Baby Veronica’s Custody Battle

Baby Veronica has been thrust into national attention several times over the past few years. It all began in April 2009, before Veronica was even born. In April 2009, her biological father, Dusten Brown, abandoned his parental responsibilities and was unwilling to financially support Veronica. Two months later Veronica’s birth mother, Christy Maldonado, decided adoption was in the best interest of Veronica. A month later Christy decided Matt and Melanie Capobianco, the couple who would eventually adopt Veronica, should be the child’s parents.

In September 2009, Veronica is born. The Capobiancos come to Oklahoma and are in the delivery room for the birth. Once the couple received permission, they left Oklahoma and headed to South Carolina with their new daughter. On January 14, 2010, after learning about the adoption Brown filed a suit for paternity and custody. Two months later Brown amended his paternity suit to show that he and Veronica are of Native American decent. The Cherokee Nation then intervened in the case.

In May 2010, Oklahoma determined that Brown is the Veronica’s biological father. However, in July 2010, the Oklahoma Court dismissed the case and the case was transferred to South Carolina. South Carolina set a family court date and declared that since both Veronica and Brown are of Native American decent that the Indian Child Welfare Act (ICWA) applies to the case. The ICWA is a law that governs the removal and out-of-home placement of U.S. Indian children. The ICWA was passed in 1978 with the intent of reducing the high rates of Native American children being adopted by non-Native American families. The main purposes of ICWA are: to protect Indian children; to preserve and strengthen Indian families; ensure permanency for Indian children; to protect the continuing existence of Indian cultures; and to ensure that tribes can exercise their sovereign authority over child custody proceedings. Since the ICWA is a federal law, it trumps state law.

In December 2011, the South Carolina Family Court ruled in favor of Brown under the Indian Child Welfare Act. Brown went to South Carolina on New Years Eve 2011 and picked up Veronica. He and Veronica returned to Oklahoma that same day. The Capobianco’s filed an appeal to the South Caroline Supreme Court.

In February 2002, the South Carolina Supreme Court granted the request and the case was decided in July 2002. In a 3-2 decision the South Carolina Supreme Court stated:

“We do not take lightly the grave interests at stake in this case. However, we are constrained by the law and convinced by the facts that the transfer of custody to Father was required under the law. Adoptive Couple are ideal parents who have exhibited the ability to provide a loving family environment for Baby Girl. Thus, it is with a heavy heart that we affirm the family court order.”

In other words, the South Carolina Supreme Court awarded custody of Veronica to Brown. The Capobianco’s weren’t done fighting yet though. The next move they made was to file a writ of certiorari with the United States Supreme Court.  The United States Supreme Court agreed to hear the case and reversed the South Carolina Supreme Court’s decision. In the decision, the Supreme Court held that the Indian Child Welfare Act does not apply in this case and that the adoptive parents be awarded custody. In the decision, the United States Supreme Court held that several sections of the ICWA do not apply to Native American biological fathers who were not custodians of the Indian child. The court also held that involuntary termination procedures required by the ICWA did not apply when the child had never lived with the father and that therefore active remedial requirements were also not required. Basically, even though Brown and Veronica are of Native American decent, the ICWA does not apply since Brown did not have custody and since Veronica had never lived with him.

The case was sent back to South Carolina and on July 31, 2013, the Charleston County Family Court finalized Veronica’s adoption and ordered a gradual transition plan for the transfer Veronica to the Capobianco’s. That should have been the end of the long and grueling custody battle. However, on August 4, Brown failed to show up for the transfer of Veronica to the Capobianco’s. Because of this, on August 6, South Carolina charged Brown with felony custodial interference, and a warrant for his arrest was issued. In response to this, the Oklahoma Supreme Court issued an emergency stay to keep the child with Brown. The court has not publicly disclosed an explanation for its decision.

On Wednesday, Oklahoma Gov. Mary Fallin signed an extradition order requiring Brown to be sent to South Carolina to face the criminal charges against him. Governor Fallin reasoned that

“[Brown] has disobeyed an Oklahoma court order to allow the Capobianco’s to visit their adopted daughter and continues to deny visitation,”He is acting in open violation of both Oklahoma and South Carolina courts, which have granted custody of Veronica to the Capobianco’s. Finally, he has cut off negotiations with the Capobianco’s and shown no interest in pursuing any other course than yet another lengthy legal battle.”

Brown’s lawyers have appealed the extradition order, and Brown, who turned himself in, was released from jail Thursday on his previous bond of $10,000. A new hearing date is set before District Judge Jeff Payton for Oct. 3.