Capobiancos: 'This is the best day we've had yet' - KTUL.com - Tulsa, Oklahoma - News, Weather & Sports

Capobiancos: 'This is the best day we've had yet'

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Veronica with her biological father, Dusten (Courtesy: Cherokee Nation) Veronica with her biological father, Dusten (Courtesy: Cherokee Nation)

CHARLESTON S.C. (WCIV) -- The U.S. Supreme Court sided Tuesday with the adoptive family of a girl who had been taken away from them after her biological father tried to exercise his rights to her under the Indian Child Welfare Act.

"This is the best day we've had yet," said Melanie Capobianco Tuesday afternoon. "We're numb in a happy way right now."

The Capobiancos have not had contact with Veronica since New Year's Eve 2011 when she was 27 months old.

"We're happy, overwhelmed and trying to enjoy this celebration now with friends and family," Melanie Capobianco said. "We just can't wait to see her again."

When asked if the years long fight was worth it, Matt Capobianco responded, "Oh god, yeah."

"This has been a living hell for them," family representative Jessica Munday said from the Capobiancos home on James Island after the decision was handed down.

Veronica's birth mother, Christy Maldonado, said in a statement Tuesday that she was happy about the Supreme Court's decision. The Capobiancos said they had talked to Maldonado earlier in the day and she expressed her happiness at the Court's opinion.

"Today's opinion makes clear that Veronica's adoption should have been finalized long ago, and gives us all the opportunity to continue fighting for Veronica's best interests. I'm also hopeful it will spare many other children and families the heartbreak that Veronica, the Capobiancos, and I have had to endure," she said.

"Matt and Melanie are part of my family, and they have treated me like part of theirs.  I'm hopeful that we will all be reunited with Veronica very soon," Maldonado added.

The Chief of the Cherokee Nation said Tuesday afternoon that he was disappointed in the Court's decision, saying he believes it is in Veronica's best interest to stay with her biological father, Dusten Brown.

"While we are thankful that the U.S. Supreme Court upheld the Indian Child Welfare Act and protected a law vital to the survival of Indian country, we are deeply, deeply disappointed that this case was not fully resolved," said Cherokee Nation Principal Chief Bill John Baker.

Brown echoed the sentiments of Baker, saying this has been a long and difficult struggle.

"I would not want any other parent to be in this position, having to struggle this hard and this long for the right to raise their own child. I have fought for my daughter and will continue to fight for her and her right to be raised by her family," he said. "She has been with me for over a year and a half and she is so happy. She loves and is loved by her sister, grandparents, aunts, uncles and cousins. She is where she belongs. I hope and pray her rights are protected and she's allowed to stay with her family."

Now the two sides prepare for the next step -- a return to South Carolina's courts and a renewed custody battle. The Capobiancos said they were working with their attorneys now to expedite the process, but they did not know how long the next step would take.

Lisa Smith-Butler, a family law professor at the Charleston School of Law, said she believes Dusten Brown, Veronica's biological father, no longer has a legal leg to stand on now that he can no longer use the Child Indian Welfare Act as a means to keep his daughter.

"The only thing he could argue is his parental rights were not terminated properly under Oklahoma or even under South Carolina state law.  That's what he'll have to argue.  That's his only argument," she said.

And one Veronica's biological father could very well make.

"I find it very interesting that anywhere in this country it would be valid to surrender parental rights by text," said Brown's attorney, John Nichols. "He did not go through the legalities or the realities of doing that.  His text message was that he would agree for Ms. Maldonado to have the rights while he was in Iraq being bombed every day."

Nichols says his client plans to do everything in his power to keep Veronica with her new family in Oklahoma.

"She has developed quite a bond with him and his wife who she sees as her mother now and she's doing tremendously well," said Nichols.

Nichols says Brown is disappointed with the ruling but hopeful for the future.

"I think that our system of justice is fair.  I think our system of justice at the end of the day would not tell a biological father that's had custody of this child for 18 months that folks can come in and just take that child now and adopt her," he said.  "Let me tell you about Dusten.  He's a very simple guy.  He loves his country and he loves his daughter."

In a decision handed down Tuesday morning, Justice Alito said the girl's classification as an Indian because she is 3/256ths Cherokee was not grounds enough for her to be taken "from the only parents she had ever known and handed over to her biological father, who had attempted to relinquish his parental rights and who had no prior contact with the child."

The High Court overturned the South Carolina Supreme Court. Now the case will head back into South Carolina family courts where they will decide what is in the best interests of Veronica, who has been living with her biological father since December 2011.

READ: The full opinions of the case

Alito said in his majority opinion that the involuntary termination of parental custody law does not apply when the parent never had custody.

"Finally, we clarify that §1915(a), which provides placement preferences for the adoption of Indian children, does not bar a non-Indian family like Adoptive Couple from adopting an Indian child when no other eligible candidates have sought to adopt the child," Alito penned.

Alito, joined by Justices Roberts, Kennedy, Thomas and Breyer, said three provisions of the ICWA law applied to the case, but said that because of the biological father's text message consenting to give up his parental rights, the ICWA claim was rendered moot.

After Veronica's birth, the Capobiancos served the biological father with a notice of intent to adopt. He claimed in filings that he was unclear on what he was surrendering his rights, the birth mother or the Capobiancos, which triggered the custody battle in South Carolina state courts.

That's when the ICWA first came into question.

"The State Supreme Court first determined that the ICWA applied because the case involved a child custody proceeding relating to an Indian child," Alito wrote. "It is undisputed that, had Baby Girl not been 3/256ths Cherokee, Biological Father would have had no right to object to her adoption under South Carolina law."

He went on to say that the South Carolina Supreme Court ruled that the Capobiancos did not make a strong effort in alerting the biological father, which could result in "serious damage" to Veronica.

"That holding was in error," the opinion reads.

Breyer's concurring opinion says the ICWA does not explain how to handle cases of absentee Indian fathers, adding that the case before the court did not involve a father who had visitation rights or had been paying child support.

The opinion says that while the ICWA was created to help preserve the cultural identity of Indian tribes in the U.S., the Supreme Court found the usage of ICWA in this case "would put certain vulnerable children at a great disadvantage solely because an ancestor -- even a remote one -- was an Indian."

The Court goes on to say that allowing an Indian parent to use the ICWA "trump card" at the eleventh hour to prevent prospective parents from legitimate adoptions would likely turn other parents away from adopting Indian babies for fear of the same fate.

"We therefore reverse the judgment of the South Carolina Supreme Court and remand the case for further proceedings not inconsistent with this opinion," it reads.

Munday said the Capobiancos hope the Supreme Court's decision will keep similar custody battles from happening to other families.

Melanie Capobianco said Victoria has a room ready in their home, that it's remained unchanged since she was taken to Oklahoma in 2011.

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