Matt and Melanie Capobianco spent their adopted daughter Veronica’s third birthday 1,200 miles away from her. They wrote their wishes for her on purple balloons and released them into the sky. The day before, the local newspaper ran a story quoting the lawyer for Veronica’s biological father, who said the girl no longer recognized the Capobiancos in photos. The couple says they find that hard to believe.
But so much of the past 10 months seems barely imaginable. The Capobiancos are private people, but the story of how they lost custody of their adopted daughter to her biological father has run in publications around the country and on national television, including CNN and Fox News. Their story will air on Dr. Phil’s show later this fall. Melanie’s cousin, a Merchant Mariner, even saw them on military television on his way to Singapore.
“We keep telling ourselves, it’s not about us, it’s about Veronica,” Matt says.
Veronica’s biological family worries that the media exposure puts the girl at risk, emotionally and physically. However, Melanie, a developmental psychologist, worries how the move away from the only parents she has ever known will affect their adopted daughter. Veronica spent her entire life in a home on James Island, a five-minute drive from Folly Beach. Then, one night, she made the long drive to Oklahoma with a father she had never met.
“People try to portray us as these rich people, but I was working at an auto body shop at the time,” says Matt, who now works for Boeing. Before this custody case, the couple poured their income into seven unsuccessful in vitro fertilization attempts and then the legal and travel expenses of finding Veronica’s birth mother, a Mexican woman living in Oklahoma.
“We scraped our money to do the adoption in the first place,” Melanie says. “We saved and borrowed for that.”
Matt cut Veronica’s umbilical cord in an Oklahoma delivery room, and the couple spent every day of the girl’s life with her until last Dec. 31. To date, they also have spent all but four months of Veronica’s life in court battles, first in Charleston County family court, then the South Carolina Supreme Court. Now they plan to take their case to the U.S. Supreme Court.
A Charleston County family court judge ordered the Capobiancos to turn over the girl to her birth father, Dusten Brown, on New Year’s Eve. Brown, an Oklahoma resident and registered Cherokee, had contested the adoption under the Indian Child Welfare Act, a federal law designed to preserve Native American families.
Today, Veronica Capobianco goes by the name Ronnie Brown and attends Native American stomp dances with her father. But if she were to return to the Capobiancos, she would find everything as she left it. Her child-sized pink appliances — a refrigerator, stove, and sink — still sit to the right of the grown-up kitchen. Her toys wait in neat bins in the living room. Her high chair still claims the head of the dining room table.
“When this happened, it didn’t occur to us to cut our losses,” Melanie says. She pauses and then adds, “We recognize there’s a good chance we’ll lose.”
By now most people around here know something about Veronica. They see the purple Save Veronica signs and bumper stickers in business windows and parking lots. Her swath of curly dark hair has become almost iconic. But what most local residents don’t understand is how this happened.
Four months after Matt and Melanie Capobianco brought Veronica home, an attorney called them to let them know that Dusten Brown had filed for paternity and custody. A few more months passed, and the Cherokee Nation joined the case, claiming a violation of the Indian Child Welfare Act. That law, passed in 1978 to keep tribes together, also deems the Capobiancos’ unwavering drive to care for Veronica less significant than her biological tie to the Cherokee Nation. The Indian Child Welfare Act mandates that a child with Native American heritage grow up with blood relatives or, if that option is unavailable, with a member of his or her tribe. Social workers can place the child with adoptive or foster families from outside the tribe, but only after exhausting those possibilities. The cases that arise from this law prove as divisive as abortion or gay marriage. Some people take this law personally.
That’s how the Capobiancos arrived at the Charleston Place Hotel on New Year’s Eve to meet Brown, his parents, and his attorney in the lobby. A surreal scene unfolded.
Holiday revelers awaiting the midnight hour strolled past in novelty New Year hats, brandishing noisemakers. Employees at the Charleston Grill readied their tables, and great thinkers who had convened for Renaissance Weekend wore nametags and shook hands. Photographers and television cameras lined up near the model trains, uncertain how this exchange would play out, as passersby stopped to ask the media which celebrity they were staking out. Brown refused to meet under the circumstances, and two police officers escorted the Capobiancos to an attorney’s office at the corner of Market and Meeting streets. Matt carried Veronica over his shoulder, as she looked back wide-eyed at the dozen supporters and friends, plus a throng of news reporters and photographers trailing behind them.
A court filing on behalf of the Capobiancos said Brown agreed to give up his rights to Veronica to his estranged ex-fiancée, so long as he could give up any child support obligation along with it. Brown’s attorney, Shannon Jones, instead argued that her client expected Veronica’s biological mother to raise their daughter and signed away his rights to her alone.
