The Post and Courier
Custody battle for baby Veronica continues as Supreme Court sides with James Island family
Leroy Burnell/posandcourier.comA sign in the yard of Matt and Melanie Capobianco's home on James Island. The U.S. Supreme Court ruled this morning in favor of Matt and Melanie Capobianco, overruling a state court’s opinion that removed 3-year-old baby Veronica from the James Island home where she had spent more than half her life.
But the battle is far from over.
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Matt and his wife Melanie Capobianco tried to hold back tears before they had to turn over Veronica in Charleston on Saturday, Dec. 31, 2011. The Capobianco's had to deliver Veronica to her biological father, Dusten Brown, because of a 1978 law that applies to American Indian children. (Grace Beahm/postandcourier.com)
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Veronica and her father, Dusten Brown, in Oklahoma in early April. (PROVIDED)
The Capobiancos tried to adopt Veronica after she was born in September 2009. Dusten Brown, a member of the Cherokee Nation, successfully halted the adoption through the Indian Child Welfare Act, or ICWA, as South Carolina courts ruled that the federal law trumped state statutes that disqualified Brown as a parent.
The justices voted 5-4 to reverse the lower court’s decision and send the case back for reconsideration in South Carolina in light of their ruling.
It was not immediately known whether Veronica would return to South Carolina because more legal proceedings are expected. The state courts must consider what’s in Veronica’s best interests now that she has been with a different family for nearly half her life, attorneys said.
Justice Samuel Alito wrote the majority opinion that sided with the adoptive couple. Justice Antonin Scalia — who sided with a tribe the only other time an ICWA case was heard, in 1989 — wrote the dissenting opinion.
Alito wrote that none of the ICWA provisions in question prevented the termination of Brown’s rights as a biological father because he hadn’t shown an interest in the child before her birth.
But for the Capobiancos, getting Veronica back won’t be easy.
Mark Demaray, former president of the American Academy of Adoption Attorneys, said the lower court, which will hear the case again and take the Supreme Court ruling into consideration, must recognize that Veronica has been absorbed into a new family during the past 18 months. She was with the Capobiancos for nearly 28 months.
Brown and the Capobiancos will have to work together to determine what’s in her best interests, Demaray said.
“They should’ve just terminated (Brown’s) rights in the first place,” he said. “Now, that court is going to have some tough decisions to make. ... It’s still a rough road for this child and these families.”
Shannon Jones, Brown’s attorney in the Lowcountry, said the case would be sent back to the state Supreme Court, which likely will punt it to the Charleston family court that ruled in the first place. She said the state courts must take up a remanded case within 25 days.
“I wish this was the end,” Jones said. “But it’s just another beginning.
“A win for the father would’ve been a win for this child because it would’ve been over.”
Jones wanted to remind people that Veronica never was adopted, she said. Her client has fought for his daughter ever since adoption papers were filed, she explained.
After the ruling was announced, Jones said she talked with Brown by telephone. He sounded nervous, heartbroken and upset, she said.
If the Capobiancos decide to continue their legal battle for custody, Jones said, Veronica’s future would continue to hang in the balance. She pleaded with the Capobiancos to reconsider.
“I understand how much they want his child,” Jones said. “There are so many children out there that need a loving home. But Veronica is not that child. She already has a loving home.”
The decision is a blow for tribes who have said that a ruling against Brown would help erode ICWA’s intent: to preserve American Indian societies. But it was not a complete loss, tribal officials and advocates said, because the ruling leaves ICWA intact.
But Demaray, the former adoption academy official and an attorney in Washington state, said in an interview after the ruling that adoption attorneys have long wrestled with questions about whether ICWA applied to voluntary adoptions in which the father is American Indian but the mother is not.
He said the Veronica ruling helps clear up confusion that ICWA cannot be invoked when a father hasn’t been involved with a child.
“You don’t know what to do when there’s no guy standing there to claim the child, and no one else was standing up to adopt her,” he said. “Making the determination (about whether ICWA applies) has been a challenge. ... This will be extremely helpful in future adoption cases.”
Jessica Munday, a spokeswoman for the Capobiancos, said the family’s attorneys in South Carolina and Washington were discussing the opinion’s meaning and their future strategy.
She said the family was mindful of the biological relatives’ interests in Veronica’s future and the role they might play in it.
“I am so happy,” Munday said. “This has been such a long ordeal, and it’s not even over yet. I just want Veronica to be with everyone who cares about her. ... I’m glad the court decided to stop this tragedy from happening to other children.”
Reporters gathered outside the couple’s home after Alito read the opinion this morning. A sign in the front yard said, “Bring Veronica home.”
