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Man's Native American roots offer exemption in adoption laws

A man was able to use his Native American roots to secure custody of a two-year-old child he had fathered but signed away all custody rights to, despite the fact the child had been living with her adopted parents since birth.

Baby Veronica had been adopted at birth by South Carolina couple Matt and Melanie Capobianco, with Matt even cutting biological mom Christina Maldonado’s umbilical cord.

But Dusten Brown, a member of the Cherokee Nation, claimed the baby's mother had given the child up without his consent.



'I'm always going to be her daddy': Dusten Brown and daughter Veronica met for the first time on New Year's Eve 2011

When Brown challenged the Capobiancos' adoption, his lawyers cited the Indian Child Welfare Act, a federal law that gives tribes and relatives a say in decisions affecting children with Native American heritage.

It was passed in 1978 because of the high number of Indian children being removed from their homes by public and private agencies.

A South Carolina court favored his argument that federal law favored the girl living with him and growing up learning tribal traditions and the child was handed over to him after a court battle in December 2011.

Since then the Capobiancos have been fighting to regain custody of their adopted daughter Veronica, now age 3, and on Tuesday they took their fight to the highest court in the land.


Happy family: Matt and Melanie Capobianco were in the delivery room when Veronica was born in Oklahoma in September 2009



The future of Veronica Brown is being discussed at the U.S. Supreme Court on Tuesday

THE ROAD TO THE SUPREME COURT FOR YOUNG VERONICA

September 2009: Baby Veronica is born in Oklahoma, with the Capobiancos present at the birth

January 2010: Dustin Brown signs away his custody rights but days later files an appeal

December 2011: Veronica is handed over to her biological father after a family court in South Carolina grant him custody


July 2012: South Carolina Supreme Court upholds the custody decision

April 2013: U.S. Supreme Court hears an appeal from the Capobiancos

Attorneys on both sides agree that the Supreme Court, which is hearing the case on Tuesday - although a verdict isn't expected until the Summer - is unlikely to send Veronica back to live with the Capobiancos.

One possible outcome is that the court might send the case back to South Carolina to be reconsidered, which would leave the ultimate outcome uncertain and mean that Veronica continues to live in Oklahoma.

Alternatively the court might reaffirm the decision to give custody to Brown and effectively end the Capobianco's chances of regaining the young girl they so dearly love.

The Capobiancos appealed to the state Supreme Court last July, claiming they had bonded with Veronica and arguing that removing Veronica was detrimental to her development.

But justices sided with Brown, saying in an emotional opinion that, while the Capobiancos were ‘ideal parents,’ federal law requires that custodial preference be given to the child's Native American parent.

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’.



Hopeful: The couple are hoping that the U.S. Supreme Court will allow them to be reunited with their daughter

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.



Dusten Brown says his daughter started to call him 'Daddy' within minutes of them meeting for the first time when she was two

More than a dozen states and 23 current and former members of Congress have filed briefs supporting the law ahead of Tuesday's Adoptive Couple v. Baby Girl hearing.

In addition, the federal government has filed an amicus brief backing the law, as have more than a dozen child welfare organizations.

State courts have been at odds on the law's application. The American Association of Adoption Attorneys hopes the matter will be clarified by the high court. The group has filed a brief supporting the Capobiancos' case.

It says the court previously has ruled on the rights of mothers and unwed fathers - rights that, a past president of the group said, federal law hasn't defined, at least for Native American children.



The Indian Child Welfare Act gives tribes and relatives a say in decisions affecting children with Native American heritage

‘Those cases clearly state that unwed fathers do not have an automatic fully protected right to participate in decisions about the child,’ Seattle adoption attorney Mark Demaray said last week during a conference call with reporters.

Case law aside, Demaray said, the emotional aspects of the case are hard to ignore.
'We often refer to cases like this one before the Supreme Court as a tragic situation we all want to avoid,' Demaray said. 'There's no question this case is tragic for all the families and parties involved in it, particularly for this child, no matter what the outcome.'

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