The birth father of 3-year-old Veronica is expected to be arrested Sunday after Charleston authorities issued a warrant for his arrest, a move that the Iraq war veteran’s supporters deemed morally and legally suspect as he completes military training.
Dusten Brown, 31, of Nowata, Okla., is wanted by the Charleston County Sheriff’s Office on a charge of custodial interference after he failed to show up for an Aug. 4 visitation with the James Island couple who adopted Veronica.
The charge is a felony punishable by up to five years in prison. But if Brown were to hand over Veronica within three days of the alleged violation, he would instead face a misdemeanor, according to state law. He would face a prison term of up to three years under the reduced count.
Veronica remains with Brown’s parents in Nowata, and it wasn’t immediately known what effect her father’s arrest might have on her custody.
Brown’s supporters on Saturday railed against the arrest warrant, which was issued the night before. One attorney called it a “bizarre” measure because he still has options to challenge his daughter’s adoption.
Matt and Melanie Capobianco, the adoptive parents, have said that law enforcement’s involvement would be a last resort, but their attorney said Saturday that authorities had no other option.
The Capobiancos declined to comment on Saturday’s development.
Their adoption of the girl, who turns 4 next month, was completed last week, when a judge approved a plan for her gradual reintroduction to the couple she lived with for the first 27 months of her life. But Brown’s supporters have said he was in training with the Army National Guard in Johnston, Iowa, and couldn’t make it to the four-hour visit in Charleston.
Sheriff’s Maj. Jim Brady said Brown will turn himself in to authorities in Johnston, Iowa. The extradition process will then begin so that deputies can bring him to Charleston.
Veronica has been living with Brown since late 2011 after South Carolina courts gave him custody of the girl under the Indian Child Welfare Act.
But the U.S. Supreme Court ruled in June that the ICWA didn’t apply to Brown, a Cherokee Nation member, and asked the state courts to decide who should raise the child.
South Carolina’s courts later approved the adoption, saying that without the ICWA, Brown would not have won custody of Veronica under state law.
A spokeswoman for the Cherokee Nation, the tribe in which Brown and Veronica are citizens, said the arrest warrant was “morally reprehensible and legally questionable” because opposing attorneys, judges and prosecutors were aware that Brown was on the 30-day training deployment.
The Capobiancos and their supporters, however, have countered the argument, saying that Brown’s attorneys never asked that Veronica’s first visit with the couple be delayed and that the Army specialist could have asked his commanding officer for leave from his obligations in Iowa. They said Brown never intended to comply from the outset.
Amanda Clinton, the tribal spokeswoman, mentioned the legal hurdles that the adoption decree could face in Oklahoma before it can be enforced there.
Brown’s attorneys have said that the decree must be confirmed in state or tribal courts before Oklahoma can enforce it. Brown has 20 days to challenge the measure.
The tribe’s court also could stake a claim to jurisdiction over Veronica’s adoption, they argued, because it granted temporary guardianship of the toddler to her paternal grandparents while Brown is away on military duty.
But the Capobiancos’ representatives and other legal experts have said that the argument is far-fetched because the U.S. Supreme Court had asked South Carolina courts to make a final ruling on the girl’s custody status. Brown also appeared in courts here in 2011, when he successfully halted the Capobiancos’ adoption. Challenging the same courts’ authority now that he’s on the losing end is suspect, some attorneys have said.
“To take these steps when there are pending legal actions ... is appalling,” Clinton said. “Not only is the adoptive couple asking this child be ripped from her father while he is serving our country, they are also endangering his military career in the process. This is outrageous conduct.”
The Capobiancos have said that they wanted to avoid resorting to law enforcement measures to regain custody of their adopted daughter.
“The sheriff and the solicitor worked diligently this week in an effort to resolve this matter without the necessity of filing criminal charges,” their primary attorney in South Carolina, James Fletcher Thompson, said Saturday. “Unfortunately, charges became necessary.”
In a letter that he sent last week to Brown’s attorneys here, Shannon Jones of Charleston and John Nichols of Columbia, Thompson encouraged them to communicate with him about the upcoming meeting at his office in downtown Charleston.
“I have been disturbed by reports that Mr. Brown does not intend to comply with this transition plan,” Thompson wrote. “Just as it was painful for Matt and Melanie Capobianco to turn over Veronica to Mr. Brown nineteen months ago, they did so because the rule of law required it.”
He asked the attorneys to use their “considerable influence” to encourage him to abide by the adoption decree and transition plan.
The plan called for Veronica’s reintroduction to the Capobiancos over a five-day span. At the end, she would go to James Island to live with the couple, who said they would help Brown pay for accommodations while he was in Charleston.
The Capobiancos also said they wanted to include Veronica’s Oklahoma family in her life after the custody change.
“If Mr. Brown does not comply with the court order, I fear that things are going to spiral down in the wrong direction, away from the rule of law and away from an orderly and child-focused transition for Veronica,” Thompson said. “(The Capobiancos), despite all the difficulties of this long ordeal, continue to have much good will towards Mr. Brown, and wish to have him continue to be a part of Veronica’s life.”
Jones, the Charleston attorney, said she made continued attempts to compromise with the Capobiancos “to find a reasonable solution, only to be told repeatedly that it’s all or nothing for them.”
Nichols, the Columbia attorney, added that it was “weird and bizarre” that his client would be arrested because he has not yet exhausted his legal options in South Carolina and Oklahoma.
Nichols has asked Charleston County Family Court Judge Daniel Martin for a rehearing on the adoption, a motion that will be addressed during a downtown courthouse appearance Wednesday.
He said state law also provides a 10-day stay of any adoption decree as attorneys ask a judge to reconsider. Instead, Martin called for the transition period to start four days after issuing his order.
Nichols faulted the S.C. Supreme Court for ordering a judge to approve the adoption without delay, tying Martin’s hands from delaying the legal saga’s resolution.
The attorney acknowledged that he and Jones simply objected to any transition plan without proposing their own. But that’s because Brown doesn’t think that the adoption is in Veronica’s best interests, Nichols said. Brown’s military duty had been ordered in January, Nichols added, long before the U.S. Supreme Court overturned the decision that put Veronica in his custody.
“This is an attempt to cost him his freedom, his service to his country and his job,” Nichols said. “He is just a fit biological father trying to raise his child.”