NOWATA, Okla., and CHARLESTON, S.C. — 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,” said Brown.
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 be considering 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.
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.
The Supreme Court has considered the act only once, 18 years ago, but with similar wrenching results. The justices overruled a state’s decision about twins who had been placed several years earlier with a non-Indian family and said tribes must have the final decision on adoptions involving those who live on reservations.
Justice Antonin Scalia over the years has said it was one of the toughest decisions he ever had to make. But when the tribe couldn’t find a proper placement with an Indian family, it later decided it was in the best interests of the children to remain with the adoptive parents.
A family court judge in South Carolina cited that deference to the act in ruling that Brown deserved custody of Veronica. The state supreme court upheld the ruling in a 3-to-2 decision that reflected its conflict.
The decision came with a “heavy heart,” 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.”
At the same time, the court majority said, the law dictated a strong preference for keeping the child with her father, and there was no evidence that “Baby Girl would not be safe, loved and cared for if raised by Father and his family.”
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 agreed to meet with a reporter to give his side of the story. He lives in Nowata, Okla., a small town in the northeastern corner of the state, with Veronica and his wife Robin, whom he married in June.
What he wants to make clear, he said, is that “I never gave up on my daughter.”
“When I found out she was being put up for adoption, I said no, she belongs with one of her family members, her mom or her dad. If her mother didn’t want her around, I wanted her. The best place for her was with me.”
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.
“I just wanted my ex-fiancee to have full custody and rights to her, with all that was going on with me being a soldier.”
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 — he is a technician at Boeing, she has a doctorate in developmental psychology — 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.”
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 on 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.”
Rothfeld and the U.S. government say Congress’s law is not based on race but on the sovereignty of tribes as political entities.
Such legal arguments seem abstract to the families who love the girl involved in this case.
“She’s not ‘Baby Girl,’ she’s our daughter Veronica,” said Matt Capobianco.
Both sides say outsiders can’t truly understand their feelings or motivations.
Brown said he does not read about the case or the criticism he has received as the father who “texted away his rights,’ as his actions have been described. The Capobiancos say they know they have been criticized for publicizing the case — they’ve appeared on “Dr. Phil” and with CNN’s Anderson Cooper — and some people think they should let Veronica get on with her new life.
“What parent would just give up on trying to protect their child, keep their child, do what’s best for her?” Melanie Capobianco said. “She’s our daughter; we raised her since birth. That we’re supposed to just give up — it just never even occurred to us.”
She speaks carefully, because she says she realizes that one day Veronica will learn about the fight over her and what was said.
She’s just a little girl, Melanie Capobianco said, but she already has such a long history.