The S.C. Supreme Court ruled Thursday that 2-year-old Veronica would not be seriously harmed by staying with her biological father, whose successful challenge of a James Island couple’s adoption drew worldwide interest and prompted criticism of a federal law aimed at preserving American Indian families.
The 3-2 decision, met with heartbreak from Veronica’s adoptive family, centered on a question about whether her return would emotionally or physically damage the toddler. It affirmed a family court ruling that relinquished the girl to her father, a member of the Cherokee Nation in Oklahoma, on New Year’s Eve.
At issue was the Indian Child Welfare Act of 1978, a federal law that gives American Indian parents preference in custody disputes. Though the father, Dusten Brown, did not support the girl’s mother during pregnancy, his rights as a parent should not be stripped, the court confirmed.
On a personal level, the justices were reluctant and expressed a “heavy heart” in their 29-page opinion. But they were bound by a law that gives an edge to Veronica’s father because of the Cherokee heritage they shared.
Two justices who wrote 44 pages in dissent argued that the majority ignored Veronica’s best interests in keeping her from Matt and Melanie Capobianco, the couple she came to know as her parents.
It wasn’t federal lawmakers’ intent, the justices wrote, to place her in an American Indian family at all costs.
A family spokeswoman for the Capobiancos said the 73-page filing points out the federal statute’s flaws and a need to adjust it.
“Our hearts are just completely broken,” Jessica Munday said. “The act was meant to preserve families and protect children, but that’s not what it’s doing.”
The family’s next move was not known. Their attorneys could ask the state’s high court to reconsider its decision. If that request is denied, they would have three months to petition the U.S. Supreme Court, though the case’s acceptance would be unlikely, according to a family attorney.
The federal law has been reviewed only once at the highest level. In 1989, Justice William Brennan sided with Mississippi’s Choctaw tribe, which challenged an adoption of twins.
Brown’s attorney, Shannon Jones of Charleston, said her client was elated and tearful at the news Thursday. Brown had been unfairly portrayed by information “disseminated to the public about him and his devotion as a parent,” Jones said.
“They are happy now,” she said. “It was a natural connection between the two of them. There was never a moment of discomfort.”
Reviewing the facts
The decision laid out facts that were argued during a trial in Charleston family court last year.
Before Veronica was born in September 2009 in Oklahoma, her biological parents canceled their engagement and went separate ways.
Brown, an Army soldier who once accrued $11,000 in child-support payments from a previous relationship, acknowledged paternity in text messages to the mother, but did not give her financial support.
He later admitted that his behavior wasn’t becoming of a father, but said he would have been more involved if he knew Veronica was up for adoption.
Veronica’s mother, who already was struggling to support two children, sought adoption because she “wanted her little girl to have a chance,” she later testified. She reached the Capobiancos, whose seven attempts at in vitro fertilization were unsuccessful, through an adoption agency.
The Capobiancos visited the woman during pregnancy and started providing money. Matt Capobianco cut the girl’s umbilical cord, and Veronica flew to her new home in James Island eight days later.
Because of paperwork errors, the Cherokee Nation never contacted Brown about the impending adoption. He didn’t learn of it until four months later, when he was served papers in January 2010.
The soldier quickly filed a motion seeking custody, days before he was deployed to Iraq.
In upholding the lower court’s decision, Supreme Court justices said the girl would benefit from her return to Oklahoma.
Brown, who belongs to a family from the tribe’s Wolf Clan, has participated in traditional “stomp dances” and has attended Cherokee festivals featuring traditional food, crafts and games, the justice wrote.
Decorative Indian pieces are spread through nearly every room in his parents’ house.
The federal act intended to preserve that culture. Legislators presented the bill in the mid-1970s, when adoption and foster care was separating 1 of every 8 Indian children from their tribes. Despite “some early indications of possible lack of interest,” the father battled to get Veronica in spite of intense legal resistance from the Capobiancos, the justices wrote. That indicates that he is sincere about being a parent, they stated.
“We do not take lightly the grave interests at stake in this case,” the justices wrote. “However, we are constrained by the law.”
The justices who disagreed with the ruling cited testimony from Bart Saylor, an expert in family bonding, that Veronica’s removal from her adoptive parents could be “very traumatic” and that depression could result.
Justice John W. Kittredge argued that the court tried to paint Brown in a favorable light as a soldier and Iraq veteran. But his interest in the girl, Kittredge wrote, came too late.
“The facts of the case cannot be ignored,” he wrote. The father “purposely abandoned this child.”
Brown’s attorney released photographs Thursday showing him playing with his daughter, allowing her to place bows on his head and comb his short hair. In another picture, the two smile as Veronica sits on his stomach.
“This child is very happy,” Jones said. “We are so happy that the court’s decision makes certain she will stay in her loving and happy home.”
Munday, the Capobianco friend, said the family continues to be amazed by the support it has received from Lowcountry residents and others nationwide.
She said the family will digest the ruling, then determine what to do next. Munday acknowledged that it has been two decades since the U.S. Supreme Court last heard a case like theirs, but said, “There’s always a chance.”
Reach Andrew Knapp at 937-5414 or twitter.com/offlede.