James Island couple, Oklahoma man not giving up fight for chance to raise Baby Veronica
The words from the U.S. Supreme Court trickled onto Melanie Capobianco’s laptop screen.
She didn’t know what they meant at first. Then she saw them in plain English: “Victory for the adoptive parents.”
Her trembling finger tapped a cellphone as she called her husband, Matt, who was working at Boeing. “I think we won.”
She twirled across the living room of her James Island home, next to a chair embroidered with “Veronica.” Her last dance was with the little girl she called her daughter.
But for a year and a half, they’ve been apart. Mr. Potato Head, a toy kitchen set and a pile of stickers lined the floorboards, but Veronica wasn’t there to play with them.
Veronica’s father had used a federal law to block the Capobiancos’ attempt to adopt her because of their shared American Indian blood. What the couple heard Tuesday was their best news yet during the 18 months of legal wrangling to get her back. The court ruled that parts of the law didn’t apply because the father never had custody. But her return wouldn’t be a sure thing: That’s up to state judges, and none of their options seems more likely than the others.
“It’s been a lot of ups and downs,” Melanie Capobianco told The Post and Courier. “But this was the biggest up. It’s nice to have hope again.”
A thousand miles away, Dusten Brown operated heavy rigging outside Tulsa, Okla. His wife cared for Veronica at home.
He knew the court could rule any second, but he wasn’t worried. He thought the odds were in his favor. The Indian Child Welfare Act — the heavyweight in this fight, the federal law that overruled state laws — was in his corner. Other members of the Cherokee Nation and tribes elsewhere stood with him too.
His phone rang. He heard his attorney’s voice: He had lost the legal case. He hadn’t lost Veronica, but the thought filled his mind — the thought of losing the girl who chases two pet geese named Phineas and Ferb through the yard, the child whom he calls boss, the little person who calls him, “Daddy.”
He lifted his head. No way, he thought. That can’t happen.
“I’m going to keep fighting,” he told the newspaper during an interview. “This is her home and her life. This is where she belongs.”
Legal historians will remember the case of 3-year-old Veronica. To some, it tempers a fear for prospective adoptive parents of Indian children that biological fathers will thwart their plans. To others, it signifies stripping fathers of a chance to step up and care for their own flesh and blood.
But Veronica’s fate isn’t set in stone. South Carolina judges will write the next chapter in her life, the one about who will raise her.
Justice Samuel Alito ordered Friday that they address the case within seven days. It was a rare move — done only one other time in the past decade — that nodded at the Capobiancos’ desire to quickly reunite with Veronica.
It’s unknown how long the process will take. Brown’s parental rights never were terminated, and his attorneys still could invoke other portions of ICWA that were not challenged in Washington.
What’s certain is that two couples love a girl they consider their own. Neither will give her up now.
‘Call to action’
Attorney Shannon Jones opened her eyes Tuesday morning in a southern California hotel room. As Brown’s lawyer from the start in Charleston County Family Court, she had been invited to talk that day to 400 attorneys, social workers and American Indians who handle ICWA cases.
‘Call to action’
But Jones knew the Veronica ruling could come that same day. It was 7 a.m. as she stared at a blog that covers the Supreme Court.
What would she tell the audience members if the court struck down the federal law? Such a ruling could leave them jobless. It was an unlikely scenario, but it floated in her mind.
The first bit of information flickered on Jones’ computer screen. She saw that Alito, a conservative justice, had written for the majority. The news wouldn’t be good for her.
She feverishly read the opinion, knowing she would be speaking about it four hours later. She told the conference attendees that the ruling was a loss for her client and a setback for ICWA, but the law still stood.
Clarence Thomas was the only justice who deemed the act unconstitutional. He thought it was “absurd” that Congress could tell states to change their custody laws just because a child has Indian blood.
