounding my daughter’s birth. I know it’s impossible to try to answer every false detail put out there, but here is the truth: My world was ripped apart when Veronica’s birth mother, Christy, ended our engagement suddenly and shut me out of her life forever.

In December 2008, I got down on one knee and proposed to the love of my life. She accepted with joy. It seemed like one week we were planning a big, outside wedding and celebrating ecstatically the news of our pregnancy, and the next I was receiving a phone call from Christy saying she didn’t know how she was going to pay her bills and she was stressed. I told her I had money saved and not to worry and asked her what she needed. I remember specifically that it shocked me when she told me no, that she had “a plan.” Still, I knew that my military benefits would provide the medical and financial support she needed, so I did everything I could to push the wedding date up.

Always in the back of my mind I was concerned about going to Iraq. I knew there was a possibility that I might not come home. I pushed for marriage because I needed to know they would be OK if something happened to me. She said no. She told me to stop calling her and stop texting her.

But I called. I texted. I begged. I pleaded. I drove four hours and knocked at my ex-fiancée’s door, praying she would answer. I had offered financial support, military benefits, everything I had. When I was told no, I foolishly tried to go along with whatever she asked me to, hoping she would see how willing I was to do whatever it took.

When I did finally hear from her, she started texting me, asking me to sign my parental rights over to her. Every day for a month and a half I got a text asking me that same question. It was a horrible feeling, watching myself being shut off from the woman and daughter I loved so much. I knew I didn’t have a chance to fight her for custody because I was about to leave for Iraq for a year. So after weeks of texts, I said I would sign my rights over, thinking I was agreeing for her to have full custody and she would let me see my daughter.

I still tried to contact Christy in the hopes that she would change her mind about marrying me. After Veronica was born, I tried to contact Christy as did my mother and father wanting to bring gifts we had purchased for Veronica. Still, no answer, no response. My mother told me that maybe I should just give Christy some space. That maybe in time she would come back to me. So I stopped calling Christy, stopped begging her to marry me.

It was painful and confusing. That whole time I did not know why Veronica’s birth mother wanted me out of her life. That whole time I didn’t know about all of the conversations that had been going on with the adoption agency. I didn’t know financial arrangements were being made. I didn’t know that the couple who wanted to adopt my daughter had been told I would give up my rights, that I was a deadbeat dad, that I would not pay child support.

Here is the truth: I am not a deadbeat dad. I did not abandon my daughter. I did not wait to “step up to the plate” until Veronica was 4 months old. I have been at the plate since I rejoiced at the news my fiancée was pregnant. I did not change my mind about how involved I wanted to be with Veronica. I have loved her and wanted her since the moment I knew she was to be my daughter.

My life was turned upside down when I was served with the adoption papers. Stupidly, I thought they were papers doing what we had texted about, giving Christy full custody while I was gone. It was literally the moment I finished signing that the server told me, “You just gave up your baby.” I tried to grab the papers from his hand and he told me if I took them I would go to jail. I hired an attorney right away and gave my father power of attorney to fight for custody of Veronica while I was off at war.

Ever since that day I have been in a legal battle for the right to raise my daughter. Ever since that day I have seen horrible things written about me. I have seen how the public has come to terrible conclusions about me. I’ve accepted that people will do and say anything to win custody of Veronica. But what I can’t accept is that the courts would allow these lies to sway their decisions. Somewhere in their rush to punish me for what they mistakenly think I’ve done, they stopped talking about what is best for my daughter.

The recent decision from the South Carolina Supreme Court has devastated my family. I cannot accept a decision that refuses to even consider what is best for my child. It should never be about what adults want and need; it has to be about Veronica. The Supreme Court has ruled that Veronica’s interests don’t matter. As a father who wants to protect his daughter, I cannot accept that.

I love my daughter with every fiber of being, and I will do whatever is necessary to ensure that Veronica’s interests are given the highest priority as they should be. I will admit that I made mistakes, but not supporting my unborn child and her mother was never my intent. I loved them both and would have done anything for them. I will never stop fighting for my daughter, ever.

My home is simple, but along with my beautiful wife, Robin, who Veronica calls “Mommy,” we have made it full of love. My family is not rich, but we are happy. I make sure Veronica’s days begin and end the same way every day, with me telling her that her daddy loves her, has always loved her, and will never stop loving her.`”

Update 44/September 14, 2013

“Drawing international attention to the ongoing custody battle, a UN official demanded Tuesday that Oklahoma respect Baby Veronica’s “human rights as a child and as member of the Cherokee Nation.”

