While the state’s top court placed another stamp of approval on 3-year-old Veronica’s adoption, a campaign to thwart the move gained steam Wednesday.
Brushing off challenges, the S.C. Supreme Court asked that attorneys in the custody battle honor its request for her adoption by a James Island couple to be finalized.
But attorneys and advocates for Dusten Brown, the toddler’s father who has been caring for Veronica in Oklahoma, said they’re not giving up. The court’s order amounted to a civil rights violation, some said, and enforcing it in Oklahoma could be troublesome.
The justices’ 3-2 decision denied Brown’s requests for a hearing to determine whether a custody switch would be in the girl’s best interests. The court issued a similar order last week, but Brown’s attorneys asked it to reconsider.
The final order plowed a path for Charleston County Family Court to approve a plan detailing how Veronica would return to Matt and Melanie Capobianco and to dispose of any motions that would further delay the adoption.
But attorneys for Brown said it also opened a door for more appeals, possibly to the U.S. Supreme Court, on questions of jurisdiction and due process.
“The (S.C.) Supreme Court has ruled that Veronica’s interests don’t matter,” Brown said on today’s Commentary page. “As a father who wants to protect his daughter, I cannot accept that.”
The Capobiancos were not prepared to comment Wednesday, their spokeswoman, Jessica Munday, said.
Lori Alvino McGill, the Washington attorney for Veronica’s birth mother, praised the court order for putting an end to a legal “circus.”
Because the court ruled not to allow the hearing, the National Congress of American Indians vowed to sue for alleged due process violations. It’s standard procedure in any custody dispute, it said in a statement, and the court shouldn’t make a ruling based on facts that are two years old.
“Veronica now faces the prospect of being removed from her Cherokee family, without a formal consideration of her needs, her culture and her well-being,” Jacqueline Pata, the organization’s executive director, said. “This ... represents a grave threat to all children in adoption proceedings.”
Brown’s attorneys and the Cherokee Nation had mounted an effort to transfer the case to Oklahoma state or tribal courts because that’s where Veronica lives. They said the Indian Child Welfare Act still applied because the toddler has Cherokee blood.
The federal law is meant to keep Indian children with their native people. A Cherokee Nation member, Brown invoked it in 2011 to halt the Capobiancos’ adoption, but the U.S. Supreme Court said last month that it didn’t apply to the father because Veronica had never lived with him. Brown countered that he wanted to marry the girl’s mother, Christy Maldonado, who rejected him, and that he never wanted to give up his rights as a parent.
Since the ruling in Washington, Brown, his wife and parents filed petitions in Oklahoma to adopt Veronica, arguing that the ICWA gave them preference. But the South Carolina court said those filings at the “midnight hour” were too late. The relatives hadn’t expressed such interest when the Capobiancos were trying to adopt Veronica in 2009, the court said.
Maldonado has said she never wanted anyone but the Capobiancos to care for her daughter.
“Christy is looking forward to supporting the Capobiancos in the coming days as they prepare to welcome Veronica back home,” her attorney, Alvino McGill, said. “We are gratified to see that the (court) has shut down this circus.”
But Jason Aamodt, a law professor at Oklahoma’s University of Tulsa, said the ICWA should still apply to the case because of Veronica’s heritage. Like state laws, the ICWA contains provisions stating that a custody determination should be a child’s best interest.
“What’s in the best interest of the child has always been the only thing that resolves a custody case,” Aamodt said. “Will this (ruling) break up that policy?”
Brown’s attorneys plan to file for emergency relief from the U.S. Supreme Court, arguing that South Carolina’s court wrongly applied its ruling, which could prevent a prompt custody switch. They also want to ask the high court, which doesn’t reconvene until Oct. 7, to hear the case again.
Shannon Jones, Brown’s attorney in Charleston, said the Family Court judge’s hands are likely tied by the state high court’s order that the adoption be finalized.
A better chance for Brown to foil the adoption could be to challenge South Carolina’s jurisdiction. Jones said such challenges can be raised at any point during a legal case.
“It’s not the first time an injustice has occurred,” Jones said. “The courts still have the opportunity to do the right thing ... to sincerely consider this child’s best interest.”
Everyone involved in the dispute, including the Capobiancos, was in Oklahoma when the couple filed for adoption in South Carolina, the attorney noted. Removing the child to a state with fewer laws preventing the adoption of Indian children, she said, amounted to a “kidnapping.”
At the time, Brown had not heard about the adoption proceeding.
But because Brown didn’t express an interest in Veronica sooner, the S.C. Supreme Court said the Capobiancos didn’t need his permission to adopt the newborn. Without the federal “impediment” of the ICWA, state laws were on the Capobiancos’ side, Chief Justice Jean Toal and justices John W. Kittredge and Kaye G. Hearn said last week.
The adoption also is in Veronica’s best interests, the justices added, mentioning the couple’s intentions to teach the girl about her Indian heritage. The transition plan for the custody switch that the James Island couple drafted is “thoughtful,” the justices added.
Justices Costa M. Pleicones and Donald W. Beatty disagreed, saying they would grant further hearings.
If the adoption is finalized, Brown’s parental rights would effectively be terminated.
“It is our fervent hope that the parties will work together in good faith and place the best interest and welfare of (Veronica) above their own desires,” the chief justice wrote in the order. “This case has reached finality. … That finality should be honored.”
Reach Andrew Knapp at 937-5414 or twitter.com/offlede.