The two families spent nearly two hours inside Jones’ office, where Veronica met her father for the first time. Matt and Melanie Capobianco eventually walked out crying, their arms empty.
Dusten Brown and his parents stayed upstairs in the law office, as an attorney peered from the windows to find a few reporters still camped outside. He eventually pulled Brown’s blue pickup truck around to Market Street in front of Bubba Gump Shrimp Co., and Brown walked from the office and out through the adjoining restaurant, carrying Veronica. His mother carried bags of her toys and clothes that the Capobiancos had brought.
At the time, Brown offered a “no comment” as his lawyer pushed a television camera away.
A few hours later, the ball dropped in Times Square. Couples kissed and clinked champagne glasses in the Charleston Place Hotel, where Matt and Melanie Capobianco spent their final moments alone with Veronica. And an exhaustingly litigious new year began.
For people who live in South Carolina, it’s easy to relate to Matt and Melanie Capobianco. Native American residents only account for 0.4 percent of the population, according to 2010 U.S. Census figures, and most people here have never heard of the Indian Child Welfare Act. Terry Cross, founder of the National Indian Child Welfare Association in Portland, Ore., says Veronica’s adoption should have been considered high-risk and handled carefully, given her heritage. As a member of the Seneca Nation, Cross blames shoddy legal work during the early adoption proceedings for the legal chaos that followed. An attorney for Veronica’s biological mother misspelled Dusten Brown’s name, submitting it to the Cherokee Nation as “Dustin,” and provided an incorrect birthdate for Brown. No one verified the information.
“My heart goes out to the Capobiancos,” Cross says. “No one should be in this position.”
But he called the court decision a victory for the tribe, and he says that Veronica is a necessary link in a vanishing community. “Tribes cannot continue to exist if children are removed at such rates as were being done in the past,” Cross adds. “When you lose someone in that network, it is a trauma to the entire network. Protecting our children and being able to bring them home is part of our healing and recovery.”
Cross says the reasons the Indian Child Welfare Act was enacted remain very real in parts of America, most notably in Alaska, where social workers continue to mistake poverty for neglect and remove children from their birth parents. “The nature of [Veronica’s] case is very unusual,” Cross says. “There are perhaps a half-dozen since 1978 with this set of circumstances but hundreds, literally thousands, each year where ICWA prevents Native American children from being taken away from their families.”
Marcia Zug, a University of South Carolina law professor, says that many people in South Carolina identify Native Americans as gambling operators, capitalists with special protections. The reality, she explains, is much starker.
“All they see is the casino Indians, but that’s not the majority of them,” Zug says. “They’ll tell you what life is like: They are the poorest population in the country. Their mortality rates are higher than anybody else. They die of diseases nobody else gets. There’s still a big divide. A lot of people say this is guilt for the past, but do we believe Indian tribes should have a future? If you see a need and right for Indian tribes to exist, you will see the need for the Indian Child Welfare Act.”
Before teaching in South Carolina, Zug worked on a high-profile Indian Child Welfare Act case in New York. She notes that Indian boarding schools were around mere decades ago and that the number of Native American children in foster care remains grossly disproportionate to their share of the population. “In some places it’s 30 percent of Native kids that are in foster care, but only 1 percent of the population is Native,” she says. “That’s not sustainable.”
Joe Kroll, executive director of the North American Council on Adoptable Children in Minnesota, points to the staggering number of children placed in homes outside their culture. Prior to the Indian Child Welfare Act, 80 percent of American Indian-adopted children in the United States wound up in non-Native homes from 1969 to 1974, he says. Even with the law in effect, the number still remained at 68 percent in 2010, he adds.
“To us, race and culture are big things,” Kroll says. In 1986, he adopted a Korean girl and bases his opinions on experience. “Personally, watching it with my daughter, after all these years she struggled with her identity and figuring out who she was.”
Kroll’s work primarily focuses on children older than nine, children who prove tougher to place in prospective homes. He hates cases such as Veronica’s, where two parties both want the child. “They’re painful for everybody,” he says.
And they’re not all that unusual.
Chrissi Nimmo, the attorney for the Cherokee Nation in Veronica’s case, has 14 other Indian Child Welfare Act cases assigned to her right now. The tribe currently is involved in 1,100 Indian Child Welfare cases, she says. “To say one tribe has 1,100 of these cases means there is a lot more going on,” Nimmo says. “In Oklahoma, we are one of 38 tribes. I think the reason people don’t know about the Indian Child Welfare Act or hear about child welfare cases is because they are private.”
