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South Carolina Supreme Court Permits Biological Father to Take 2-Year-Old From Her Adoptive Parents

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Toddler Veronica Capobianco was forcibly removed from the home she shared with her parents and given to a man she had never met. This is not an illegal abduction, although it certainly sounds that way. This action was court-ordered.

In late July the South Carolina Supreme Court upheld a judge's decision that removed a 2-and-a-half-year-old from her adoptive family after a bitter custody battle with her birth father. This ruling has sent shock waves through the American adoption system.

Veronica Capobianco was adopted in 2009 by Matt and Melanie Capobianco of Charleston, S.C., in an open adoption in Oklahoma.

Four months after the finalization of the adoption, Dusten Brown, Veronica's biological father, filed for custody under the federal Indian Child Welfare Act, which protects Native American families from being separated.

The 1978 law grants tribes a unique right to intervene in adoption cases. Under the law, a child should be placed with a member of the child's extended family, whether they are Indian or not; a member of the child's tribe; or a member of another Indian tribe.

Veronica's birth mother, Christina Maldonado, who is not Native American, put her daughter up for adoption because she claimed she did not have the resources to care for the baby. She stated that she received no financial support from Brown, and, according to public records, Brown abdicated parental responsibility during the pregnancy and was not present at the birth of Veronica.

The state of South Carolina finalized the adoption and terminated Brown's rights as a father for lack of action on his daughter's behalf. Brown waived his right to contest the adoption. At that time, Veronica, then an infant, legally become the daughter of the Capobiancos.

Four months later, Brown changed his mind and decided that he wanted custody despite the fact that he had never met the baby. His lawyers filed suit against the Capbiancos to gain custody of Veronica.

No other American would be able to challenge legal parental rights, but Brown cited the Indian Child Welfare Act, which affords him special standing that no Americans but Native Americans enjoy. Brown's application of the Indian Child Welfare Act is widely seen as a perversion of its intent, because this is the first time the law has been used to dissolve a family unit.

On Dec. 30, 2011, a South Carolina family court judge ruled that although the state recognized the Capobiancos as the legal parents of Veronica, the Indian Child Welfare Act trumped South Carolina law.

The Capobiancos were ordered to pack up Veronica and give her to Brown, a man she had never met. He put her in a truck outside her family home in Charleston and drove her to his home in Oklahoma (incidentally, not on the reservation).

The Capobiancos appealed the judge's decision to the Supreme Court in South Carolina. During the pending court case the Capbiancos pleaded for visitation, but Brown prohibited them from having contact but for one occasion on New Year's Eve 2011.

On April 17, 2012, in a closed hearing, the South Carolina Supreme Court heard arguments from both sides. The ruling that affirmed the family court judge's decision to remove Veronica from the Capobiancos' home came down at the end of July.

The adoption community has been devastated by this news. Enabling a birth parent to claim parental rights at any point in a child's life without concern for that child's welfare or that child's legal family casts more shadows and doubt onto a process already plagued by confusion and swathed in difficulty. This case may make it that much more difficult to find adoptive parents willing to open their homes and hearts for fear of having their child ripped out of both.