Baby Veronica’s biological father, stepmother and paternal grandparents have filed court papers in Oklahoma to adopt the 3-year-old girl, a move that dissenting U.S. Supreme Court justices warned could happen and will likely complicate the custody dispute.
Attorneys for Matt and Melanie Capobianco of James Island and for Veronica’s biological mother said Monday that the action defies the high court justices, who asked South Carolina judges to determine where Veronica should live.
The toddler’s mother found the Capobiancos through an adoption agency and, when the girl was born in September 2009, gave custody to them.
Lori Alvino McGill, the Washington attorney for Veronica’s biological mother, said her client, Christinna Maldonado, has not agreed to allow the adoption by anyone other than the Capobiancos and will fight the termination of her parental rights if the couple’s adoption doesn’t go through.
“We believe these frivolous filings in other jurisdictions are designed to further delay the proceedings,” McGill said, “in the hope that it will make it harder for South Carolina to finalize the (Capobiancos’) adoption.”
A Charleston attorney for Veronica’s father said Dusten Brown simply wants to continue raising his daughter.
“We are just trying to follow the direction and guidance of the majority opinion,” Shannon Jones said, “and let the court decide what is in the child’s best interest at this point.”
Brown, a member of the Cherokee Nation in Oklahoma, challenged Veronica’s adoption through the Indian Child Welfare Act, arguing that their shared American Indian heritage gave him preference as a parent.
The Supreme Court ruled late last month that ICWA didn’t apply to the dispute the way a South Carolina judge thought it did. Brown’s parental rights could have been terminated because he never had custody of the girl and never supported her, the justices said.
Justice Samuel Alito, who wrote the majority opinion, tossed the case back to the S.C. Supreme Court and ordered that it be expedited so that Veronica’s custody status could be determined.
But in documents filed with the South Carolina’s top court Wednesday, Brown’s attorneys used portions of the ruling that went against them in Washington to their own advantage.
Veronica has lived with Brown in Oklahoma since he was awarded custody in late 2011, and removing her from the “continued custody” of a loving home wouldn’t be in her best interests, Brown’s filing stated.
His attorneys asked that the case be sent back to Family Court in Charleston so that judges could consider “fresh” evidence. Because 18 months have passed since the custody switch, they argued, much of the information ferreted out during the Family Court trial is stale and wouldn’t serve as a legitimate basis for a custody ruling.
They said she should stay with the “fit and loving father” she’s with now. The girl also has matured emotionally and physically and has developed social skills with her new family, they said.
Veronica “has been extremely well cared for and loved by her father and has thrived,” the document stated.
But if Brown’s parental rights are terminated, his attorneys have a backup plan.
In disagreeing with Alito’s opinion, Justice Sonia Sotomayor wrote that the U.S. Supreme Court’s ruling could mean that Brown’s relatives could be considered as adoptive parents and that ICWA would give them preference.
Brown and his wife, Robin Brown, both filed adoption petitions in the District Court of Nowata County, where they lived. Veronica’s stepmother would be a logical choice to raise the girl because they already live in the same home, Brown’s attorneys argued.
But Brown’s parents, Tommy and Alice Brown, also asked the District Court of the Cherokee Nation for a chance to adopt Veronica under ICWA. They have been a certified placement family for the Cherokee Nation since 2011, the court filings stated.
Such petitions could require that the case be transferred from South Carolina to Oklahoma courts.
But those arguments are “absurd” and “offensive to the authority of the United States Supreme Court,” attorneys for the Capobiancos said in a response to Brown’s filing. They noted that some of Brown’s argument was based on the dissenting opinion, not the majority’s.
The Capobiancos had asked the state’s high court Friday to take up the case on an emergency basis, arguing that the ruling in Washington “unequivocally cleared the way” for the couple’s adoption of Veronica to be finalized.
The couple is “willing and able” to move to Oklahoma to ease Veronica’s transition, the document added.
But the competing adoption attempts might further delay a final ruling.
The Capobiancos’ attorneys said the added petitions violate the federal Parental Kidnapping Prevention Act, which outlaws “forum shopping” in seeking a more favorable venue when a different court already is addressing the case.
They added that the U.S. Supreme Court could not have possibly overturned the lower court’s decision and asked that South Carolina judges take up the case promptly without intending a tangible outcome.
“(Brown) audaciously treats the (U.S. Supreme Court) reversal as an academic exercise with no real world consequences,” their filing stated. “(He) acts as if a decision ... is just a technicality — an inconvenient bump in the road that has no practical effect.”