Nimmo says Brown has kept his media interaction limited to that single “no comment” on New Year’s Eve to protect Veronica. “He loves her, and his family loves her,” Nimmo says. “I have no doubt she’s going to thrive in this environment.”
On the other side of the courtroom, Mark Fiddler isn’t so sure. The Minneapolis lawyer and founder of the Indian Child Welfare Law Center began working for the Capobiancos when they appealed the family court ruling to the S.C. Supreme Court. He rebuts the Indian Child Welfare Act argument by citing Brown’s lack of involvement in his daughter’s early life. Under South Carolina law, Brown would hold no rights to Veronica because he provided no support, financial or emotional, prior to the custody lawsuit.
To say that the Indian Child Welfare Act trumps state law “would be fine if Congress meant that at the time, in 1978, for an unwed father with no relationship to the child to win custody solely on the basis of biology,” Fiddler says. “I seriously doubt that’s what they intended.”
Fiddler expected to win at the state Supreme Court level. He also expected a decision as early as 30 days. Instead, the five justices took more than three months. And they came back with a 3-to-2 opinion upholding the family court decision. Chief Justice Jean Toal wrote that she and the majority affirmed the family court order “with a heavy heart.”
“Father did not consent to Baby Girl’s adoption, and we cannot say beyond a reasonable doubt that custody by him would result in serious emotional or physical harm to Baby Girl,” Toal wrote. “Thus, under the federal standard we cannot terminate Father’s parental rights.”
In an impassioned dissent, Justice John Kittredge wrote that the majority opinion lost sight of Veronica’s best interests. “I believe it has recast the facts to portray Father in an undeserved favorable light, thus creating the illusion that Father’s interests are in harmony with the best interests of the child,” he wrote. “The reality is Father purposely abandoned this child and no amount of revisionist history can change that truth.”
Kittredge added that the court “blames the birth mother and the adoptive couple — everyone except the Father, whose vanishing act triggered the adoption in the first instance.”
Justice Kaye Hearn joined with Kittredge, pointing to the fact that Brown chose to give up his rights to Veronica, rather than support her. “In stark contrast to Father’s behavior in completely shirking his parental responsibilities, every action taken by Adoptive Couple since they learned she was going to be their child has demonstrated their deep and unconditional love and commitment to Baby Girl,” he wrote.
Toal noted in the majority opinion that the Indian Child Welfare Act presumes that placing a child within her tribe is in the child’s best interest. The Indian Child Welfare Law Center’s Fiddler, a member of the Turtle Mountain Band of Chippewa Indians, instead worries that the decision sets a dangerous precedent. “The effect of the majority’s decision is a man can come into an adoption case at any time with or without doing anything,” he says. “That’s just injurious for children and adoptive parents, and that’s inexcusable.”
On one point all parties can agree: What makes Veronica’s case so special is how well-known it has become. The publicity owes, in large part, to a Capobianco family friend who also happens to run a marketing firm in Charleston.
Jessica Munday, a mild-tempered woman with a Southern lilt to her voice, is charmingly persistent. She met Melanie Capobianco through work a decade ago, and the two women maintained a close friendship over the years.
Melanie and Matt Capobianco initially followed their attorney’s advice not to speak to reporters, but then they received the court order on New Year’s Eve. Munday pulled up to their driveway in her black Suburban ready to work. For the past 10 months, she has become an Erin Brockovich-type character when it comes to bringing attention to Veronica’s case and now to the Indian Child Welfare Act in general. She polices the “Save Veronica” social media sites, screens any messages before they reach the Capobiancos, and maintains contact with reporters and politicians around the country. Munday initially assumed the role of managing press inquiries and relieving her friends of that added burden. But she wound up hearing from people around the country — some who wanted to help and some who needed help. “I heard from other families in similar situations,” Munday says. “As someone that cares about people, I couldn’t just say, ‘I’m sorry.'” Instead, she set about changing federal law.
Munday and others, including Fiddler and Melanie Capobianco, incorporated the Coalition for the Protection of Indian Children and Families in Minnesota a few weeks ago. The members have asked federal lawmakers to amend the Indian Child Welfare Act. Among their requested amendments, they want to ensure that fit birth parents can choose guardians for their children without concern for heritage, and they want to limit a parent’s right to revoke consent to an adoption for 30 days, not a year. They want to avoid future Veronica scenarios. Munday has e-mailed their ideas to the author of the three-decade old Indian Child Welfare Act, former U.S. Sen. Jim Abourezk of North Dakota.