State and federal authorities should consider Veronica’s best interest before making a final custody decision, said James Anaya, the United Nations special rapporteur on the rights of indigenous peoples.

“Veronica’s human rights as a child and as member of the Cherokee Nation, an indigenous people, should be fully and adequately considered in the ongoing judicial and administrative proceedings that will determine her future upbringing,” Anaya said in a statement from Geneva.

The Oklahoma Supreme Court is considering an appeal from the girl’s biological father, who has been ordered by courts both in Oklahoma and South Carolina to hand the girl over to her adoptive parents.

In June, the U.S. Supreme Court ruled that certain protections of the federal Indian Child Welfare Act did not apply to this case. As noted by the U.N. statement, however, the Supreme Court did not make an ultimate determination about custody.

“Following the Supreme Court decision,” the U.N. statement continues, “a South Carolina state court awarded custody of Veronica to the non-Cherokee couple, but it did so without a determination of whether her transfer away from her Cherokee family would be in her best interests in light of her current situation and Cherokee heritage.”

Turning 4 years old this weekend, Veronica has lived roughly half her life with each family.

“I urge the relevant authorities,” Anaya said, “as well as all parties involved in the custody dispute, to ensure the best interests of Veronica, fully taking into account her rights to maintain her cultural identity and to maintain relations with her indigenous family and people.”

These rights are guaranteed by various international instruments subscribed to or endorsed by the U.S., including the International Covenant on Civil and Political Rights, and the UN Declaration on the Rights of Indigenous Peoples, according to the U.N. statement.

The adoptive parents want to “make sure Veronica knows where she comes from,” including her Cherokee heritage, according to one of their attorneys.

“Mr. Anaya is entitled to his opinion about the outcome of this case,” said Lori Alvino McGill, an attorney in Washington, D.C.“But, fortunately, any further court proceedings about Veronica’s custody are governed by the laws of the United States, including the US Constitution.”

Court-ordered visitations have been going on for weeks, preparing Veronica for a smooth transition back to the adoptive parents, McGill said.

“To be very clear,” she said, “right now, the only violation of Veronica’s rights is happening because Veronica is being unlawfully detained from her only lawful parents — after months of forced separation from them. In this country, we call that kidnapping, whether you are biologically related to the child or not.”

Aug. 30 in Nowata County, District Judge Curtis DeLapp confirmed a court from South Carolina, giving custody to the adoptive parents and demanding that Dusten Brown hand over the girl.

But later that same day, the Oklahoma Supreme Court temporarily blocked the order to give Brown time to appeal the decision.

Matt and Melanie Capobianco arranged a private adoption with Brown’s ex-fiancee and came to Oklahoma for the birth.

Turning 4 on Sept. 15, Veronica has now spent roughly half her life with each family – the first two years with the Capobiancos in Charleston, S.C., and the past two years with the Browns in Nowata, an hour north of Tulsa.”

UN official issues statement on Veronica

[Tulsa World 9/10/13 by Michael Overall]

Update 45/September 21, 2013

Mediation occurred all this week in a Tulsa court room-now the 7th venue for this case. Nothing was resolved after 30 hours.

“In the longest hearing yet since the custody battle moved to Oklahoma, Baby Veronica’s two sets of parents faced off in a Tulsa courthouse for more than six hours Monday.

The case has now moved to seven different courtrooms in half a dozen counties as the justice system tries to decide whether the child will stay in Oklahoma with her biological father or go back to South Carolina with her adoptive parents.

Monday’s hearing, on the sixth floor of a state office building where the Court of Civil Appeals meets in Tulsa, came after the Oklahoma Supreme Court decided Friday to let Dusten Brown and his wife keep the girl for the time being while he challenges a decision to take custody away from him.

The court, however, has only temporarily blocked an order to give the girl to her adoptive parents, leaving open the possibility that the justices could send Veronica back to South Carolina even while appeals continue in Oklahoma.

Matt and Melanie Capobianco have court orders from both states giving custody to them, but Brown and the Cherokee Nation have vowed to “exhaust every legal option” before handing over the girl.

