Both sides of Veronica fight fear consequences of unfavorable ruling

Dennis Zotigh, an American Indian from Oklahoma City, performed an “honor song” Tuesday as Dusten Brown and his wife Robin watched outside the U.S. Supreme Court before oral arguments in the custody battle over Brown’s daughter Veronica. Buy this photo

­­­— Sandy White Hawk doesn’t know baby Veronica. She doesn’t know the 3-year-old’s dad. She doesn’t know the James Island family who tried to adopt the girl at birth.

What’s next

The U.S. Supreme Court should issue its opinion by at least the end of June. Because it determines a child’s custody, the case was fast-tracked through the courts after the initial ruling that forced the Capobianco family to relinquish Veronica. But it’s not known whether the nine justices will prioritize their decision.

The case, titled Adoptive Couple v. Baby Girl, won’t necessarily end with the finding. The justices could overturn or affirm the lower courts’ rulings outright, or they could send the case back to state courts for revisions of certain points that might or might not affect Veronica’s custody.

But she knows what Veronica could experience if the toddler isn’t raised in a culture that values her American Indian heritage, White Hawk said.

Standing Tuesday on the steps of the U.S. Supreme Court, she recounted how she was adopted out of a Sioux community because her mother had struggled to provide for her.

She spent some of the next 35 years coping with drinking problems until she reconnected with her family in South Dakota. Now she wants “all the baby Veronicas in years to come” to get that opportunity at an early age, she said.

“Growing up outside your culture ... impacts your identity,” White Hawk said. “Veronica needs the chance to understand who she is.”

Stories like hers served as the rallying point for attorneys for Dusten Brown of Oklahoma, Veronica’s biological father, and his Cherokee supporters during oral arguments Tuesday in front of the nation’s top justices. Lower courts awarded Brown custody of the curly-haired girl in late 2011 under the Indian Child Welfare Act, a federal law aimed at keeping American Indian children in their native communities.

If the justices overturn those rulings, the attorneys warned them, ICWA’s purpose could be defeated.

To the attorneys for Matt and Melanie Capobianco, who had turned to adopting Veronica because they couldn’t have a child of their own, the domino effect of agreeing with the South Carolina courts also could be nightmarish.

They depicted scenarios in which rapists and sperm donors claim rights to a child over a mother’s wishes just because they share American Indian blood. That tramples a mother’s constitutional right, they argued, to determine her child’s destiny.

“You are relegating adopted parents to go to the back of the bus and wait in line if they can adopt,” Washington attorney Lisa Blatt, who spoke for the Capobiancos, told the justices. “And you’re basically relegating the child to a piece of property with a sign that says, ‘Indian: Keep off. Do not disturb.’ ”

Clarence Thomas was the only justice who didn’t ask the attorneys questions, which often came in rapid succession during the one-hour proceeding.

The nine justices are expected to issue a decision before their summer recess at the end of June.

Facts in question


The facts of the case were ferreted out during earlier proceedings, but the two sides differed greatly in explaining them to the Supreme Court.

Brown, an Army reservist, and Christinna Maldonado, a Hispanic mother of two, were engaged when Maldonado became pregnant. In early 2009, according to a brief in Brown’s favor, Maldonado stopped answering his calls.

By June, she gave him a choice — pay child support or give up his parental rights. He relinquished his rights, not knowing that an adoption could be in the works.

That’s about when the Capobiancos came into the picture.

They met Maldonado through an Oklahoma adoption agency. Maldonado had turned to adoption because she already was struggling to provide for two children.

When Veronica was born, her mother signed custody over to the Capobiancos, who took her to the Lowcountry.

In the briefs that attorneys for Brown and the Capobiancos filed, their explanation of hiccups in the adoption process varied.

Maldonado was aware of Brown’s status as a Cherokee member, but when her attorney provided the tribe with his name, it was misspelled. Brown’s attorneys regarded that as an attempt to conceal the adoption and the father’s heritage.

Brown was not informed of the Capobiancos’ plans to adopt Veronica until four months later, when he was served court papers. He balked, hired an attorney and later blocked the adoption.

But his claim of Veronica at the “eleventh hour,” the brief for the Capobiancos stated, was “too late.”

The court battle


Central to the attorneys’ arguments is how the two sides define a parent.

ICWA helps place children who could qualify as tribal members with other American Indian families or strives to keep them with their biological families through “remedial” efforts to make their parents more fit.