Veronica’s birth mother, who chose the Capobiancos to raise Veronica, called this morning to congratulate the couple, Munday said. The Capobiancos have not yet spoken with Brown, she added
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“Today’s opinion makes clear that Veronica’s adoption should have been finalized long ago, and gives us all the opportunity to continue fighting for Veronica’s best interests,” the biological mother, Christinna Maldonado, said in a statement. “I’m also hopeful it will spare many other children and families the heartbreak that Veronica, the Capobiancos, and I have had to endure.”
Joining Alito in the majority opinion were Chief Justice John Roberts and justices Anthony Kennedy, Clarence Thomas and Stephen Breyer.
Justices Sonia Sotomayor, Ruth Bader Ginsburg and Elena Kagan dissented with Scalia.
The state courts ruled that ICWA barred the termination of Brown’s rights as a father, even though he didn’t provide any support to Veronica’s mother and was never in the girl’s life.
But in reversing that opinion, Alito wrote that the law prevents the disruption of a parent’s “continued custody,” so the statute “does not apply where the Indian parent never had custody” in the first place.
ICWA wasn’t intended for cases in which a child’s adoption was lawfully initiated, he wrote. It was meant to stop the breakup of an American Indian family. But in Veronica’s case, Alito wrote, no such family existed.
Brown “should not have been able to invoke (ICWA) in this case because he had never had legal of physical custody of Baby Girl,” the justice wrote.
The Capobiancos’ supporters also praised Alito and the rest of the majority.
William B. Allen, emeritus professor of political science philosophy at Michigan State University and former chairman of U.S. Commission on Civil Rights under President Ronald Reagan, said he was delighted by the Supreme Court’s decision.
Allen, who has long been critical of ICWA, said the decision is a sign that the high court is giving parental rights precedence over the act.
“I consider this to be an important turning point in our court’s consideration of these cases,” he said. “Obviously, this is the beginning of a new era.”
But the ruling does not dismantle the federal law.
Terry Cross, executive director of the National Indian Child Welfare Association, said that the opinion was based on a technicality and that it confirms Congress’ role in protecting American Indian families.
“Although we are deeply disappointed that this case is not over, Dusten will continue to fight for his daughter, and we believe that he will prevail,” Cross said. “Veronica will stay with her family.”
In a statement, Brown said that he was disappointed and that he wouldn’t want anyone else to have to fight so much “for the right to raise their own child.”
He said Veronica is happy where she is in Oklahoma.
“She loves and is loved by her sister, grandparents, aunts, uncles and cousins. She is where she belongs,” his statement said. “I hope and pray her rights are protected and she’s allowed to stay with her family.”
Here’s the background of the case:
On April 16, the Supreme Court heard oral arguments complementing hundreds of pages legal briefs from attorneys and organizations that opined on the ruling’s consequences.
The case hinged on ICWA, the federal law aimed at placing American Indian children in foster or adoptive families who share their heritage. It arose in 1978 after advocates pointed out that a striking number of American Indian children were being placed outside their cultures, further diluting native societies.
Veronica was born to Brown, an Army reservist and member of the Cherokee Nation in Oklahoma, and Maldonado, a Hispanic mother of two.
The two had been engaged, but they broke off their relationship months before Veronica was born.
Before the birth, Maldonado gave Brown a choice between giving up his paternal rights or paying child support. Brown declined to give Maldonado money, but he later told attorneys that he didn’t mean to allow Veronica to be put up for adoption.
Meanwhile, the Capobiancos were stymied in their own efforts to have a child. After in vitro fertilization failed, they turned to adoption and met Maldonado through an agency.
They were with Maldonado when Veronica was born. Maldonado signed over custody to the Capobiancos, and the couple flew the infant to South Carolina, where adoption proceedings commenced.
Brown didn’t know about the pending adoption until four months later.
The delay in notification was blamed on a clerical error: Brown’s named was misspelled when Veronica’s mother first filed the papers. But attorneys for Brown alleged that the mistake was purposeful.
After he was served the documents, Brown promptly challenged the proceeding, then was deployed for a tour of duty in the Middle East.
But Brown’s claim of the child at the “eleventh hour,” the Capobiancos’ attorneys have argued, was too late. He should have expressed interest in his daughter sooner and provided care for the girl and her mother, they wrote in legal arguments.
Brown’s attorneys later argued that his biological link to Veronica and her heritage meant that ICWA allows him to claim her and halt the adoption.
But the American Indian makeup of Veronica’s blood was said to be only 3/256th, and she also shares Hispanic heritage with her mother, attorneys for the Capobiancos have said. They said that ICWA shouldn’t give rights to a father who has otherwise relinquished them under state laws.
A family court in South Carolina ruled in Brown’s favor, and the S.C. Supreme Court later agreed with the lower judges. Veronica was sent in late 2011 to live with Brown in Oklahoma, where she has been ever since.
Christina Elmore and Glenn Smith contributed to this report. Reach Andrew Knapp at 937-5414 or twitter.com/offlede.