Over the weekend, as Veronica celebrated her fourth birthday, Cherokee Principal Chief Bill John Baker called the epic custody battle a test of tribal sovereignty.

Both Veronica and her biological father are members of the tribe, and Cherokee officials have promised to fight “to the end” to keep Veronica in Oklahoma, where she was born in 2009 before being adopted in South Carolina.

“They got Veronica out of Oklahoma by crook,” Baker said in an online video of a speech that he gave in Texas. “There are big dollars at work.”

The Oklahoma Supreme Court has decided that “it might be a good idea” to have a best-interest hearing before settling the custody dispute, Baker said.

Brown and the Cherokee Nation have been asking for such a hearing, but the court has not ordered one.

Like all the other hearings in recent weeks, Monday’s was closed, and a gag order kept the attorneys from explaining what happened.”

“Celebrating her fourth birthday Sunday, Veronica has now spent roughly half her life with each family – the first two years with the Capobiancos in Charleston, S.C., and the past two years with the Browns in Nowata, an hour north of Tulsa.”

“Summary of Oklahoma court actions

1. Nowata County Courthouse: South Carolina’s court order to transfer custody had to be “domesticated” by an Oklahoma court, making it enforceable here. The case went to Nowata because Brown and Veronica live there. Decision in favor of the adoptive parents appealed to Oklahoma Supreme Court.

2. Cherokee County Courthouse: With Veronica staying with her grandparents on Cherokee Nation trust land in Tahlequah, the Capobiancos filed a “writ of habeas corpus” to have Brown and his family brought to court. They hoped to get an order to transfer custody immediately but instead agreed to enter mediation.

3. Sequoyah County Courthouse: Facing a felony warrant for custodial interference in South Carolina, Brown surrendered to authorities in Sequoyah County, apparently because a judge was on duty there to handle the bond arrangements. He faces an extradition hearing Oct. 3.

4. Cherokee Nation Courthouse: Before leaving the state for National Guard duties in July, Brown asked a tribal court to grant guardianship of Veronica to her stepmother and paternal grandparents. The Cherokee Nation has asserted jurisdiction because Brown and Veronica are members of the tribe.

5. Oklahoma Supreme Court: Brown and the Cherokee Nation are appealing the Nowata judge’s decision to send Veronica back to South Carolina without a best-interest hearing.

6. Muskogee County Courthouse: For reasons not made public, the judge in Cherokee County removed herself from the case, and it was reassigned to a judge in Muskogee.

7. Court of Civil Appeals: It’s not clear what kind of hearing was involved, but the two families met Monday for more than six hours in downtown Tulsa.”

Baby Veronica’s parents meet in Tulsa court

[Tulsa World 9/17/13 by Michael Overall]

“After five days of mediation in downtown Tulsa, negotiations apparently ended Friday with no final agreement between Baby Veronica’s two sets of parents.

If no agreement is reached over the weekend, the biological father from Oklahoma and the adoptive parents from South Carolina could return Monday morning after nearly 30 hours of negotiating this week.

Normally a short process, mediation presumably can’t go on much longer. And if a deal isn’t signed soon, the case will go back to the Oklahoma Supreme Court.

So far, the court has agreed to let Veronica stay with Dusten Brown and his Cherokee family while they are appealing court orders to send the 4-year-old girl back to South Carolina.

But there’s no guarantee that Veronica would be allowed to stay in Oklahoma while the appeals process plays out entirely.

Any compromise would surely preserve some role for Brown, who gained custody of Veronica two years ago after courts in South Carolina determined that he never gave “voluntary consent” to the adoption.

The Capobiancos regained legal custody this summer, after the U.S. Supreme Court decided 5-4 that Brown didn’t have standing under the Indian Child Welfare Act, which was meant to keep Native American children with their tribes.

That decision forced the courts in South Carolina to reconsider custody, and they gave Veronica back to the adoptive parents.

“Federal law was clearly ignored in this case,” said state Rep. Sean Roberts, a Republican whose district stretches from parts of Tulsa and Owasso to Pawhuska.

Even under the Supreme Court ruling, as noted by Justice Sonia Sotomayor in her dissenting opinion, Veronica’s paternal grandparents should still have rights under ICWA to seek an adoption themselves, Roberts said.

“This may be the best choice of action at this point to keep the child with her Oklahoma family,” he said in a written statement.

