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Legal learning: The saga of baby Veronica, Native American child

Baby Veronica, whose father is Native American (a member of the Cherokee Nation), has become famous even though she is only four years old. Her custody battle has been fought in Oklahoma, South Carolina, and the U.S. Supreme Court, but is relevant to Native American adoptions everywhere, including Minnesota.

The saga started in 2009 when Veronica's mother, Christina Maldonado, told Veronica's father, Dusten Brown, that she was pregnant. Brown eventually told Maldonado that he relinquished his rights to the unborn child.

The mother then began making arrangements to place the child for adoption with a couple in South Carolina, Matthew and Melanie Capobianco, who are white. Four months after the birth of the child, Brown was served with notice of the proposed adoption. His Tribe did not receive any notice. Since Brown was serving with the U.S. Army in Iraq, he was able to get the adoption proceedings delayed.

The case was finally heard in South Carolina in September, 2011. The judge denied the Capobianco's petition to adopt Veronica, and ordered that the child be returned to Brown as the biological father. The ruling was based on the Indian Child Welfare Act (the ICWA), a federal law designed to prevent the separation of Native American children from their biological families and tribes. So Veronica went to live in Oklahoma with her father.

The Capobiancos appealed and the South Carolina Supreme Court also ruled against them. In a 3 to 2 decision the majority ruled that the ICWA allows a Native American parent to relinquish his rights to a child only if it is in writing, before a judge, and signed at least ten days after the child's birth. The Capobiancos also made no effort to prevent the breakup of the Native American family, as required by the ICWA. Therefore the child would continue to live with her father.

The Capobiancos appealed again, this time to the United States Supreme Court. The Obama administration argued on behalf of Brown, the father, as did 22 "friends of the court". However, on June 25, 2013, the Supreme Court ruled in favor of the Capobiancos. It was a split decision, 5 to 4. The majority (Chief Justice Roberts and Justices Alito, Kennedy, Thomas, and Breyer) decided that the ICWA does not apply to a Native American father who has never had custody of his child, relying on the words "continued custody" in the statute. The judges said that the ICWA does not prevent a non-Indian couple from adopting when no Native American individual or family has formally sought to adopt the child

Justice Sotomayor dissented, along with Justices Ginsburg, Kagan, and Scalia. She wrote that the word "continued" in the statute did not only refer to the past, but also to continued custody in the future. She said that the majority opinion was destroying a father's relationship with a child solely because he did not have custody, which turned the law "upside down", and ignored the very purpose of the ICWA.

So baby Veronica's custody case went back to the South Carolina Supreme Court, which has now ruled in another 3 to 2 decision that the adoption be finalized and custody returned to the Copobiancos. The majority said "There is absolutely no need to compound any suffering that Baby Girl may experience through continued litigation." The attorney for the Cherokee Nation called this decision "heartbreaking". The Copobiancos said "We look forward to seeing Veronica's smiling face in the coming days and will do everything in our power to make her homecoming as smooth as possible."

The Oklahoma Supreme Court issued a stay in the case, delaying an Oklahoma county court's decision to turn the little girl over to the Capobiancos and she remained with her father during that time. On Sunday, Sept. 22 however, Baby Veronica was returned to her adoptive family in South Carolina.

James H. Manahan is a Harvard Law School graduate and was named one of Minnesota's Top Ten Attorneys. He now handles family law, wills and probate in and around Silver Bay, and does mediation everywhere.