Saying he wouldn’t let his daughter cry herself to sleep at night, the birth father of 3-year-old Veronica vowed not to willingly comply with Wednesday’s court order finalizing her adoption because it could harm her.
Dusten Brown’s stance on the judgment in Charleston County Family Court adds the latest wrinkle in a years-long legal battle that isn’t over. He still has options to challenge the results.
Before Judge Daniel Martin approved the adoption by Matt and Melanie Capobianco of James Island, American Indian advocates sued him for an alleged violation of Veronica’s civil rights. The suit asked a federal judge to stop the hearing, but that request was denied.
The adoption order must be certified in Oklahoma, where Veronica has lived for the past 19 months, before a custody switch can be demanded there. Brown’s resistance to it could cause weeks of further delays.
He also has asked the U.S. Supreme Court to overrule the decision and call for further hearings.
Quoting the seven-day transition plan that experts for the Capobiancos devised, he vowed not to let his daughter go through a custody transfer that would leave her “fearful, scared, anxious, confused” and thinking that he rejected her.
“I will not voluntarily let my child go through that. No parent would,” he said. “It is my job to protect her.”
S.C. Supreme Court justices asked last week that a judge promptly complete the adoption. They cited the U.S. Supreme Court’s ruling in June that said the Indian Child Welfare Act didn’t apply to Brown because he had never been in his daughter’s life. A Cherokee Nation member, Brown used the law to get custody in late 2011.
Without the ICWA, Brown wouldn’t have been able to get Veronica, the courts have said.
Wednesday’s hearing lasted nearly 90 minutes, and at least one witness was called into the courtroom. It was closed to the public because of a state law guarding the privacy of adoption proceedings.
Attorneys on both sides cited the law in declining to say what happened, including the detail of the final transition plan. James Fletcher Thompson, an attorney for the Capobiancos, said Veronica’s birth family would continue to play a role in her life.
“We’re now at the point, though, where we can say there’s no winner,” he said. “We now have to turn away from our respective positions and focus only on her.”
The Native American Rights Fund filed a lawsuit against Martin on Wednesday, alleging that his adoption order violates Veronica’s due process rights under the Fifth Amendment.
The civil complaint asks the U.S. District Court in Charleston to decide whether Veronica has the right to a hearing to determine what’s in her best interests and whether she has that right as an American Indian child under the ICWA.
Lori Alvino McGill, the attorney for Veronica’s birth mother, Christy Maldonado, called the suit frivolous, baseless and seriously misguided because only the U.S. Supreme Court can make such a call.
But Brown also has asked the U.S. Supreme Court to stay the South Carolina judgment, delaying any custody switch. In his appeal, Brown’s attorneys said his parents have filed papers in Oklahoma to adopt Veronica and that the ICWA gave them preference because they also are Cherokee members.
In their emergency request, his attorneys told the U.S. Supreme Court that the South Carolina court was wrong in brushing aside those competing adoption attempts. Those petitions should have been considered before the Capobiancos’ adoption was completed, they said.
Chief Justice John Roberts can rule on the request himself, but he likely will ask the other eight justices to weigh in. If he doesn’t, attorneys could appeal to one of the others.
No timetable has been set for a decision, but it’s expected soon. The case has been expedited during the past two years of litigation in state and federal courts.
The Capobiancos’ attorney in Washington, Lisa Blatt, responded to Brown’s request in a filing late Tuesday.
She argued that the ICWA should not allow the relatives to step in because the Capobiancos were the only ones seeking to adopt the girl when the Family Court took up the case two years ago.
Allowing the relatives to invoke the ICWA so late would be “disastrous,” Blatt continued. It would cause prospective adoptive families to shy away from adopting American Indian children.
Blatt said that no actions by South Carolina’s high court were contrary to the opinion by the U.S. Supreme Court, which didn’t specify how custody should be decided when it remanded the case.
In her filing, Blatt pointed to Brown’s attempts to defy court orders. His attorney also defied the state high court’s wishes, Blatt wrote, by commenting to media outlets in Oklahoma and South Carolina, including The Post and Courier.
“(They) have publicly called upon Oklahoma courts to defy the orders,” Blatt wrote. “Those same attorneys have ominously opined that law enforcement officers may have to enforce the (Veronica’s) return.”
Before authorities in Oklahoma can enforce the adoption order, it would need to be approved by courts there.
Brown would have 20 days to file a challenge to the order in his home county. It’s unknown how long that process would take.
If Brown complies with the order and goes along with the transition process — he has vowed not to — the transition could begin even as the U.S. Supreme Court considers his emergency request.
Brown’s attorneys in Charleston will have little role in future litigation, except to ask in the next 10 days for a rehearing in courts here. That’s unlikely to be approved.
Attorneys for the Cherokee Nation will aid his fight in Oklahoma. The tribe’s assistant attorney general, Chrissi Nimmo, said the Cherokee Nation would help “the entire Brown family in their attempt to keep their family whole.”
“This decision was made without a hearing to determine what is in Veronica’s current best interests,” Nimmo said Wednesday. “Every parent in America should be terrified.”
Reach Andrew Knapp at 937-5414 or twitter.com/offlede.
Matt and Melanie Capobianco, accompanied by Charleston County Sheriff’s deputies, leave a county family court hearing Wednesday in their continued effort to adopt Veronica, who lived with them her first 27 months.×
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