A settlement between Brown and the Capobiancos would presumably make that a moot point. But Roberts vowed to work toward reforming state laws to protect the rights of birth parents and enforce the Indian Child Welfare Act in the future.

“I rarely get involved in pending court cases — and never publicly,” Roberts said, adding that he has an adopted brother and sister. “But after reviewing the facts of the case, it is clear that Veronica Brown should be solely placed with her father.”

Biological parents, if they can’t provide for their children, love them “unselfishly” by giving them up for adoption, Roberts said.

“But here, this is not the case,” he said, “as Dusten Brown did not give up his rights in accordance with the law and has proven his ability to raise his child.”

Brown has said he was tricked into signing away his parental rights when he thought he was only agreeing to give custody to the birth mother.

The Capobiancos arranged a private adoption with Brown’s ex-fiancee and came to Oklahoma for the birth.

Turning 4 last Sunday, Veronica has now spent roughly half her life with each family — the first two years with the Capobiancos in Charleston, S.C., and the past two years with Brown and his wife in Nowata, an hour north of Tulsa.

About 10 supporters greeted Brown in the courthouse lobby Friday. Some shook his hand, while others clapped. Brown smiled but said nothing.

No one approached or spoke to the Capobiancos when they passed.”

Baby Veronica case: Five days of mediation yield no agreement

[Tulsa World 9/20/13 by Michael Overall]

Christian Group wants to abolish ICWA

“The Baby Veronica case, named for the girl at the center of a contentious child custody dispute, has stirred powerful emotional responses from many groups, including some Christian evangelicals.

Motivated by their faith in God and a distrust of federal Indian policies, a few evangelical organizations are campaigning to abolish the federal Indian Child Welfare Act at the heart of the dispute.

Congress enacted the law in 1978 to address the abuses that separated Indian children from their families through adoption or foster care. The law gives related tribes a preference in custody proceedings involving Indian children.

Evangelicals, who have recently seized on adoption of orphaned children as a moral imperative, want fewer barriers to providing Native American children homes and see the federal law as an obstacle.

In the Baby Veronica case, an Oklahoma Cherokee father is fighting to retain custody of his daughter who will turn 4 on Sunday (Sept. 15), while a white adoptive couple in South Carolina who raised the girl from birth to age 2, wants her back.

In a 5-4 decision this summer, the U.S. Supreme Court ruled that the federal law did not apply to the father and sent the case back to South Carolina for consideration.

The Cherokee Nation is fighting to claim jurisdiction under the same law and believes that Veronica’s case is an attack against the law and tribal sovereignty.

Elizabeth Sharon Morris of Hillsboro, N.D., believes the child should stay with her adoptive family.

A former registered nurse and mother to five children who adopted one and reared seven more, Morris runs a nonprofit organization of about 400 members that advocates for abolishing the Indian Child Welfare Act.

Morris said she was motivated to get involved after watching her late husband, Roland John Morris, Sr., a member of the Leech Lake Band of Minnesota Chippewa, battle alcoholism while his family succumbed to suicide, drug addiction, and crime.

When she saw a South Dakota tribe force a 5-year-old Native American girl to leave the stable home of her white adoptive parents, she feared the girl would return to a similar environment on the reservation.

“I just felt sick to my stomach at the thought,” Morris said.

In 2004, she and her husband founded the Christian Alliance for Indian Child Welfare.

The alliance submitted an amicus brief to the U.S. Supreme Court, arguing that the act should not apply to the Baby Veronica case.

Morris and others base their argument on a familiar refrain that resonates with the Tea Party movement: limited government.

The alliance’s events regularly appear on TeaPartyCommunity.com, an online social media group.

Johnston Moore also wants to see the law repealed, or at least amended. He fought a three-year court battle and spent $30,000 on legal fees to win custody of two Native American boys. Today, he is executive director and co-founder of Home Forever, a Long Beach, Calif.-based organization that advocates a biblical mandate for adoption and foster care.

“ICWA unfairly allows our child welfare and judicial systems to treat children differently if they happen to be eligible for membership in a federally recognized tribe,” Moore said.

He believes Veronica was “traumatically ripped” from her adoptive parents because she has “a few drops of Cherokee blood running through her veins.”

But opponents question why these groups now want to sever the bond between Veronica and her biological father, who’s had custody of the child for 19 months. They point out that evangelicals are now using the powers of the state to wrest children from Native American families.

