New Twist in Indian Child Welfare Case After SCOTUS

CHARLESTON, S.C. (CN) - A federal judge Wednesday declined to intervene in a high-profile adoption case involving a Native American child, and a family court judge imposed a gag order and said the child would be transferred away from custody of her biological father.

In the latest round in the saga, Angel Smith, an attorney for the Cherokee Nation, filed a complaint saying she was not asking the court to determine whether 3-year-old "Baby Veronica" belongs with her father or her adopted family.

"Rather, V.B. simply asks this Court to decide the question of whether, prior to any final decision by the South Carolina state courts, she has a constitutionally protected right to a meaningful hearing in the state courts to determine her best interests today," Smith wrote in the complaint.

The defendant, Family Court Judge Daniel Martin Jr. denied the request for an emergency injunction Wednesday, after the federal court declined to intervene. Martin also imposed a gag order after the hearing concluded, saying that the matter has been settled and a plan is in place to transfer the child from the custody of her father.

The case stems from the decision by Christinna Maldonado, Baby Veronica's mother, to give her baby up for adoption to a Charleston couple, Matt and Melanie Capobianco.

Maldonado and the baby's father had broken up, and the adoption appeared to be on track until the baby's father, who claims Cherokee heritage, asserted parental rights under the Indian Child Welfare Act.

The act specifies that Native American children be adopted by other members of the tribe, if possible. As a member of the Cherokee Nation, Dusten Brown claimed the Indian Child Welfare Act gave him preference in the custody dispute.

State courts agreed, awarding custody of Baby Veronica to Brown in December 2011, concluding that he was a "parent" under the Indian Child Welfare Act, or ICWA, because his daughter was 1.2 percent (3/256) Cherokee.

The U.S. Supreme Court overturned and remanded to South Carolina in June, and the Supreme Court of South Carolina awarded custody to the Capobiancos.

Maldonado and other women who have given their children up for adoption then filed a lawsuit to have a portion of the act declared unconstitutional, claiming it violates their right to choose adoptive parents who will provide their children with a loving and stable environment.

In the meantime, the attorney for the Cherokee Nation is pressing the case.

"Although not mandated by the opinion of the United States Supreme Court, by a vote of three to two on July 17, 2013, a sharply divided Supreme Court of South Carolina issued an order on remand that summarily denied the opportunity for a hearing on the best interest of V.B. and dispensed with any further proceedings," the attorney wrote in the latest addition to the litigation.

"In a subsequent order issued by the court on rehearing on July 24, 2013, the divided court reiterated that the family court is not to hold any such hearing on best interest, limiting the family court to a decision about a 'transition plan,'" Smith wrote. "Employing an irrebuttable presumption, that order found that changing custody of V.B. back to the Capobiancos was in her 'best interests.' The court indulged in that finding, notwithstanding its previous finding in an appeal from the family court that, like the family court, 'we cannot say that [V.B.'s] best interests are not served by the grant of custody to Father, as Appellants have not presented evidence that Baby Girl would not be safe, loved and cared for if raised by Father and his family.'"

At this point, Baby Veronica has been living with her biological father and his family for 19 months, after spending the first 27 months of her life with the Capobiancos.

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