Veronica custody dispute likely to end with more confrontation, experts say
A little girl clings to a loved one as law enforcement vehicles pull up.
An officer holds up a court paper ordering the family member to hand over the girl.
This is how experts think the dispute over 3-year-old Veronica could end if the toddler's birth father, Dusten Brown, defies a court order finalizing her adoption. But it's a scenario that would not come easily.
Matt and Melanie Capobianco of James Island, who cared for the girl during the first 27 months of her life, had hoped to see the toddler during a visit Sunday in South Carolina.
It was their chance to enforce the order declaring them Veronica's adoptive parents on their own turf.
But because no one representing Veronica or Brown greeted the couple, the Capobiancos must resort to more complicated measures.
They'll fight to have the South Carolina adoption measure confirmed in Oklahoma courts and enforced with the help of local law enforcement there. Brown can challenge that, but attorneys said it's unlikely that any court would discard another's judgment.
If Brown resists, the FBI could invoke federal parental kidnapping laws and call for his arrest, said Jay McCarthy, an adoption attorney in Arizona who has advocated for the Capobiancos.
“It's being pushed to that kind of confrontation,” McCarthy said. “Everyone loves this kid, but this is not what anyone wants.”
State and federal prosecutors already have been asked to get involved after the missed visit, but the authorities have not indicated any immediate action.
Brown is still on a 30-day National Guard training mission and could not have legally attended the meeting, said Chrissi Nimmo, assistant attorney general for the Cherokee Nation. But the next day, a Charleston judge's order, which called for a prompt custody change, stated that either Brown or Veronica's temporary guardians were supposed to be there.
Implying any wrongdoing by Brown was “disgusting,” said Nimmo, one of the attorneys expected to help him fight the adoption order in Oklahoma.
“This is another ploy to paint Dusten as the bad guy,” she said. “It is especially appalling while he is serving his country.”
A Cherokee Nation member, Brown got custody in late 2011 because of the Indian Child Welfare Act. The U.S. Supreme Court said in June that the ICWA didn't apply to him and asked South Carolina to decide who should raise Veronica.
The Charleston County Family Court finalized the Capobiancos' adoption last week and called for a gradual re-introduction.
But before any transition starts, Brown is entitled to a hearing in the state where Veronica lives and to “effective assistance of counsel,” said Shannon Jones, his attorney in Charleston. The judge's follow-up order that called for law agencies to step in was “nothing more than bullying tactics,” she added.
“Where the law ends, tyranny begins,” Jones said. “You are witnessing tyranny.”
Both Jones and John Nichols, Brown's Columbia attorney, were asked to divulge to the Family Court judge where Veronica is. Both declined to tell a reporter how they responded.
In Oklahoma, Nimmo said the girl's legal guardians, Brown's parents and his wife in Nowata, were still caring for her.
Though they wouldn't discuss their strategy, Nimmo and other attorneys have indicated that their challenge to the South Carolina adoption order will hinge on jurisdiction questions.
The state courts in South Carolina and Oklahoma, as well as the Cherokee Nation court, each have stakes, she said.
The tribal court asserted authority when it awarded temporary custody to Brown's wife and parents as he undergoes military training. It considered Veronica a Cherokee citizen.
His parents also have filed in the tribal court to adopt Veronica, claiming that the ICWA gives them preference over the Capobiancos. The Browns live in a county where the Cherokee court operates.
Brown's Columbia attorney countered experts who said he couldn't challenge South Carolina's jurisdiction because he hadn't done so when the case was first heard. Nichols said he raised the question last year in the S.C. Supreme Court but was promptly “shut down.”
Attorneys could base their jurisdiction challenge on key facts: Veronica was born in Oklahoma, the Capobiancos filed to adopt her while she was still there, and she was there when the adoption was completed.
Marcia Zug, an associate professor at the University of South Carolina School of Law, said Oklahoma could use the jurisdiction issue as a way to ignore the South Carolina adoption order because it came without a recent hearing on what's best for Veronica.
“(South Carolina) did have jurisdiction at the time,” Zug said of the 2011 proceedings. “But a state can lose it if the parents and child no longer live there and since Brown has been the legal father” for the past 19 months.
End in sight?
If judges issue contradictory orders, the case could end up again in the U.S. Supreme Court.
End in sight?
But how and when it all ends is guesswork.
Getting an Oklahoma judge to honor the South Carolina decision under the U.S. Constitution's “full faith and credit” clause could bring the swiftest resolution for the Capobiancos.
But McCarthy said further action through the FBI, which handles kidnapping cases, or the courts might be needed if Brown doesn't comply. One option, the attorney said, would be for the Capobiancos to pursue a writ of habeas corpus requiring Veronica's guardians to give her up.
Solicitor Scarlett Wilson and Beth Drake, spokeswoman for the local U.S. Attorney's Office, declined to say Tuesday how they're handling the alleged violation of the Family Court's order.
Lori Alvino McGill, the Washington attorney for Veronica's birth mother who has been speaking in defense of the Capobiancos, said attorneys expect law agencies to seek an indictment.
If that happens, “there's no way to avoid extradition and compliance,” she said. “Everything possible is now being done to ensure Veronica's safe return.”
Reach Andrew Knapp at 937-5414 or twitter.com/offlede.