New battle lines emerged Monday in the Veronica custody dispute, setting up a possible clash between South Carolina and Cherokee Nation courts over who has the power to determine the little girl’s future.
The Cherokee Nation and Veronica’s biological father, Dusten Brown, filed petitions asking the S.C. Supreme Court to reconsider its July 17 ruling that calls for her adoptive parents on James Island to regain custody of the 3-year-old.
Meanwhile, tribal officials revealed that a Cherokee Nation court has issued a temporary guardianship order, granting joint legal custody of Veronica to Brown’s wife and parents while he is away on mandatory National Guard training.
Brown, who is part Cherokee, was deployed Monday for an undetermined period of time, his attorney, Shannon Jones of Charleston, said.
The tribal order, issued five hours before South Carolina’s high court ruled last week, adds another legal wrinkle to the case and sets up a possible battle between the state and the tribe over who has authority to determine Veronica’s custody.
Further complicating things, the Native American Rights Fund, National Congress of American Indians and National Indian Child Welfare Association announced that they are preparing to sue over the S.C. Supreme Court’s ruling last week to ensure Veronica’s rights will be protected.
In that 3-2 ruling, the high court ordered Charleston County Family Court to finalize the adoption of Veronica by her adoptive parents, Matt and Melanie Capobianco of James Island, and to terminate Brown’s parental rights.
The ruling also said there was no need for a Family Court “hearing on the child’s best interest,” which would be an opportunity for Brown and his family to argue their case in court.
Monday was the deadline for parties in the case to appeal the high court’s ruling.
Copies of the petitions were not available, but attorneys involved in the case confirmed the documents had been filed.
Jones and tribal officials said the petitions, among other things, question why the high court didn’t allow a hearing on the “child’s best interest” in Family Court. The tribe also argues that the S.C. Supreme Court has a duty to consider the temporary guardianship order issued by the tribal court before making any final determination on Veronica’s custody.
“It is very troubling that the South Carolina Supreme Court would move to terminate the parental rights of a man who has proven to be nothing but a fit and loving father, without even holding a hearing to determine what is in his own child’s best interests,” said Cherokee Nation Principal Chief Bill John Baker. “What is best for Veronica has not even been considered by the court.”
The Capobiancos and their spokeswoman, Jessica Munday, had no comment to offer on Monday’s developments.
But Lori McGill, lawyer for Veronica’s birth mother, Christy Maldonado, said her client was “deeply saddened to see continued legal wrangling” in the case. Maldonado wants the Capobiancos to have custody of Veronica.
“If only Veronica’s best interests had been paramount from the beginning of this case, she would still be thriving in Matt and Melanie’s home,” Maldonado said in a written statement. “Enough is enough. It is time for everyone in Oklahoma to sit down and act like adults and figure out the best way to transition Veronica back to her home on James Island.”
Maldonado gave Veronica up for adoption to the Capobiancos shortly after she was born in September 2009. Her father, from Oklahoma, filed for custody under the Indian Child Welfare Act after he got the adoption papers in January 2010. He had originally expressed no interest in his daughter, but has since made a home for her.
At the heart of the issue was whether Brown’s rights as a father are protected under the Indian Child Welfare Act, a federal law aimed at keeping American Indian children in their native communities.
The S.C. Supreme Court originally held that the federal law gave immediate custody of Veronica to Brown in December of 2011. Last month, the U.S. Supreme Court ruled 5-4 that the federal law does not apply when “the parent abandoned the Indian child before birth and never had custody of the child.”
They sent the case back to the S.C. Supreme Court, unequivocally finding that the ICWA does not mandate custody be awarded to the birth father.
Reach Glenn Smith at 937-5556 or Twitter.com/glennsmith5.