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Friday, January 11, 2013

Fact Checking Media Coverage of the Baby Veronica Case

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The Baby Veronica Case: Information and Resources

Contact Nicole Adams, Executive Communications Manager, (503) 222-4044, ext. 133
Media Fact Check Matrix
The case of Baby Veronica has garnered much attention this year. NICWA has been following this case closely, carefully reviewing court proceedings, monitoring media coverage, and consulting with partner organizations and others regarding potential legal implications.

NICWA remains committed helping the public understand the complexities of the Indian Child Welfare Act and its application today. Therefore, we have compiled the following information and resources regarding the Baby Veronica case.

Brief Summary of the Baby Veronica Case

The case involves a Cherokee Nation father and a non-Indian mother who at one time were engaged and living in Oklahoma.

Veronica’s father was on active military duty at Fort Sill, Oklahoma, when the mother broke off their engagement while pregnant with Veronica. The father and his family attempted to contact the mother during the pregnancy, but the mother cut off communication a few months before the birth of Veronica.

A few months before Veronica’s birth, her mother began working with an adoption attorney in Oklahoma to adopt the child out to a non-Indian family from South Carolina, the Capobiancos. The father was not informed of these plans until four months after Veronica’s birth and subsequent placement with the Capobiancos.

Oklahoma state law required notice be provided to the child’s tribe, the Cherokee Nation, but the notice provided by the adoption attorney was not complete and not properly executed. It included a misspelling of the father’s name and the wrong birth date. This delayed the tribe’s ability to certify that Veronica was eligible for tribal membership and become involved until months after Veronica was moved to South Carolina. Additional paperwork required under the Interstate Compact on the Placement of Children, giving authority to the Capobiancos to relocate Veronica to South Carolina, only identified Veronica as Hispanic even though it was known that she had Indian ancestry.

When the child was four months old, Veronica’s father was served with notice of the Capobiancos’ intent to adopt. He was served in a parking lot outside the army base without counsel present just days from his deployment to Iraq. The father signed the paperwork under the impression that he was relinquishing his parental rights to the birth mother, but recognized soon after that it was asking for him to relinquish his parental rights for placement with the South Carolina couple. The father asked for the paperwork to be returned to him and was denied by the server.

Immediately, he contacted the JAG attorney at the military base and began the process of challenging the proposed adoption. He was deployed to Iraq seven days after filing a stay of the adoption proceeding, where he served his country well and was awarded a Bronze Star.

The South Carolina district court denied the South Carolina couple’s petition to adopt and ordered transfer of custody to her father. The South Carolina couple appealed, but the ruling was upheld by a lower appellate court in South Carolina. Veronica’s father assumed custody of his daughter on December 31, 2011, in a highly publicized handing over of Veronica.

The Capobiancos then appealed to the South Carolina Supreme Court, which upheld the lower court’s decision. In the state Supreme Court decision, the court said that there was no evidence that Veronica was not presently in a safe and loving home with her birth father. The Capobiancos have now indicated that they will be applying for review by the U.S. Supreme Court.

Link to the South Carolina Supreme Court Decision Adoptive Couple v. Baby Girl, a minor under the age of fourteen years, Birth Father, and the Cherokee Nation

Fact Checking Media Coverage of the Baby Veronica Case
The extensive media coverage of the Baby Veronica Case has included many inaccuracies. Here, NICWA fact checks some of these recurring assertions.

Statement (Source)


Text of Supreme Court Opinion

“We were told she was not an Indian child, so we didn’t think it was going to make a difference.” –Melanie Capobianco (Fox News, January 11, 2012)
Mother knew of father’s Cherokee heritage and informed the adoption agencies and the Capobiancos.“Mother testified that she knew ‘from the beginning’ that Father was a registered member of the Cherokee Nation, and that she deemed this information ‘important’ throughout the adoption process…Mother reported Father's Indian heritage on the Nightlight Agency's adoption form and testified she made Father's Indian heritage known to Appellants and every agency involved in the adoption.” (pg. 4)
“At just two years old, this little girl is caught up in one of the strangest adoption cases that we’ve ever heard. Her story begins in 2009, when Veronica’s biological parents put her up for adoption. That’s when Matt and Melanie Capobianco entered the picture.” (Anderson Cooper 360, February 22, 2012)
Mother never informed father of her intent to place Veronica up for adoption, and placed Veronica without discussing it with him.“Mother never informed Father that she intended to place the baby up for adoption. Father insists that, had he known this, he would have never considered relinquishing his rights.” (pg. 3)
“Four months later, Brown (birth father) changed his mind and decided that he wanted custody despite the fact that he had never met the baby. His lawyers filed suit against the Capbiancos to gain custody of Veronica. (Huffington Post, August 23, 2012)

Anderson Cooper: The biological father did waive his rights, apparently, early on, and then two weeks later changed his mind.

