Supreme Court denies father's appeal to keep daughter

South Carolina family court finalizes adoption of Veronica Brown Aug. 1, birth mother claims Indian Child Welfare act unconstitutional

WASHINGTON - For the second time in her young life, adoption officials will remove Veronica Brown, an American Indian child, from a home she has grown to know. This time she will leave her Cherokee father in Oklahoma and go back to a home where she has not lived for 19 months - with her non-native adoptive parents in South Carolina.

On Aug. 2, despite two Supreme Court Justice dissents, the full Supreme Court denied, without explanation, Dusten Brown's application for a stay in the adoption and for a delay in the transfer of his biological child, Veronica, to Matt and Melanie Capobianco.

On Aug. 1, the South Carolina family court finalized the Capobianco's adoption of the girl and ordered her to move from her father's home in Oklahoma to the Capobianco's home in South Carolina. The court sealed all details about the timing of the transfer and the transition plan for Veronica.

The little girl, who will turn four in September, is at the heart of a case between her biological father, and her birth mother who put her up for adoption and the South Carolina couple, who were present at her birth and have been waiting to adopt her for all of Veronica's life.

Veronica's father was estranged from Christinna Maldonado, at the time of Veronica's birth. He never had custody of Veronica before the South Carolina court, after 18 months of her life with the Capobiancos, ordered her transfer to Brown because of the Indian Child Welfare Act (ICWA). Brown had contested the adoption under ICWA and won his case in trial court and on appeal with the state supreme court. At that time, the courts in South Carolina said that Browns had established paternity.

The case then went to the United States Supreme Court on appeal. In its June 25 decision, the Supreme Court said that the heightened standard for proof of termination of a parental right under ICWA does not apply when a parent has never had prior legal or physical custody of the child. It also found that active efforts to comply with ICWA to not break up an Indian family do not apply when a parent abandons a child before birth and again has never had legal or physical custody of a child.

On July 17, because of the Supreme Court decision, the South Carolina Supreme Court decided on expediency and reversed its earlier decision in favor of Brown, saying that without ICWA as a factor in the case, the last 19 months did not have to be taken into consideration-and Brown had not established paternity under South Carolina law. The court ordered that when the Capobianco's adoption was finalized, Brown had to hand over Veronica, terminating his parental rights.

On July 24, the South Carolina state court denied petitions filed by both the Cherokee Nation and Dusten Brown for a rehearing of its July 17 decision.

The court said that under South Carolina state law, the father is prohibited from challenging the adoption.

Further, the court said that it decided the case in the best interests of Veronica and that the Capobiancos expressed their intent to make sure Veronica is raised with "a meaningful connectedness to her Native American heritage."

In Oklahoma, Brown's mother and father, the child's Cherokee grandparents, and Brown's wife have all sought to adopt Veronica in an Oklahoma state court to ensure she remains with a Cherokee family.

The Cherokee tribe granted joint legal custody to Brown's parents and his wife.

On Aug. 1, Dusten Brown said that he was shocked and deeply saddened by the court's decision. He believes that the court refused to allow Veronica's best interests in the present to be considered and issued an order they know will cause his daughter to suffer.

"The Court gave its blessing to a transition plan offered by the Capobiancos that says upon transfer to them, Veronica will be 'fearful, scared, anxious and 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,'" Brown said in a statement. "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 our justice system will bring justice to Veronica."

He also had a message for the Capobiancos.

"Please for Veronica's sake, just stop! Stop, and ask yourself if you really believe this is best for her," Brown said.

According to some legal experts, removing Veronica from her family may be complicated because Veronica is in Oklahoma and is a member of the Cherokee Nation. They questioned the ability of the South Carolina courts to decide what can happen to an Indian child in Oklahoma.

Also on July 24, Veronica's birth mother, Christinna Maldonado, sued U.S. Attorney General Eric Holder saying that parts of ICWA are unconstitutional. She said the law considers race as a determining factor for whom a child should live with and therefore violates the equal protection clause. Many Native Americans and Native American organizations across the nation fear the move because it calls into question the validity of ICWA and other federal laws that relate to Native Americans because inherently many use race as a determining factor.

The U.S. government enacted ICWA in 1978 because of the high number of Indian children public and private agencies removed from their Indian homes. The act gives relatives of the children and the tribes a say in what happens to Indian children. The act was designed to preserve Indian culture and heritage.

"Some who fiercely assert the evils of ICWA contend that all children should be treated equally and therefore ICWA should be dismantled," said Terry Cross, executive director of the National Indian Child Welfare Association (NICWA). "This argument sounds reasonable to those unfamiliar with the long history that led to ICWA's passage. At that time 25-30 percent of all American Indian children were removed from their homes... 80 percent were placed, often permanently, in white homes."

Other national native organizations have filed a civil rights lawsuit on behalf of Veronica Brown.

"The National Congress of American Indians refuses to stand by as the rights of this child are violated. Together with the Native American Rights Fund and the NICWA, we are preparing to file litigation in order to protect Veronica's civil rights. On behalf of all Native American children, we will pursue every legal option available to us to ensure that standard adoption procedures are upheld in this case," its statement said.