Eli S. McCarthy, a Roman Catholic, supports the federal law and said Christians should work to repair the harm done by strained relations with the Indian communities.

“The federal government, as a collection of human beings working for society, has the capacity to promote the common good as in the case of ICWA,” said McCarthy, director of justice and peace for the Conference of Major Superiors of Men, an organization of 17,000 religious order priests and brothers. The conference joined four other Christian organizations in a U.S. Supreme Court amicus brief supporting the federal act.

Some evangelicals are reluctant to interfere with Native American sovereignty. Morris said her own church told her not to “rock the boat,” and when she sought support from Focus on the Family, the Colorado-based evangelical organization, no one responded. A representative said the organization has no position on the child welfare act and would not elaborate.

The Southern Baptist Convention, which has called on its nearly 16 million members to do more to care for orphans and foster children, has not issued a statement on Native American adoptions.

“Right now, we’re concerned with the larger picture of orphan care and not one particular group,” said Russell D. Moore, president of the convention’s Ethics & Religious Liberty Commission.

Andrea Smith, a Cherokee scholar, said some evangelicals have long been organizing against the act. “Such groups have no relationship at all with Native communities,” she said.

Smith suggests a better way forward would be for these groups to partner with Native American evangelical organizations.

“Probably the best way to develop alliances would be to mirror the organizing that Latino evangelicals did with Christian right groups around immigration reform,” Smith said. “They just began with partnering with white evangelical churches to expose them to what immigrant families were going through and were gradually able to get most Christian right groups to reverse their positions.””

‘Baby Veronica’ Case Gets Christian Evangelical Groups Involved In Federal Indian Adoption Policies

[Huffington Post 9/13/13 by Angela Aleiss]

Update 46/August 2, 2018

This is the judge who took Veronica away from her father!!!!

“The Chief Justice of the Oklahoma Supreme Court alleged in a document filed late Wednesday that Washington County District Judge Curtis DeLapp is guilty of gross neglect of duty, oppression in office and asked that DeLapp be removed from judicial office.

As a result, DeLapp will face a trial the following month in front of a panel of judges from across the state.

DeLapp came under fire in March after The Frontier documented a string of cases where he had ordered people to jail for seemingly minor cases of courtroom misbehavior such as talking in court. In one case profiled by The Frontier, DeLapp ordered a woman jailed without bond for six months after the woman allegedly talked in court.

In the 27-page document filed Wednesday, Chief Justice Douglas Combs laid out a number of allegations against DeLapp, including that he had falsified court records in order to justify a six-month jail term against a woman who had allegedly spoken out loud in his courtroom during a hearing.

DeLapp, he wrote, had issued “in excess” of 200 direct contempt citations ordering jail time since 2016. His “use and application of direct contempt ignored each individual’s due process rights,” Combs wrote. “The routine denial of individuals’ access to justice constitutes oppression in office.”

Further, Combs wrote, DeLapp’s “complete disregard of applicable laws and fundamental rights demonstrates a gross neglect of duty.

“The pattern of conduct demonstrates (DeLapp’s) lack of temperment to serve as a judge.”

The first two cases Combs noted in his order are both cases The Frontier covered in March.

Randa Ludlow, 19, was a courtroom spectator when she was arrested for contempt last November. Ludlow was allegedly asked to leave DeLapp’s courtroom after talking to another spectator on two occasions, according to court records.

Ludlow left the courtroom, then motioned through the courtroom window to another spectator that she was “going to go downstairs,” and a deputy left the courtroom and took Ludlow to DeLapp’s chambers.

From there DeLapp ordered the woman to 30 days flat time in the Washington County Jail. When Ludlow was handcuffed, she “blurted out that it hurt,” court records state, and DeLapp increased her jail time from 30 days to six months.

Days later, DeLapp let Ludlow out of jail, fined her $500 and ordered her back to court on Dec. 12 and Jan. 9. During the Jan. 9 hearing DeLapp “noted that (Ludlow) had new charges (speeding and driving under suspension)” and ordered her back to jail to serve “the remaining five months and 27 days.”

Ludlow’s sentence was designated in court records as “flat time,” meaning she couldn’t earn time off her sentence with good behavior.

