Native American roots trump in adoption battle over toddler

By Harriot McLeod

(Reuters) - The parents of a 2-year-old Cherokee girl adopted at birth are fighting to get her back after a court ruling based on Native American heritage allowed the biological father she has never known to take her away on New Year's Eve.

Authorities took Veronica Capobianco from Matt and Melanie Capobianco of Charleston, South Carolina, on December 31 and turned the toddler over to father Dusten Brown, a member of the Cherokee Nation who had sued for custody under the federal Indian Child Welfare Act.

The Capobiancos legally adopted Veronica at birth through an open adoption in Oklahoma in 2009, said the couple's spokeswoman, Jessica Munday.

"Matt cut the umbilical cord, and they were the first people to hold her," Munday told Reuters in an interview on Sunday.

The Capobiancos are grieving for their adopted daughter, and an appeal to the South Carolina Supreme Court is in the works, Munday said.

"They're devastated," she said. "They're sitting in a house that has toys and her room, but they're not removing anything because they fully believe in their hearts that she will come home."

According to "Save Veronica," a website set up by supporters of the Capobiancos, Veronica's birth mother, Christina Maldonado, offered the child for adoption because Maldonado could not care for her and had no support from Brown.

The biological parents were not married, and Brown was in the Army in Oklahoma when Veronica was born in September 2009, Munday said.

When Veronica was four months old, in January 2010, Brown agreed in writing that he would not contest the adoption, Munday said. But within two weeks, he changed his mind and began petitioning for custody.

South Carolina law ends a father's paternity rights when he has not provided pre-birth support or taken steps to be a father before and shortly after birth, Munday said.

But the 1978 federal law that protects American Indian families from being separated trumped South Carolina law in an appellate court ruling issued in Columbia, South Carolina, on December 30, Munday said.

The Cherokee Nation is a federally recognized American Indian tribe with almost 200,000 members in Oklahoma. Brown is living there with the child in his care, Munday said.

Brown's attorney did not immediately respond to Reuters' requests for comment.

Chrissi Nimmo, Cherokee Nation assistant attorney general, told an Oklahoma television station last week: "The Indian Child Welfare Act says the most vital resource to the continued existence of tribes are their children."

Attorneys for the Cherokee Nation and Brown have filed a motion for a gag order to prevent the Capobiancos from talking about the case, and the couple is cooperating, Munday said.

Before the gag order was requested, Matt Capobianco told local WCIV-TV: "It's awful. Everybody keeps saying how bad they feel for us, but she's a 2-year-old girl who got shoved in a truck and driven to Oklahoma with strangers."

"I wonder what she's doing, if she's afraid, and we wish we could be there if she's afraid," Melanie Capobianco told the news station.