Attorneys for the Capobiancos’ side argued that Veronica’s biological father shouldn’t have those rights as a parent to block adoption proceedings, because he hadn’t expressed interest in the child or supported the mother during the pregnancy.

Brown’s attorneys argued that the law gives him the opportunity to halt the adoption under ICWA because of his biological link to Veronica. A family court in Charleston eventually ruled in his favor, and Veronica went to live with Brown. The S.C. Supreme Court later agreed.

Blatt told the justices Tuesday that Brown would have lost his rights as a father under state law and that ICWA doesn’t create a new class of parents that otherwise have no rights.

Justice Sonia Sotomayor promptly took exception to Blatt’s argument.

“I’m not asking about state law,” she said. “I’m asking about federal law.”

Justice Antonin Scalia also fired questions at Blatt and Paul Clement, a Washington attorney representing Veronica’s court-appointed guardian who supports her return to South Carolina.

Blatt and Clement have argued that Veronica’s adoption would not break up any pre-existing American Indian family because Veronica had not been a part of one. Her mother is Hispanic; her father wasn’t in her life.

Scalia countered with questions not just about what had been, but about what might have been. He and Blatt butted heads frequently.

“They’re taking the child away from him even though he wants it,” said Scalia, who sided with an American Indian tribe in 1989, the only other time the Supreme Court had heard an ICWA case. “He’s the father, the other woman’s the mother. That’s the Indian family, the father, the mother and the kid.”

Chief Justice John Roberts, himself an adoptive father, remarked at how “a drop of blood can trigger all these extraordinary rights.” Veronica’s ethnic makeup is about 3/256th American Indian, he pointed out.

Roberts called into question Brown’s level of interest as a father, even though he was later deemed a capable parent.

“He was excited by (the pregnancy),” Roberts said. “He just didn’t want to take any responsibility.”

Roberts and Justice Stephen Breyer asked about situations in which a father who has little contact with his child or with the pregnant mother invokes ICWA to gain custody, despite the mother’s wishes and the child’s best interests. A rape victim, for example, could lose her child if an American Indian father wins custody through ICWA.

“The child would be taken and given to the father who has never seen it and probably just got out of prison,” Breyer said. “That’s obviously something I find disturbing, as a person and also as a judge.”

Brown’s attorney, Charles Rothfeld of Washington, scoffed at the theory, saying that a court would easily rule that placing a child with such a father “could lead to serious physical or emotional damage.”

The road ahead


How the justices will rule wasn’t a question attorneys could answer after the hearing.

One of Brown’s attorneys in Charleston, Shannon Jones, feared the consequences of a ruling that would send the case back to the state level.

“There will be a number of issues to be addressed if that happens,” she said. “I’m not sure what those would be, but it’s going to take time, and that’s not in Veronica’s best interests.”

More time is a concept that strikes fear in both sides.

In a packed courtroom, Brown often smiled and chuckled with his wife Robin, whom he married in June.

The Capobiancos were more stoic as they chatted in the courthouse. They didn’t join journalists who later assembled outside. They held hands and they kept their thoughts close. Matt Capobianco said he couldn’t guess how it all might end.

“I don’t know what to think,” he said. “I am glad we had so many people here to support us.”

But the family’s supporters were lost in a sea of beaded jewelry, a drum and other traditional items for many American Indians. Tribes nationwide sent representatives.

One man from Oklahoma beat on a drum and sang an “honor song” in his native tongue, which symbolizes an important day.

The Cherokee nation’s chief, Bill John Baker, remarked that failure on such a day would mean “disaster” for all American Indians.

They had their say in the courtroom too. Former New Mexico Gov. Bill Richardson, 63 tribes from California, the American Civil Liberties Union of South Carolina, 18 states, Congress members and the Obama administration all filed briefs in support of their interests.

Brown, 32, said nothing in response to reporters’ questions. In a statement released by his attorneys, Brown said he just wants the same right every other American has — to raise his own child. He spoke of using Veronica as motivation when he was deployed to Iraq shortly after he learned of the adoption attempt.

“It felt like someone stabbed me right in the heart,” he said. “That piece of my life was just taken from me right there.”

Veronica spends her days frolicking in bubbles, chasing her pet duck in the backyard or stuffing her favorite snack — green and black olives — into her mouth until her cheeks bulge.

It’s a life, Brown’s attorneys said, that any child would dream of having. She seems unaware, they added, of how much she matters to so many people.



Reach Andrew Knapp at 937-5414 or twitter.com/offlede.

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