“The reason the law was passed was to prevent an adoption unless the tribe OK’d it, and I really don’t see a reason to change that,” Abourezk says. “There are times when the outcome might be heartbreaking for white families, but, overall, to change the law to prevent someone’s heartbreak might cause more heartbreak for Indian families … I wish there were a way to prevent heartbreak for everyone.”
Abourezk says he keeps responding to Munday’s requests for support with a polite “no.” But she keeps in touch anyway.
On a recent night, Munday sat on her porch after she had put her own three children to bed and composed yet another e-mail. “It dawned on me: This is really big,” Munday says. “It started with my friends and watching what happened with their daughter, but this movement could potentially save thousands of people from what Matt and Melanie went through.”
Munday launched a petition to “Save Veronica” and collected 20,000 signatures less than a month after Brown took custody of the girl. Munday drove the document to Columbia, presenting it to any lawmaker’s office with a staff member who would listen, and, on a chance encounter, spoke to Gov. Nikki Haley in person.
In July she flew to Washington to discuss the Indian Child Welfare Act with federal officials and interested parties on both sides of the issue. She plans to return to Capitol Hill again this month.
“We want Veronica to come home, first and foremost,” Munday says. “But, unfortunately, changes to the law would not have an impact on her case. What would be amazing is if Veronica’s Law came about because of all this.”
At times, Munday struggles to explain her extracurricular lobbying to her own children. Her son asked her as they rode home from school the other day why a law would separate a child from her mommy and daddy. “How do you explain that to a fifth grader?” Munday asks. She hopes, one day, that other parents won’t have to.
Despite all the Indian Child Welfare Act cases playing out around the country each year, the U.S. Supreme Court has taken up only one. Both Nimmo and Fiddler have petitioned the highest court in the past — unsuccessfully.
Only a 1989 case of the Mississippi Choctaw Indians versus adoptive parents named Holyfield ever reached Washington. In that case, the Holyfields, a non-Native American couple, adopted illegitimate twin babies after their births 200 miles away from the Choctaw reservation. The tribe disputed the adoption, but a county court judge overruled the tribe’s motion. The Supreme Court, citing the spirit of the Indian Child Welfare Act, later reversed the county court’s decision. The birth mother in the case had chosen to leave the reservation so that the Holyfields could raise her children away from the tribe, but the justices found that Native American parents cannot skirt the law geographically by leaving the reservation to give birth or to place a child up for adoption.
Fiddler thinks Veronica’s case stands a good chance of being picked up by the U.S. Supreme Court, given varied state interpretations of the federal law. Plus, the Capobiancos will bring their case to Washington with something perhaps even more promising than a compelling argument: an insider.
Lisa Blatt has argued a record 30 cases before the U.S. Supreme Court, more than any other woman. She also won 29 of those cases. Blatt has argued on an array of subjects: health care, pharmaceutical manufacturers’ rights, disability benefits, and a challenge to the Environmental Protection Agency. Washingtonian magazine named her one of the “100 Most Powerful Women in Washington,” and she agreed to work on Veronica’s case for Matt and Melanie Capobianco pro bono. The Capobiancos know that, given the history of the Indian Child Welfare Act and of their own case, their plea might never reach the U.S. Supreme Court, but they have to try.
“That’s our daughter,” Matt says. “You never stop fighting for your child.”
The couple has spoken with Veronica only once since New Year’s Eve, the day after she arrived in Oklahoma. “Mommy, Daddy. I love you,” she told them.
Matt and Melanie Capobianco rely on the company and distraction of good friends but acknowledge that their lives have been changed forever. Melanie recently watched a baby throw a tantrum in a restaurant while dining with her mother. She saw the parents’ embarrassed looks and remembered that feeling. “Then I thought, ‘God, I wish we were in their place,'” she says.
She and Matt celebrated Veronica’s third birthday at a quiet dinner this year. They know Halloween will be tough, as will Thanksgiving and then Christmas. “Everything we do, we’re reminded she’s not here,” Matt says.
They won’t take her photos down inside their home, and they won’t put her toys away. They have sent her packages, and Melanie has called Brown’s home to speak with Veronica once a week, every week, until recently. No one has answered any of her calls after that one brief conversation on New Year’s Day, but Melanie always leaves a message.
A few weeks ago, Brown and his family made a request through their attorneys: They wanted no further contact from the Capobiancos. So on Veronica’s birthday her adoptive parents sent only their wishes written on purple balloons.
Legally, it was all they could do.