After three years of filing and appealing, waiting and wondering, it all comes down to 60 precious minutes for Matt and Melanie Capobianco. When the couple slips past the iconic white pillars and into the U.S. Supreme Court this morning, their fate lies in the same room where segregation ended and where women won the right to choose. But Matt and Melanie aren’t interested in making history. They just want their daughter back.
This morning the Supreme Court considers a 3-year-old girl with black curly hair and at least a drop of Cherokee blood. For one hour, the highest court considers Veronica, Matt and Melanie's adoptive daughter, whose life, so far, could be charted in court hearings.
Veronica was born in 2009 to an Oklahoma woman whose former fiancé gave up his rights to their daughter in a text message. The woman began to search for a financially stable two-parent home. With the help of an adoption agency, she found Matt and Melanie.
The day Veronica was born, Matt cut the umbilical cord in an Oklahoma hospital. The couple drove the newborn 1,200 miles back to their home in Charleston, South Carolina. Four months later, they learned that Dusten Brown, Veronica’s biological father, had filed for paternity and custody.
Brown, a registered member of the Cherokee Nation, hung his case on the Indian Child Welfare Act, a federal law enacted in 1978 to prevent the breakup of Native American families. Two years later, that argument proved to be a winner.
Backed by a court order, Brown showed up in Charleston to take Veronica back to Oklahoma on December 31, 2011. Matt and Melanie tried to prepare Veronica for the exchange that evening, but the toddler instead welcomed visitors who came to say goodbye. She served friends and family imaginary tea in purple plastic cups.
The custody transfer that evening began in the lobby of a downtown Charleston hotel, but soon the scene attracted a crowd, and the two families withdrew to the offices of Brown’s attorney. Hours later, Veronica climbed into the cab of Brown’s blue pickup truck bound for Oklahoma. New Year’s revelers gawked, as news cameras filmed her driving away with the biological father she had just met. Matt and
Melanie have not seen her since.
Reporters from across the country descended upon both families. Dusten Brown declined most interviews through his attorneys. Matt and Melanie agreed to speak, reluctantly, and even appeared on the talk show Dr. Phil in hopes of strengthening their argument by appealing to human emotion.
The Supreme Court, however, deals in legal abstraction, not emotion. It debates overarching principles, rather than personal specifics. To the court, this case isn’t about two families and how much they love a little girl but about deciding if Dusten Brown’s rights, protected by the Indian Child Welfare Act, outweigh Matt and Melanie’s rights as adoptive parents.
For two years, this argument played out privately in Charleston family court, as Veronica learned to crawl, to walk, to call Melanie and Matt “Mommy” and “Daddy.” Brown’s attorney argued that her client never consented to the adoption and that he signed over custody to Veronica’s birth mother alone. A Charleston family court judge agreed, ordering that Matt and Melanie turn over Veronica on New Year’s Eve.
Since that day, Matt and Melanie have lived in limbo, pouring time, energy and money into a legal system that, so far, has failed them. But nothing offends them more than the people who ask why they just
don’t adopt again.
“There is no plan B,” Melanie said. “I don't think there could be. We're fighting for our daughter with everything we have.”
When Veronica went to Oklahoma, the couple called the Browns’ home every week. They sent letters and gifts until, through lawyers, the Browns told Matt and Melanie not to contact them anymore. “The only time we see pictures of her is when they put them in the paper,” Melanie said. “That's the only time we hear how she's doing.”
Everything at their home still remains as Veronica left it. Her pink toy sink and refrigerator line the living room wall, and an Elmo doll peeks out from the corner of the room. But the silence tortures Matt and Melanie. When Veronica turned 3-years-old in September, the couple released purple balloons carrying the permanent-marker messages they couldn’t tell her themselves.
Matt and Melanie appealed to the South Carolina Supreme Court and, armed with what they viewed as an indisputable case, they expected to win. Instead, the state supreme court issued a 3-2 decision that upheld
the family court ruling “with a heavy heart” and impassioned dissenting arguments. Matt was at work when the decision came down. He learned about the ruling in a text message from a friend who saw it on the local news.
When Melanie received the call in January that the U.S. Supreme Court would hear their case, she jumped up and down in their living room and called Matt. After a year of alternating between grief and hope, “that was the best day we’ve had since all that happened,” Melanie remembered.
Today, they have one more shot. Matt and Melanie overcame the odds just by landing in Washington. Each year the U.S. Supreme Court gets some 7,500 petitions from hopeful people looking for justice. Of those, the highest court takes up fewer than 100 cases.
Veronica’s case stood a slim one percent chance of reaching the nine justices, according to one of Matt and Melanie’s attorneys, Mark Fiddler. Both he and an attorney for the Cherokee Nation unsuccessfully had petitioned the Supreme Court on Indian Child Welfare Act cases in the past. The U.S. Supreme Court only ever has heard one such case, in 1989.
Fiddler joined with Lisa Blatt, a Washington attorney who has argued a record 30 cases before the U.S. Supreme Court and won 29 of them. Fiddler and Blatt took on Matt and Melanie’s case pro bono and made two arguments for why the highest court should hear them out: State courts need a standard on whether the Indian Child Welfare Act applies when a non-Native American parent — such as Veronica’s mother — voluntarily places a child up for adoption, and state courts need a standard on the legal definition of a “father.”
“Unless this Court grants review, thousands of adoption proceedings involving Indian children will lack equivalence and predictability — undermining the very need for uniformity and clarity that motivated
Congress to enact ICWA three decades ago,” the brief said. Their argument hinged on Veronica but held those nine justices accountable for the fate of thousands of nameless, faceless children.
Matt and Melanie know little about what to expect today. Perhaps they will see demonstrators in traditional Native American clothing burning sage outside the courthouse. Most likely, strangers will line up for hours outside the courtroom for the chance to be spectators during this deeply personal hour.
Win or lose, their case stops here. Their three-year fight ends today after an hour of argument. Matt and Melanie expect a final decision this summer, but they only talk about what happens if they win.
If Veronica comes home to Charleston, Matt and Melanie plan to take time off from work, to reintroduce her to friends and to remember how to live as a family.
“We’ll go to the beach and take her to brunch,” Matt said recently. Melanie nodded. “Maybe just the three of us.”