A divided high court ruled Tuesday that federal law doesn’t require that the girl, Veronica, stay with her biological father, but also doesn’t give her adoptive parents immediate custody of the 3-year-old child.
The court issued an order Friday speeding up the case being sent back to South Carolina’s Supreme Court.
Melanie and Matt Capobianco of James Island had lost in South Carolina courts before the nation’s highest court ruled that the Indian Child Welfare Act didn’t apply in the case because the biological father never had custody of the child and abandoned her before birth.
“Some people thought we should just go get another child,” Melanie Capobianco told The Post and Courier of Charleston. “It’s not like she’s just any child. We love her.”
Dusten Brown, a member of the Cherokee Nation, invoked the federal law to stop the adoption arranged by the girl’s non-Indian mother when she was pregnant. The Capobiancos were present at Veronica’s birth in Oklahoma. Brown had never met his daughter and, after the mother rebuffed his marriage proposal, played no role during the pregnancy and paid no child support.
But when Brown found out Veronica was going to be adopted, he objected and said the law favored the girl living with him and growing up with tribal traditions.
South Carolina courts sent Veronica back to Oklahoma at the end of 2011, even though she had lived with the Capobiancos for the first 27 months of her life.
“I’m going to keep fighting,” Brown told the newspaper.
The state Supreme Court’s first task will be finalizing the Capobiancos’ adoption. Their most likely approach is that the justices will send the case back to Charleston County Family Court, where judges would be ordered to abide by the U.S. Supreme Court’s decision, reconsider the facts and decide on the adoption petition, said John Nichols, who represented Brown before the state Supreme Court.
“We are in uncharted waters,” Nichols said. “We have been from the very beginning. The map is still not complete.”
Brown’s role in Veronica’s life now is something University of South Carolina law professor Marcia Zug thinks cannot be ignored. The family with custody is often given preference in state custody proceedings. Now the Capobiancos must argue the opposite of their position in state court, that taking Veronica from the home she knew since birth might stunt her development and cause psychological problems.
“At this age, she probably doesn’t remember who they are,” Zug said. “It’s not reuniting her with a family she’s missing. It’s taking her away from the only family she knows.”