Fighting for Veronica: Lowcountry offers support for Capobiancos
A couple addressed a crowd from a makeshift stage at Colonial Lake on Saturday night, while 29 luminarias lit the still water behind them -- one for each day since they last saw their 2-year-old adoptive daughter.
"We are trying to remain strong in the belief that our little girl, our sweet Veronica Rose, will come home, but it's been difficult," Melanie Capobianco said as her husband, Matt, stood beside her. "We miss her so much."
The James Island couple tried in-vitro fertilization seven times before deciding to adopt in 2009. Four months after they brought Veronica home, her biological father, a 30-year-old Oklahoman, Dusten Brown, filed for paternity and custody.
Brown is a registered member of the Cherokee Nation, and a family court judge ruled in his favor under the Indian Child Welfare Act, a federal law designed to preserve Native American families.
The judge ordered the Capobiancos to turn over Veronica, and Brown and his parents drove her back to Oklahoma on New Year's Eve.
In the days since, the Capobiancos' friends have gathered more than 20,000 signatures on a "Save Veronica" petition, which they delivered to federal lawmakers' offices and to Gov. Nikki Haley herself last week.
On Saturday the same friends invited supporters to meet them at Local, a coffee shop in West Ashley, to help raise money for the Capobiancos' mounting legal bills, then later at Colonial Lake for hope and prayer by candlelight.
Veronica's case now rests in the state Supreme Court. Experts' personal convictions seem to influence their beliefs about how the case will proceed.
Stephanie Brinkley, a Charleston adoption attorney with a personal interest in the case, thinks the Capobiancos could win under a provision called the "existing Indian family doctrine."
The doctrine argues that the Indian Child Welfare Act applies only when the child has been removed from an existing Indian family. Brinkley said Brown does not meet those qualifications.
An attorney for the Capobiancos noted in court that Brown never spoke of his Native American heritage to Veronica's mother.
A filing on the couple's behalf also states that Brown testified that he would give up his rights to Veronica to her mother if he would not be responsible for child support, though Brown's attorney denies her client ever made that statement.
"Federal law trumps state law, but those that have applied the 'existing Indian family doctrine' haven't been overturned," Brinkley said. She noted that most of the cases that successfully argued the doctrine unfolded in courtrooms in the Southeast.
"What does that mean for South Carolina?" Brinkley asked. "It means we could go either way."
She pointed to an early application of the "existing Indian family doctrine," a 1986 case involving a Kansas Kickapoo tribe member who sought custody of his 7-year-old daughter for whom he had provided no previous support, financial or otherwise.
Trial court determined that the girl was not an "Indian child," despite her biological father's bloodline.
The Kansas Supreme Court agreed, citing another case from 1982 in which a non-Indian mother's illegitimate child had never been in the father's custody. In that case, the courts ruled against the father and granted an adoption.
"It's a glimmer of hope," Brinkley said. "I know it's a minority position, but most courts that have applied it have been in the Southeast."
Whose best interest?
Marcia Zug, a professor at the University of South Carolina's School of Law who specializes in family and Indian law, said only a handful of states have applied the "existing Indian family doctrine."
She added that Brown should face little challenge on those grounds, given his status as a registered member of the Cherokee Nation.
"It's a harder argument to make when you have one actively involved Indian parent," Zug said.
Zug, who worked on a high-profile Indian Child Welfare Act case in New York, said the law serves solely to prevent destruction of a dying culture.
That purpose, at times, overrides the well-being of an individual -- even when that individual is a toddler.
"Is this the best thing for this little girl?" she asked. "Probably not, but (the law) is about the best interest of this tribe."
Former U.S. Sen. Jim Abourezk of North Dakota, who authored the Indian Child Welfare Act, said in a previous interview with The Post and Courier that the law, as used in Veronica's custody dispute, misses its intent.
He called this case "something totally different than what we intended at the time."
The Cherokee Nation alone is involved in about 1,100 active Indian Child Welfare cases involving some 1,500 children, according to an attorney for the tribe. Zug said every child returned to a Native American parent preserves the tribe that much longer.
Pointing to Veronica's case, she said, "This is exactly what the law is for.
"I don't see any legal ground for the Supreme Court to overturn it," Zug said. For the Capobiancos to win, she added, "the court would have to apply the best interest of the child, which would not be applying the law."
Sharing the story
Jessica Munday, a family friend of the Capobiancos, told the crowd that gathered at Local coffee shop on Saturday how the couple avoided public attention in their case until the day they received word that they would have to hand over Veronica.
Now, with Veronica more than 1,000 miles away, Munday asked everyone there to continue to share the girl's story.
The people who came out Saturday helped build a legal fund for the Capobiancos, one $10 donation at a time. They bought art inspired by the curly haired toddler and "Veronica Rose" perfume that Matt Capobianco's chemist friend concocted to smell like cookies and cake.
Many supporters wore purple, Veronica's favorite color, and scrawled messages in colorful markers on a banner for her -- sending love, telling her to come back soon and, for some, saying they can't wait to meet her.
Advocates from more than 14 countries have joined the "Save Veronica" movement through social media, and an estimated 200 people attended the two local events Saturday.
Taking the microphone again at Colonial Lake, Munday acknowledged that even 1 million people signing a petition can't change what happens next in the S.C. Supreme Court. Then she added, "But we can pray."