Direct contempt of court is a severe punishment under Oklahoma law — though the maximum sentence for direct contempt is set at six months in jail, the defendant does not get an attorney, a hearing, or a bond, and must spend the entirety of the sentence in jail.

Four days after The Frontier’s story, The Oklahoma Supreme Court ordered Ludlow to be released from jail immediately.

But she was not the only one who had apparently faced harsh punishment by DeLapp for seemingly minor infractions.

A court document filed by Ludlow’s attorney last February outlined several other instances, including a woman who was sent to jail for allegedly leaving sunflower seeds on the courtroom bench.

The woman was jailed on a $50,000 bond and was forced to return to the court for nearly a dozen hearings on the case over a two-year span.

Other cases in Ludlow’s petition accuses DeLapp of abusing his authority by issuing contempt citations against numerous other attorneys, potential jurors, defendants and courtroom spectators.

In one case cited in the petition, DeLapp in 2013 dismissed five felony charges, most of which involved theft of property, and one misdemeanor charge against a man after the assistant district attorney showed up to court eight minutes late.

Court records show that, during the man’s sentencing, the court reporter was sent to fetch the assistant district attorney, who after arriving asked the judge not to dismiss the cases. DeLapp agreed to not dismiss the cases (though records show he had already done so), but cited the assistant district attorney with contempt of court, the petition states.

In another instance, a courtroom spectator was held in contempt in 2014 after muttering something under his breath during court, though the petition states the judge did not hear what was said and had to be told what the man said by an Office of Juvenile Affairs worker who was nearby.

Court records show the man was found to be in contempt for “using foul language” and was sentenced to 30 days jail time, serving only the first two days and then bringing his work schedule back to court for the imposition of the remaining 28 days.

DeLapp then asked the man, who had driven another defendant to court for an appearance, for his driver’s license to get the spelling of his name.

The man said he had left his license at home, and when asked by the judge, said it was not suspended. DeLapp then had a deputy run the man’s name through a law enforcement database and found that it was suspended, court records state. The man was then given the full 30-day sentence to be served as “flat time,” records show.

Other cases cited in Ludlow’s petition include a case where a potential juror was cited for contempt after she brought children from her daycare with her to the courtroom, another potential juror was cited for contempt for saying a swear word, and numerous attorneys being held for contempt of court for being late or failing to show up to court even though in many cases the attorneys had substitute attorneys present.

In Combs’s order, he also noted multiple instances of DeLapp ordering people to jail for contempt without filing the proper paperwork, or imposed jail for time “direct contempt” because the defendants were late to court.

Combs noted that on two occasions in 2017, DeLapp had deputies bar anyone who was late from entering his courtroom, then ordered those unable to get into the courtroom for their hearings to jail, saying they “left (the courthouse) without seeing the judge.”

Combs also accused DeLapp of falsifying court records in the Ludlow case. DeLapp, Combs wrote, had not filed the “contempt court minutes” as required by law when he ordered Ludlow to jail last year.

After the oral arguments before the Oklahoma Supreme Court on March 2 about that case, DeLapp allegedly called his court clerk and asked her to retrieve Ludlow’s case file, Combs wrote.

DeLapp, Combs said, told his clerk “not to look at the files” so she would not “get involved.”

DeLapp was later recorded on surveillance video looking at the files, unable to find the missing “contempt court minutes,” Combs wrote. DeLapp then left and later called his clerk to claim he had found the missing file that he had allegedly written in November when Ludlow was jailed.

DeLapp then used “ambiguous language” to mislead the Oklahoma Supreme Court into thinking the document was original and not backdated, Combs wrote.

“(DeLapp) in fact created the document while alone in his office on March 2, 2018,” Combs wrote.

DeLapp was also accused of interceding on his 18-year-old son’s behalf after the teen got a speeding ticket. DeLapp, Combs said, contacted the assistant district attorney who was handling the case, asking if his son could enter into a diversion program.

The prosecutor later said he was “concerned” about what to do given that he routinely appeared in front of DeLapp, Combs wrote.

DeLapp currently is set to face Linda Thomas in a runoff for his District 11 judicial seat after DeLapp failed to get 50 percent of the vote during the June primary election.”

Washington County judge guilty of ‘gross neglect,’ ‘oppression in office,’ state Supreme Court Justice writes
[The Frontier 8/1/18 by Dylan Goforth]