Whether Dusten Brown ever sees his biological daughter again could hinge on whether Veronica’s adoptive parents give him that chance or on the results of long-shot court appeals, attorneys said Tuesday.
Matt and Melanie Capobianco of James Island welcomed the 4-year-old back into their lives Monday night and promptly drove out of Oklahoma, where Veronica had lived for nearly 21 months.
They got custody after Oklahoma’s high court cleared a path for their adoption decree to be enforced there. They posed for a family picture Tuesday outside a gas station. All three smiled. The couple later said in a statement that they were “overjoyed” and doing well.
When they’ll return to the Lowcountry wasn’t something that authorities would discuss. Whether Veronica will go back to Oklahoma for visits also remains unresolved.
Discussions to work out a visitation deal fell apart hours before the Capobiancos regained custody. Attorneys familiar with the talks said the divide between them and Brown was just too wide.
The couple had repeated in interviews that they welcomed visits between Brown and their daughter. But the only court order in the case gave the couple full custody.
Lori Alvino McGill, their Washington attorney, said any future visits should respect the Capobiancos’ role as Veronica’s parents.
“I don’t know how the Capobiancos will handle any future contact with Mr. Brown,” she said. “But it may take some time for both families to heal before that even becomes a realistic possibility.”
Brown has legal options.
Still unclear is whether he would appeal an Oklahoma court’s decision to enforce the South Carolina adoption decree and where that appeal would be heard.
The state’s high court never ruled on the case; it simply allowed a lower judge’s order to stand.
But when they issued an order Monday, a few justices said a court should have held a hearing to determine whether a custody change would be in Veronica’s best interests. That didn’t happen in recent litigation — presenting a legal question that some attorneys said could serve as a basis for an appeal.
The Capobiancos’ appeal to the U.S. Supreme Court that eventually gave them custody was based on a different law: the Indian Child Welfare Act.
Also crucial to Brown’s fate is what happens to the felony criminal charge that he faces in South Carolina after he refused to hand over his daughter this summer. He is expected to challenge extradition during an Oct. 3 hearing in Oklahoma.
Officials gave no indication Tuesday that they were about to let up.
Gov. Nikki Haley was still working “to find a solution that is in the best interests of both states and most importantly baby Veronica and the Capobiancos,” spokesman Doug Mayer said.
Brown had agreed to hand Veronica over to the Capobiancos when they showed up Monday night in Tahlequah.
His compliance and plans for “some continued interaction between the Capobiancos” and him, Charleston County Sheriff Al Cannon said, could be factors that courts will weigh, but the criminal matter still must run its course.
“There is a warrant ... and that has to be resolved,” he said. “There is every intention that that process continue to its conclusion, whatever that conclusion may be.”
After Veronica left tribal land, Cherokee Nation Attorney General Todd Hembree said he was “deeply saddened” but hadn’t lost hope. Veronica always will be a tribal citizen unless the Capobiancos choose to have her unenrolled.
“We also look forward to her visiting the Cherokee Nation for many years to come,” Hembree said. “Veronica is a very special child who touched the hearts of many, and she will be sorely missed.”
But the talks between the two sides to ensure her visits had been fruitless.
During six days of negotiation, Brown and the Capobiancos weighed proposals. Attorneys said that the talks were confidential and that they couldn’t discuss them.
But people with knowledge of the mediation process said that early last week, Brown had agreed to a 21-day visit during summers in Oklahoma, a two-day visit six times a year in Charleston and five days around Christmas every other year.
By the end of last week, the visitation scheme had been whittled down to 10 days in the summer, two days every other month and no time around Christmas, the sources said.
Brown’s attorney in Charleston, Shannon Jones, said her client hoped to extend a hand of goodwill. He had considered inviting the Capobiancos to Veronica’s birthday party Sept. 15.
But the talks spiraled downhill, and that invitation was never extended.
“At the end of the day, he hopes Veronica sees that they both love her as parents,” Jones said. “He hopes (the Capobiancos) see that and give him time with her.”
But Alvino McGill, the Washington attorney, said publicized accounts of the mediation process had been “grossly misleading.” She declined to explain her stance because of a judge’s gag order.
Attorneys had viewed the negotiations as a chance to “avoid a situation where a sheriff would be picking up the child,” Alvino McGill said. But, she said, “you can’t mediate the issue of who a child’s parents are.”
In a statement Tuesday, the couple said that their reunited family was trying to heal but that they sympathized with Brown.
“Despite our differences, and everything that has happened over the last several months,” they said, “we all love Veronica and want what is best for her.”
After the Capobiancos got the go-ahead to get custody, Clark Brewster, the attorney for Brown, told the Tulsa World newspaper that the fight was “far from resolved” and that he could appeal to the state’s high court.
The Capobiancos’ attorney in Oklahoma also expected further legal filings.
“Physically, it’s over,” said Noel Tucker of Edmond. “Legally, there is more to come.”
What form that will take remained unclear Tuesday.
To outside observers, Monday’s development seemed final.
Jay McCarthy, an Arizona adoption lawyer, said Brown could take an order from a tribal court that gave him custody and ask for it to be enforced in South Carolina. But courts here already have issued a ruling giving the Capobiancos custody.
The U.S. Supreme Court also has declined to stop actions finalizing the adoption, he noted.
“It seems like they’re all done,” said McCarthy, who has supported the adoptive parents. “I don’t see him having any viable options.”
If Brown had grounds for an appeal to Washington, he would have 90 days to request one.
Oklahoma justices who dissented from Monday’s order hinted at one legal question in the balance: that a hearing to determine Veronica’s best interests had not been held.
Veronica “deserves her day in court,” Justice Noma Gurich said.
As a University of South Carolina law professor, Howard Stravitz has supported such a hearing. But he said courts probably erred both times when they ordered custody changes.
“It’s really a shame in both instances,” Stravitz said. “I think the whole thing was mishandled.”
When a tribal attorney carried Veronica to the Capobiancos on Monday night, she had little reaction.
“She’s wasn’t upset,” said Tucker, the Capobianco attorney who witnessed the reunion. “She didn’t cringe. She didn’t cry.”
The family didn’t plan to immediately return to Charleston.
They would instead stay with the two deputies and the state agent that Cannon sent to Oklahoma on Monday on a hunch that a development would occur, the sheriff said. The authorities want to ensure that they have a safe and smooth journey, Cannon said.
Likely playing into their decision to delay their return was the news media gathered outside their James Island house.
One of the Capobiancos’ neighbors, 49-year-old Jeannie Wiggins, rejoiced at the family’s impending return, but she bemoaned the frenzy it was creating.
“They have to be exhausted,” Wiggins said of the family. “And then that child, she’s been through so much. I just feel like all this is going to scare her.”
But for now, the couple is enjoying Veronica’s company, said one of their attorneys, James Fletcher Thompson of Spartanburg. Veronica was photographed Tuesday riding in a car and beaming a wide-eyed smile as her adoptive mother mirrored her expression.
“They’re having such a wonderful a time,” Thompson said.
Christina Elmore and Glenn Smith contributed to this report. Reach Andrew Knapp at 937-5414 or twitter.com/offlede.