So this wasn’t the end, Jones told the packed conference room. If anything, the court had raised more questions — showing an even greater need for specialists who defend ICWA, which was enacted in 1978 to stop the forceful removal of Indian children from their homes.
The conferences attendees stood and clapped. Some cried. Some sang prayers.
“The mood was somber, but it was a call to action,” Jones said. “They’re more determined than ever to fight for their rights.”
Alito based his opinion on a literal reading of the law. He saw a provision that said it guarded “continued custody” from being interrupted. Brown never had Veronica, so the law’s provisions preventing Brown’s rights from being terminated didn’t apply.
But his ruling didn’t force a change in custody. The Supreme Court doesn’t have that authority. But he pointed out a state law that a child’s unwed father has no parental rights.
The decision was close, 5-4, and Justice Stephen Breyer seemed to be the wild card — the swing vote that tipped the court against Jones’ client.
Breyer, known for his more liberal leanings, agreed that Brown wasn’t protected by ICWA, but he feared that too many dads would lose their parental rights because of the ruling. The justice asked: What if a father who, unlike Brown, had paid child support and visited occasionally? He, too, could be stripped of those rights because he never had custody.
Over the next few days, Jones and other attorneys on her side would scrutinize the ruling.
They echoed Justice Sonia Sotomayor’s dissent. She didn’t rule out other Cherokees, including Brown’s relatives, from filing to adopt Veronica. ICWA gives them preference over others, like the Capobiancos.
Citing the possibility, Brown’s attorneys asked Alito to give them more time to ponder their options before he remanded the case.
But he sent it back to South Carolina anyway — another small victory for the Capobiancos.
The Capobiancos felt vindicated.
They had lost in Charleston County Family Court, again in the S.C. Supreme Court, and it felt like the odds were against them in Washington, too.
“Some people thought we should just go get another child,” Melanie Capobianco said. “It’s not like she’s just any child. We love her.”
They wish someone else had pioneered through the ICWA issue before them. But they’re pleased with the collateral effect that the ruling could blaze a path to adoptions less fraught with ICWA minefields when they include fathers without custody.
“But Veronica is the reason we’re in this,” Melanie Capobianco said.
Their worst fear was making it harder for other families to adopt.
Instead, the ruling had people like Johnston Moore pumping his fist and shouting.
Fifteen years ago, Moore successfully fought back a biological father’s attempt to take his twin sons through ICWA. The boys had some Indian blood but no link to a tribe. Nobody had expressed interest in them until Moore tried to adopt them.
Now a child welfare advocate in California, he helped form the Mount Pleasant-based Coalition for the Protection of Indian Children & Families. It rallies support around people like him and the Capobiancos.
In Los Angeles recently, a family tried to adopt an 18-month-old with little Indian blood. But relatives from another state stepped in.
“Time and time again, the tribe is in charge and can do whatever the tribe wants,” he said. “I hope this makes the judges put the best interests of the child first.”
After the ruling, Christinna Maldanado, the biological mother, didn’t feel as helpless as she had.
She had given up her parental rights to let the Capobiancos adopt Veronica, so when Brown stopped the proceeding, she had no say.
She filed briefs for the Capobiancos in Washington. But she wasn’t a party to the case.
“She felt she had let Veronica down,” Lori Alivno McGill, her Washington attorney, said. “All she ever wanted to do was give her a better life.”
At least initially, the only issue for the state’s top judges will be the finalization of the couple’s adoption. They can go about that a number of ways.
They could ask a Family Court judge to rewind two years and hear the case again as if nothing in the past 18 months mattered — except for the high court’s decision.
What seems more likely to John Nichols, who fought for Brown in the S.C. Supreme Court, is that the justices will send the case back to Family Court. Judges would be ordered to abide by Alito’s decision, reconsider the facts and decide on the Capobiancos’ adoption petition.
However it goes, it won’t be easy for anyone.
“We are in uncharted waters,” Nichols said. “We have been from the very beginning. The map is still not complete.”
