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A South Carolina couple is fighting to get their adopted daughter back in their custody after she was placed with her biological father, who lives 1,100 miles away in Oklahoma.

Matt and Melanie Capobianco said goodbye to their 2-year-old daughter Veronica last Saturday. “We’re kind of reeling from it, and reliving having to hand her over in our minds constantly is painful,” the couple said.

Authorities took Veronica Capobianco from Matt and Melanie of Charleston, SC, and turned her over to biological dad 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 said.

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 SaveVeronica.com, 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 Dusten 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 Dusten Brown had one more legal tactic. Because he is of Indian heritage, a 1978 federal law that protects American Indian families from being separated trumped South Carolina law.

The “little known” Indian Child Welfare Act, passed in 1978, is a federal law that helps ensure Indian children stay with their birth parents or in other Indian homes whenever possible. That is the basis of the custody petition filed on behalf of Veronica’s birth father, who is represented by the Cherokee Nation.

A judge ordered Veronica to be turned over to Dusten Brown.

“This isn’t in her best interest. We’re her family. This is her home,” Matt Capobianco told reporters. “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 said. “We understand the purpose of the Indian Child Welfare Act, but we feel that the ICWA is being abused, you know, we don’t think this is what it was meant for.”

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

Chrissi Ross Nimmo, the Assistant Attorney General who represented the Cherokee Nation in this case, issued this statement:

“As a matter of law and policy, the Cherokee Nation’s attorney general’s office generally does not comment on juvenile cases due to their sensitive nature and confidential information. In an effort to quell the undue outside attention to this sensitive affair, the Cherokee Nation attorney general’s office filed a motion for a gag order in this case Wednesday afternoon, along with a motion to release the judge’s final order to the public. I ask that all parties involved in the matter respect the confidential nature of these juvenile court proceedings. The Cherokee Nation has 115 Indian Child Welfare employees and nine assistant attorneys general who work tirelessly to fight for the rights of Cherokee children and their parents, not only within our 14-county jurisdiction, but in tribal, state and federal courts across the nation. The Indian Child Welfare Act was written to help keep Native American children with their families whenever possible – a concept embraced wholeheartedly by the Cherokee Nation.”

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