End nears for court battle over custody of Veronica

Veronica and her father, Dusten Brown, in Oklahoma in early April.

Dozens of court hearings, thousands of pages of legal arguments and 473 days after Matt and Melanie Capobianco lost the little girl they were trying to adopt, their attorneys will make one final plea to get her back.

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The Post and Courier’s Andrew Knapp will be in Washington on Tuesday for oral arguments at the U.S. Supreme Court. Electronic devices are not permitted in the courtroom, but for updates before and after the hearing, follow Knapp at twitter.com/offlede and postandcourier.com/veronica.

Both sides of the custody battle for 3-year-old Veronica Rose will argue Tuesday at the U.S. Supreme Court about the application of a federal law aimed at keeping American Indian children with their tribes.

So far, the Capobiancos’ attempts have failed.

The James Island couple have long held that their legal fight for curly-haired Veronica was in her best interests. But they have faced a mountain of opposition from the girl’s biological father and the Cherokee Nation, who said they never had a reasonable chance to challenge the adoption attempt.

Recent photos show Veronica smiling with her father and his new wife in Oklahoma. The father’s camp has argued that Veronica’s return to South Carolina would further traumatize her.

The case, titled Adoptive Couple v. Baby Girl, likely will have long-lasting effects for the Indian Child Welfare Act and whether the law always gives the upper hand to American Indians in such disputes.

The ruling will come down to some key facts, legal questions and arguments.

Q: What circumstances led to the fight?

A: After seven attempts through in vitro fertilization to have a baby, the Capobiancos turned to adoption. Through an agency, they found a pregnant Oklahoma woman who was a single mother struggling to raise two children and wanted to give her unborn daughter a better chance.

Q: Did the unborn child’s father express an interest?

A: Not initially. Dusten Brown acknowledged paternity in text messages to the mother, but he provided no financial or emotional support. Veronica was born in September 2009, and the Capobiancos took her home to James Island days later. Because of paperwork errors, Brown wasn’t notified about the adoption filing until four months later. He promptly filed for custody.

Q: Why did Brown have a second chance after initially denying aid to the mother?

A: Though Veronica’s mother is white, Brown is a member of the Cherokee Nation. Because Veronica has American Indian blood, Brown’s attorneys argued that the Indian Child Welfare Act, or ICWA, gives him a chance to halt Veronica’s adoption. The U.S. Congress passed ICWA in 1978 in response to a staggering rate of American Indian babies being adopted or placed into foster care, which was diluting tribes’ cultures.

Q: What happened in the lower state courts?

A: The legal fight over Veronica started in early 2010, when Brown’s attorneys argued under ICWA that Veronica should return to her native Oklahoma, where she would be immersed in the Cherokee culture. While a Charleston County family court recognized that Brown might have lost his parental rights under state law, it ruled that ICWA overrode that and ordered for the child to be returned to Oklahoma. At age 2, Veronica left the Lowcountry on New Year’s Eve 2011 and has never returned.

Q: What did the S.C. Supreme Court say?

A: In July, the state’s top justices narrowly agreed with the lower court’s ruling. The majority’s opinion stated that it affirmed the decision with a “heavy heart,” but that Veronica would not be emotionally or physically damaged in her return to Oklahoma. Even though Brown had given up Veronica during the pregnancy, his rights should not be disregarded, the court ruled.

Q: What has happened since then?

A: The state justices declined to rehear the case, so the Capobiancos filed for a hearing in front of the nation’s top court. The long shot was granted in January and scheduled for oral arguments Tuesday in Washington. Attorneys for the family, as well as Veronica’s birth mother, filed four briefs totaling 146 pages. Attorneys for Brown and the Cherokee Nation filed two briefs totaling 126 pages. Seven organizations with stakes in the case’s outcome filed briefs supporting the Capobiancos and reversal of the lower courts’ decisions. Twenty-three agencies, including the Department of the Interior, support Brown and affirmation.

Q: What are some of the key legal arguments from the Capobiancos’ side?

A: ICWA should not recognize Brown as a parent because he abandoned his child, leaving the mother with options to abort her or put her up for adoption. The law does not give such a father extra time to reconsider a choice to abandon a child. Brown’s consent to an adoption also wasn’t required because of his abandonment. The state court allowed Brown to veto an adoption under ICWA. But that ruling was in error because he was not considered a parent under state law, and ICWA does not restore Brown’s status as a parent. ICWA instead protects the rights of existing parents as defined by state law.

Q: What are some of the key legal arguments from Brown’s side?

A: Brown never denied paternity. A DNA test is enough to qualify him as a parent under ICWA. He also promptly challenged the adoption attempt when he learned of it. Because the father and the child share the same American Indian blood, the father has rights to the child under the federal law. The state law, therefore, does not apply.

Q: Does the simple fact that the court is hearing the case present a threat to ICWA?

A: Not necessarily. While some ICWA proponents think that, others said the justices are taking the case as an opportunity to solidify it as a law that protects the best interests of an American Indian child. Michael Piraino, CEO of the Court Appointed Special Advocates for Children, said ICWA “protects the kind of relationships that are really crucial to children’s well-being.” Piraino said ICWA simply codifies the “best practices” of child welfare when it comes to the adoption of American Indians.

Q: What will happen Tuesday?

A: Before oral arguments, the nine U.S. Supreme Court justices typically do extensive research, read written arguments and develop at least an initial opinion about the case. Tuesday’s proceeding is more ceremonial in that it gives each side 30 minutes to talk at the courthouse in downtown Washington. The justices also might ask questions of the attorneys to clarify their written arguments.

Q: Who will be there?

A: The Capobiancos and a contingent of about 20 supporters from the Lowcountry plan to attend. A small group of reporters from local and national media outlets will be present, as well as other attorneys who are members of the Supreme Court Bar.

Q: When will the ruling come down?

A: No time period is set, but the justices should issue their ruling before their summer recess at the end of June. The justices also are considering other highly contentious topics, such as gay marriage.

Q: Will the case make history either way?

A: Yes. The court has heard an ICWA case only once before. In 1989, it sided with a tribe in Mississippi that had successfully challenged the adoption of twins. But the facts of that case were different from Veronica’s. Her case will decide whether an American Indian father who had disavowed his unborn child should have a chance to stop an adoption because of his heritage.



CORRECTION: Matt and Melanie Capobianco attempted to adopt Veronica, but the adoption never was finalized. An earlier version of this story was incorrect.



Reach Andrew Knapp at 937-5414.

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