COLUMBIA, S.C. (AP) — A Cherokee girl living in Oklahoma should be immediately turned over to her adoptive parents in South Carolina after her biological father missed a scheduled meeting with them accompanied by the girl, a judge has ordered.
The case file is sealed, but Monday's order from South Carolina Family Court Judge Daniel Martin was obtained by WCBD-TV of Charleston and posted on its website.
Matt and Melanie Capobianco have been trying to adopt 3-year-old Veronica since her birth in 2009 and raised the girl for two years. She has been living with her biological father, Dusten Brown, in Oklahoma since 2011, when South Carolina's Supreme Court ruled that federal law governing the placement of American Indian children favored him as her custodian.
The high court based its ruling on the 1978 Indian Child Welfare Act, which seeks to keep Indian children from being taken from their homes and placed with non-Indian adoptive or foster parents.
The Capobiancos, a couple living in the Charleston area, appealed to the U.S. Supreme Court, which ruled that the state should determine the girl's placement. The state's highest court subsequently ordered Martin to finalize the couple's adoption of the girl, which he did last week.
As part of that ruling, Martin also approved a transition plan that laid out a gradual process for reintroducing the girl to the Capobiancos. According to the court, Brown failed to show up, with the girl, for the first of those scheduled gatherings on Aug. 4.
Martin wrote in his decision that he was asking state and federal prosecutors to immediately locate and transfer the girl.
"Baby Girl Veronica is being unlawfully withheld from her lawful parents," Martin wrote.
In an interview with The Associated Press on Wednesday, the Capobiancos expressed their sadness that the case had risen to this level and reiterated their desire to reintroduce Veronica to life with them, in South Carolina, as seamlessly as possible. The couple also pointed out that they are familiar with the emotions Brown and his family might be facing as they prepare to say goodbye to the girl — something the Capobiancos did nearly two years ago.
"We understand their heartbreak and their pain better than anybody," Melanie Capobianco told The Associated Press. "I hate that all of this has happened. It makes me sad because I do know how they feel."
Veronica has been living with Brown's wife and parents in Nowata in northeastern Oklahoma while he serves a monthlong stint with the Oklahoma National Guard. In a statement issued Tuesday, a Guard spokesman said Brown is slated to return Aug. 21.
Cherokee Nation Assistant Attorney General Chrissi Nimmo called it "physically and legally impossible for Dusten to comply with the current order" to show up in court with Veronica, and said she anticipated further legal challenges to the couple's adoption. She did not elaborate.
Brown is also pursuing custody of his daughter through the Oklahoma court system. Last week, the U.S. Supreme Court denied his request to stop the South Carolina adoption proceedings.
The girl's biological mother, who is not Indian and favored the adoption, has also filed a lawsuit against the federal government claiming the Indian Child Welfare Act is unconstitutional, and has asked U.S. Attorney General Eric Holder to declare some parts of it illegal. Chrissy Maldonado claimed that the law uses race to determine with whom a child should live, and therefore is a violation of equal-protection laws.
Several American Indian groups are also pursuing a federal civil rights case, saying a hearing should be held to determine if it is in Veronica's best interest to be transferred to South Carolina.
Kinnard can be reached at http://twitter.com/MegKinnardAP