As more questions are raised about the custody fight for Baby Veronica, attorneys said Tuesday that the legal battle is far from over and could land back in the U.S. Supreme Court.
Last week, the S.C. Supreme Court ordered a Charleston Family Court judge to finalize Veronica’s adoption by Matt and Melanie Capobianco of James Island without holding a hearing to determine what’s in the best interest for the child, who has been living with her father in Oklahoma for the past 19 months.
The state’s top justices also brushed off adoption petitions by Veronica’s loved ones in Oklahoma.
If the South Carolina court doesn’t consider those competing actions, its ruling might be difficult to enforce in Oklahoma and could serve as the basis for another appeal to the U.S. Supreme Court, University of South Carolina law professor Howard Stravitz said.
At issue are state and federal child custody laws, including the Indian Child Welfare Act, and a U.S. Constitution clause that says a court in one state should give “full faith and credit” to parallel proceedings in a different state’s judicial system.
The U.S. Supreme Court ruled last month that Dusten Brown’s rights as a father could have been terminated despite the ICWA, which he used to halt the Capobiancos’ adoption because of his and Veronica’s shared Cherokee heritage. But the justices didn’t say that the ICWA couldn’t be invoked in a different way.
On July 17, the S.C. Supreme Court bowed to the nation’s high court and asked a family judge to complete the adoption, but the Cherokee Nation and Brown have pleaded with the court to reconsider. Attorneys argued this week that the court didn’t know about the tribe’s order giving temporary guardianship of Veronica to Brown’s wife and parents — all of whom have filed to adopt her — and that it didn’t consider the tribal court’s jurisdiction or what was in Veronica’s best interests.
Three American Indian organizations also have threatened to sue South Carolina courts for due-process violations if they don’t hold a hearing to determine Veronica’s best interests. If the court doesn’t grant another hearing, Brown’s attorneys vowed to appeal directly to the U.S. Supreme Court.
“Custody orders are always subject to the best interests of a child at a particular time,” Stravitz said. “But until a final order comes, it’s hard to say what’s going to happen.”
Word on whether the S.C. Supreme Court will reconsider its ruling is expected soon. Whatever decision is handed down likely will mean further court filings and hearings, attorneys said.
Veronica’s birth mother, Christy Maldonado, and her attorney said Tuesday that the order awarding temporary guardianship to Brown’s wife and parents was “legal wrangling” further delaying the child’s return to South Carolina. The order is in effect while Brown is away on a 30-day training mission with the National Guard.
Both sides should instead focus on devising a smooth transition for the 3-year-old back to the Capobiancos, they said.
Maldonado’s attorney, Lori Alvino McGill of Washington, said she thought that the tribe’s move “will not be well taken” by the state’s high court or the U.S. Supreme Court, which had asked state judges to determine who should raise Veronica.
“The Cherokee Nation cannot unilaterally reverse any state court decision it does not like by retroactively manufacturing Indian ‘custodians,’” Alvino McGill said. “This argument is, frankly, a shameful display of hubris on the part of the Cherokee Nation.”
The tribe’s move came five hours before the S.C. Supreme Court issued its ruling last week.
Cherokee Nation spokeswoman Amanda Clinton said Tuesday that the order was a “normal procedure” to provide a home for Veronica in case something happened to Brown during his military service. That it came on the same day as the ruling was “complete coincidence,” she said.
Chrissi Ross-Nimmo, assistant attorney general for the Cherokee Nation, added that the tribe was simply acting in Veronica’s best interests, not asserting any superiority.
Brown’s parents were deemed a pre-approved placement family in 2010, well before the custody battle began, attorneys noted.
“The father was and is the sole legal and physical custodian of Veronica under state law,” Ross-Nimmo said. “He was under mandatory orders to report to training and took steps to protect his daughter.”
Brown’s attorney in Charleston, Shannon Jones, said the argument to transfer the case to Oklahoma is on “solid” legal ground because Veronica was born there.
After the U.S. Supreme Court opinion, Brown and his wife filed papers in Oklahoma state court to adopt Veronica, arguing that it would be in her best interests to stay in her current home.
Brown’s parents also filed petitions in tribal court, saying that the ICWA gave them preference over others trying to adopt Veronica.
The Capobiancos, Jones said, filed documents in South Carolina to adopt Veronica three days after she was born. At that time, the infant girl was still in Oklahoma, as were Brown and Maldonado.
Four months later, when he was notified about the adoption, Brown asserted his parental rights in a court filing in Oklahoma. A South Carolina judge eventually took up his request only because he didn’t have enough money to pay attorneys in two states, Jones said.
He later was awarded custody of Veronica, who went back to Oklahoma in late 2011.
Jones cited the Uniform Child Custody Jurisdiction and Enforcement Act, a law adopted by 49 states that requires a custody dispute to play out in a child’s home state. Such laws were created, she said, so that a court in one state cannot simply disregard custody proceedings in a different state.
“This child’s home state could never be anything but Oklahoma,” Jones said. “If a court didn’t have jurisdiction, any ruling issued by that court is not a valid ruling.”
The U.S. Supreme Court asked South Carolina courts to determine Veronica’s custody status in a way that was consistent with its opinion. But if it does that without considering the Oklahoma proceedings, Stravitz, the law professor, thinks the state courts would paddle into even muddier waters.
Such an order would be subject to “substantial dispute” when the Capobiancos try to enforce it in Oklahoma, he said. He doesn’t think an end is yet in sight.
“There are all sorts of complicated procedures and motions being made right now in Oklahoma and here,” he said. “Everybody will just have to wait.”
Reach Andrew Knapp at 937-5414 or twitter.com/offlede.