Jeffrey Toobin: He did.
Father was not made aware of the Mother’s intent to adopt out Veronica until four months after her birth.

Father signed an “Acceptance of Service and Answer of Defendant” which was not a lawful “waiver” of his rights.

After signing, Father realized that the paper did not relinquish his rights to the mother but instead to potential adoptive parents and immediately attempted to retrieve it.

Father sought the advice of a JAG attorney. Five days later, he requested a stay of the adoption. Eight days later he filed official documentation to establish paternity, child custody, and support of Veronica.
“January 6, 2010, approximately four months after Baby Girl was born and days before Father was scheduled to deploy to Iraq. On that date outside of a mall near his base, a process server presented Father with legal papers entitled ‘Acceptance of Service and Answer of Defendant,’ which stated he was not contesting the adoption of Baby Girl and that he waived the thirty day waiting period and notice of the hearing. Father testified he believed he was relinquishing his rights to Mother and did not realize he consented to Baby Girl's adoption by another family until after he signed the papers. Upon realizing that Mother had relinquished her rights to Appellants, Father testified, ‘I then tried to grab the paper up. [The process server] told me that I could not grab that [sic] because . . . I would be going to jail if I was to do any harm to the paper.’”

“After consulting with his parents and a JAG lawyer at his base, Father contacted a civilian lawyer the next day, and on January 11, 2010, he requested a stay of the adoption proceedings under the Servicemember's Civil Relief Act (‘SCRA’). On January 14, 2010, Father filed a summons and complaint in an Oklahoma district court to establish paternity, child custody, and support of Baby Girl.” (pg. 6)

“It is undisputed that the only consent document Father ever signed was a one-page "Acceptance of Service" stating he was not contesting the adoption. Thus, Appellants did not follow the clear procedural directives of section 1913(a) [of ICWA] in obtaining Father's consent. Moreover, even if this "consent" was valid under the statute, then Father's subsequent legal campaign to obtain custody of Baby Girl has rendered any such consent withdrawn. Therefore, neither Father's signature on the "Acceptance of Service" document, nor his stated intentions to relinquish his rights, were effectual forms of voluntary consent under the ICWA.” (pg. 18)
In this case, now-2-year-old Veronica was adopted by Matt and Melanie Capobianco. (Associated Press, July 27, 2012)

The state of South Carolina finalized the adoption and terminated Brown's rights as a father for lack of action on his daughter's behalf. Brown waived his right to contest the adoption. At that time, Veronica, then an infant, legally became the daughter of the Capobiancos. (Huffington Post, August 23, 2012)
The adoption was never finalized.

This court battle is based upon the South Carolina District/Family court’s decision to deny the Capobiancos’ petition for adoption of Veronica because Father’s parental rights were not and should not be terminated.
“Appellants filed the adoption action in South Carolina on September 18, 2009…On November 25, 2011, the family court judge issued a Final Order, finding that: … (3) Father did not voluntarily consent to the termination of his parental rights or the adoption; and (4) Appellants failed to prove by clear and convincing evidence that Father's parental rights should be terminated or that granting custody of Baby Girl to Father would likely result in serious emotional or physical damage to Baby Girl. Therefore, the family court denied Appellants' petition for adoption and ordered the transfer of custody of Baby Girl to Father on December 28, 2011.” (pg. 8)


Media Coverage

January 4, 2013 NICWA responds to U.S. Supreme Court decision to hear Veronica case
December 24, 2012 NYT Covers Veronica case
November 13, 2012 NICWA fact checks Dr. Phil
October 20, 2012 NICWA responds to Dr. Phil
September 18, 2012 U.S. Supreme Court could hear "Save Veronica" case Fox23 News, Tulsa, Oklahoma
Summer 2012 Case highlights failure to follow ICWA dictates by Joe Kroll, executive director of the North American Council on Adoptable Children, Adoptalk.
August 23, 2012 Doing what's best for the tribe by Marcia Zug,
July 27, 2012 NICWA responds to South Carolina decision
July 20, 2012 Full compliance with Indian Child Welfare Act, not its dismantling, is needed Op-ed by Terry Cross, NICWA executive director, The Oklahoman.

I have written about this case on this blog, also objecting to the Dr. Phil show which was truly appalling and slanted and biased... Trace

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