CHARLESTON, November 26, 2012 — On a chilly afternoon in January 2011, a pick-up truck with Oklahoma plates pulled in front of Melanie and Matt Capobianco’s home in Charleston. Forced by the Supreme Court of South Carolina, they stepped forward and handed over their two-year-old daughter Veronica to a man neither she nor they had ever met before. He strapped the toddler into the car and pulled away.
That was the last time that the Capobiancos saw their daughter.
“No one can believe that this nightmare can happen in America,” says Melanie.
This outrage is what drove Paul Clement, the U.S Solicitor General from 2005-2008 and Thomas Lowndes, a founding member of the American Academy of Adoption Attorneys, to file a brief with the U.S. Supreme Court on behalf of the guardian ad litem for Veronica, asking for it to restore parental rights to the Capobiancos.
Although the Supreme Court hears only about one-percent of cases that are submitted, the Capobiancos hope that when the Court chooses the cases to hear in 2013, this one will be among them.
Baby Veronica’s story has gained national press attention, including being featured on a recent episode of Dr. Phil.
The Capobiancos lost custody of Veronica when the court stripped them of their parental rights and ordered custody be given to Dusten Brown, the child’s biological father. Although he had previously waived his rights to parent Veronica, he later changed his mind and sought custody.
Ordinarily such a case would be thrown out since it’s widely believed that once parental rights are waived they stayed waived because it is in the best interest of the child to have a permanent and stable home.
However, Brown has Cherokee heritage, which entitles him to a special exception under the Indian Child Welfare Act. The Supreme Court of South Carolina interpreted the federal law, which gives placement preference of adopted American Indian children first to family members, second to members of the same tribe and third to members of another tribe, to mean that Veronica’s parents had to forfeit their rights.
“There was no transition period, nothing for Veronica. We were ordered to hand her over and that was it,” says Melanie, who is a child psychologist. “We can’t understand how she was given no time to adjust or even meet her birth father in advance of him taking her back to Oklahoma.”
Today, although the birth mother maintains contact with the Capobianocs and supports their parental rights, they have been permitted no contact with Veronica by Brown. “We live in total grief,” says Melanie.
This case has sent shock waves through the adoption community and has alarmed child welfare advocates. Already, the number of Americans interested in adoption far exceeds the number of those who actually do adopt. Surveys consistently show that one of the main reasons people do not pursue adoption is because they fear that the child will be taken away from them.
The Capobiancos’ case is every parent’s worst nightmare. It is precisely the kind of case that will have tragic consequences, scaring off other prospective parents from adopting the hundreds of thousands of children that need permanent homes. Native American children who need permanent homes and families are at the highest risk if South Carolina’s interpretation of the Indian Child Welfare Act stands.
“I wish I could say that ours is an isolated event, but it’s not. This has happened and is happening to many children and families in this country,” says Capobianco.
Much of the argument presented to the Supreme Court rests on the confusion surrounding the law, which leads to states, like South Carolina, interpreting the Indian Children Welfare Act (ICWA) in inconsistent ways. Here is an excerpt of the SCOTUS filing:
ICWA would not have “dictated” this outcome, however, in at least eleven other states with a collective population of two million Native Americans. Courts in seven states have held that ICWA does not bar courts from terminating the parental rights of a non-custodial father under state law when the father abandoned his child to the sole custody of a non- Indian mother. Courts in four other states have held that an unwed, putative father must comply with state law rules to attain legal status as a “parent” under ICWA. State courts across the country have wrestled openly for decades over the meaning and operation of ICWA, and the result is two acknowledged splits on issues central to the decision below. These issues are at the heart of the administration of ICWA. And these issues potentially impact thousands of child custody cases annually involving Indian children with unwed, mixed-race parents. The dissenting justices aptly described the South Carolina Supreme Court’s decision a “human tragedy.” App. 101a (Hearn, J., dissenting). They explained that the decision wrongly “decides the fate of a child without regard to her best interests and welfare.” Id. at 41a (Kittredge, J., dissenting). Few issues have greater importance to the lives of U.S. citizens than the rights that attach to parenthood. And few issues are of greater importance than an individual’s decision to raise a child.”
These concerns have prompted the California State Association of Counties and the County welfare Director Association of California to sign on as Amici Curiae in support of adoptive parents in this appeal.
“The concern should not be with a tribe, or a community, a birth parent or an adoptive parent. It should always be with the child. Case-by-case, what is in the best interest of the individual child,” asserts Melanie. “This case is about fundamental justice for children. We are determined not to give up hope.”
To find out more about this case, cases like it, and how to make a difference: http://www.saveveronica.org/
To support amending the Indian Welfare Act to protect Native American children: http://coalitionforindianchildren.org/
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