The proceedings could occur out of the public eye as they did in 2011.
The state bars people involved in a custody case from leaking certain information, including court documents. That’s why Mark Fiddler, a Minnesota attorney who argued for the Capobiancos in the S.C. Supreme Court, said he couldn’t talk about what he had in store this time around.
But the privacy guarded by the law is all but gone for Baby Veronica. Readers and viewers of major newspapers and television networks have seen her face and heard her story.
Attorneys for Brown think a family judge should unseal past court documents and open the proceedings.
Judge Deborah Malphrus, who heard the Veronica case during her first week on the bench, wrote a detailed ruling in the case that irons out some disputed facts. If people knew more about how Brown had tried to marry Veronica’s biological mother and start a family with her, they’d understand that he hadn’t entirely given up his desire to be in the girl’s life, Brown’s attorneys said.
Some facts that the Capobiancos had going for them in 2011 could be Brown’s advantage now.
Brown didn’t pay child support before Veronica was born, so the Capobiancos’ attorneys said then that he wasn’t interested in the child. But Brown has cared for her for 18 months, so can the attorneys say that now?
In 2011, Veronica called the Capobiancos her family. Now, it’s the Browns.
Brown’s role in Veronica’s life now is something University of South Carolina law professor Marcia Zug thinks cannot be ignored. In state custody proceedings, preference often is given to the family with custody of the child. Would removing her cause harm? Would letting her stay cause harm?
In 2011, an expert argued for the Capobiancos that plucking Veronica from the home she knew since birth might stunt her development, cause psychological problems.
But they didn’t win with that argument because of ICWA, the “trump card,” as Justice Alito called it.
Now that the Capobiancos want her back, they’re faced with arguing the opposite of what they did in the first place.
“At this age, she probably doesn’t remember who they are,” Zug said. “It’s not reuniting her with a family she’s missing. It’s taking her away from the only family she knows.”
When a story about Veronica’s case once flashed on the television, Veronica was quick to point out pictures of herself with her dad. When she saw photos of the Capobiancos, according to Brown, she said, “Who are they?
‘What she needs’
The Capobiancos realize that Veronica might call someone else Mommy and Daddy. But they know Veronica still remembers her first home.
‘What she needs’
In her room, the bed she once slept on is still set up as a crib. Matt Capobianco kneaded the arm of a padded chair tucked in the corner.
“When she couldn’t sleep, I would read to her in this chair,” he said. “Now when we come in here, it’s mostly just to run the vacuum.”
If Veronica returns, the couple thinks she’ll remember all of this — the Himalayan cat ZuZu, her toy grocery cart, the Santa, snowflake and candy cane stickers she adhered to a leg of the dining room table during the Christmas just before she left.
Melanie Capobianco shivers when she thinks of that New Year’s Eve night, when Brown cradled Veronica in his arms and drove her to Oklahoma.
The next day, she talked with Veronica on the phone. But it would be the last time. Brown’s attorney shut off the contact after the Capobiancos went on CNN to talk about their plight.
They haven’t spoken with Veronica since.
The couple wants a more gradual transition if they’re awarded custody this time. They’re ready to take time off work and stay in Oklahoma.
“We’ll do whatever it takes,” Melanie Capobianco said. “We just want to follow her lead and what she needs.”
Brown doesn’t want anything to change.
He, his wife, Robin, and Veronica vacationed in Branson, Mo., this weekend. But Brown thinks Oklahoma is where his daughter belongs.
It’s where she dons a traditional dress, dances, sings and bangs on a drum. She’s learning the language used in Brown’s Cherokee Nation.
It’s where she rides a Jet Ski with Brown and learns to doggy-paddle in a pool.
It’s where the pets she helped name — Cookie and Chip the guinea pigs, Cowboy and Boogers the dogs — mosey through the yard.
For now, life is grand.
Reach Andrew Knapp at 937-5414 or twitter.com/offlede.