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After SCOTUS, Baby Veronica Still Not in Adopted Parents' Custody

By William Peacock, Esq. on September 16, 2013 | Last updated on March 21, 2019

"As the State Supreme Court read [the Indian Child Welfare Act], a biological Indian father could abandon his child in utero and refuse any support for the birth mother--perhaps contributing to the mother's decision to put the child up for adoption -- and then could play his ICWA trump card at the eleventh hour to override the mother's decision and the child's best interests. If this were possible, many prospective adoptive parents would surely pause before adopting any child who might possibly qualify as an Indian under the ICWA."

Adoptive Couple v. Baby Girl's holding was unambiguous. Justice Alito, writing for the majority, held that the Indian Child Welfare Act did not apply to situations where the biological parent had waived his rights pre-birth, and had never taken responsibility before contesting the adoption. The Court vacated the South Carolina Supreme Court's decision mandating a return of Baby Veronica to Dusten Brown, the biological father contesting the adoption.

You'd think that with such a clear holding, that the lower courts' proceedings would be brief. Indeed, the South Carolina Supreme Court awarded custody to adoptive parents Matt and Melanie Capobianco mere weeks after the U.S. Supreme Court's decision.

The battle didn't end there, however, as Brown refused to turn the child over, and filed additional challenges to the adoption in Oklahoma. Since then, South Carolina has requested extradition of Brown for interfering with the Capobiancos' custody rights, a request that Oklahoma Gov. Mary Fallin agreed with.

Though Brown surrendered earlier this month, his extradition hearing isn't until Oct. 3. Until then, the custody battles continue, as the Oklahoma Supreme Court granted a stay late last week, keeping Baby Veronica in the state until the state's high court has the opportunity to hear multiple appeals coming from Oklahoma trial-level courts, reports Tulsa World.

If that isn't complicated enough, the Cherokee Nation courts have also asserted jurisdiction, as Baby Veronica, like her biological father, is part-Cherokee. The tribe's court granted temporary custody to Brown's family.

Déjà Vu in Near-Identical Case

Last week, an Oklahoma County District Court judge awarded custody of Baby Desaray to a Native American tribe and ordered that the child be returned to the state from her adoptive parents' home, which is also in South Carolina. The baby's father, who is not Native American, is also seeking custody. Meanwhile, the adoptive parents removed the four-month-old child to South Carolina without obtaining an interstate compact agreement first, which could complicate matters even further, reports the Daily Mail.

With three parties claiming custody, and questionable paperwork for the adoptive parents, this case, despite being so similar to Baby Veronica's ordeal, could end very differently.

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