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Baby Veronica’s Loved Ones Wait for Supreme Court to Weigh In

Dusten Brown and his biological daughter Veronica feed geese and ducks at Brown's home in Nowata, Okla. The U.S. Supreme Court will take up a 1978 Native-American child welfare law in a case that may determine custody of the girl. Illustrates SCOTUS (category a), by Robert Barnes (c) 2013, The Washington Post. Moved Sunday, April 14, 2013. (MUST CREDIT: Photo for The Washington Post by Jeremy Charles)

Dusten Brown and his biological daughter Veronica feed geese and ducks at Brown's home in Nowata, Okla. The U.S. Supreme Court will take up a 1978 Native-American child welfare law in a case that may determine custody of the girl. Illustrates SCOTUS (category a), by Robert Barnes (c) 2013, The Washington Post. Moved Sunday, April 14, 2013. (MUST CREDIT: Photo for The Washington Post by Jeremy Charles)

There are two houses, a thousand miles apart, that each contain a child’s play kitchen, a wall of toys and portraits of the same dark-eyed, curly-haired little girl.

In one lives a couple named Matt and Melanie Capobianco, who cared for the girl from the time she drew her first breath until 27 months later, when the courts said she must be returned to her biological father.

“We want things to be familiar to her when she comes home,” said Melanie Capobianco. “I know she’s going to know her home and family.”

And in the other house lives the father, Dusten Brown, who once tapped out a text message saying he’d give up rights to his daughter, but now embraces parenthood. His daughter, now 31∕2, shows off the room that Brown and his new wife have painted pink and purple.

“Her whole world as of this moment is me and my wife, it’s Mommy and Daddy,” Brown said.

The justices of the Supreme Court this week will take up the case of Adoptive Couple v. Baby Girl and take on the role of Solomon to decide in which house Baby Veronica, as she has come to be known, should live.

Veronica’s birth mother chose the Capobiancos to raise the child, and in many states Brown as an unwed father would have little say. But because he is a member of the Cherokee Nation, the court will consider once again the Indian Child Welfare Act.

It was passed in 1978 to end what Congress found to be a shameful practice of removing Indian children from their families and tribes and placing them in foster care and with non-Indian families. The law sought to keep Indian families together by erecting barriers to adoption outside the tribe.

The Capobiancos’ challenge goes to the continued viability of the law – whether Brown should be considered a “parent” under its terms and whether it applies to cases such as this one, where an Indian parent did not have custody of the child.

And the couple and their supporters also argue that Congress could not have wanted the law to be interpreted as putting the interests of the father and the tribe ahead of the child simply because of her race.

Veronica, whose mother is Hispanic, is “3/256th Cherokee,” Washington lawyer Lisa Blatt, who represents the Capobiancos, told the court in a brief.

“She deserves to be treated as a unique, multiethnic individual whose best interests are not inexorably dictated by her blood connection to a tribal member,” the brief said.

Heavy hearts

The case has set off alarms among the tribes, and some child welfare experts, who consider the law the “gold standard” in attempting to keep children with their biological parents. Nineteen states and the United States have filed briefs defending the law.

A family court judge in South Carolina ruled that Brown deserved custody of Veronica. The state supreme court upheld the ruling in a 3-2 decision that reflected its conflict.

The decision came with a “heavy heart,” South Carolina Chief Justice Jean Hoefer Toal wrote, because “Adoptive Couple are ideal parents who have exhibited the ability to provide a loving family environment for Baby Girl.”

Brown did not fare as well with the dissenting justices. Justice Kaye Hearn criticized her colleagues for giving Brown an undeserved “second chance at fatherhood.” Justice John Kittredge said he could not understand “how an unwed birth father who willfully abandons his child escapes even the slightest blame.”

Brown’s failed relationship with Christinna Maldonado is filled with the “he said, she said” disputes and dramas that are common in custody cases.

They agree on this: They got engaged in December 2009 and Maldonado informed Brown the next month that she was pregnant.

Brown said he wanted to get married right away and bring Maldonado and her children to live at Fort Sill, Okla., where he was stationed for the Army. She resisted, and at some point they stopped communicating.

In May, she informed him via text message that the engagement was off. She followed that up the next month with another message asking if he would rather pay child support or give up his rights. He texted back that he would give up his rights.

Maldonado decided to give up her child for adoption, and through an agency chose the Capobiancos, who supported her through the rest of the pregnancy and were in the delivery room when Veronica was born. Matt Capobianco cut the umbilical cord.

Maldonado, in a brief to the Supreme Court supporting the Capobiancos, said Brown provided no support and never inquired about the baby. He contends that he tried numerous times to contact her, as did his parents, but she refused to acknowledge the efforts.

“She told me she didn’t want to hear from me no more,” Brown said. “It was either respect her wishes or bug her. Honestly, I wish I would have bugged her a lot more.”

As Brown prepared to deploy to Iraq, he was served with adoption papers. He signed them, he said, thinking it simply transferred sole custody to Maldonado. But when he learned that the child was not with Maldonado, he contacted a lawyer to stop the adoption, and then shipped out. While he was gone, the Cherokee Nation determined that Brown was a registered member and told the court that the federal act applied.

Meanwhile, the Capobiancos, in a new house in Charleston, S.C., with a new baby they adored, were stunned. The couple’s multiple attempts at in-vitro fertilization had been unsuccessful, and they were thrilled when Maldonado had chosen them as the adoptive parents.

They had worried that the mother might change her mind, but not the father. “We couldn’t understand why now, after he had been so clear about not wanting to be involved,” said Melanie Capobianco.

The couple did not dwell on the fact that they might lose Veronica. They started a college fund. They signed her up for swimming lessons because the new house had a pool, and she “turned out to be a fish,” Matt Capobianco said.

He called Veronica “boss lady” because of the way she ordered her cousins around.

Both Matt Capobianco and Brown used the same word to describe her: “fearless.”

Switching families

After a trial in September 2011, a family court judge ruled that Brown be awarded custody under the federal law, and the Capobiancos were told to turn Veronica over. It happened Dec. 31, 2011.

They packed up the child’s clothes and some of her things and met Brown and his parents at a lawyer’s office. “We had to walk out and leave her there, and she cried out after us. It’s just something that I run over in my head over and over again,” Melanie Capobianco said.

“We were able to talk to her on the phone the next day for, like, two minutes and that’s the last time we talked to her.”

Brown remembers the day this way: “We were coloring pictures and looking at the window. We were already being a family, right there.”

Brown’s attorney, Charles Rothfeld, told the court that the Capobiancos’s challenges are easily answered. The act clearly covers unwed fathers who acknowledge their paternity, Rothfeld wrote in briefs. And the law nowhere states that there must be an “existing Indian family” for the act to apply.

Such a requirement, Rothfeld and the U.S. solicitor general argue, would defeat Congress’s intent on protecting tribes against the loss of Indian children.

More provocative is the racial argument advanced by former Bush administration solicitor general Paul Clement, who represents a guardian appointed by the South Carolina courts to look after Veronica’s interest and who thinks the Capobiancos should get her.

The lower courts’ interpretation, Clement wrote in his brief, “would deny Baby Girl of fundamental liberty interests based on race and race alone.”

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