(WASHINGTON) — Last spring, when the Supreme Court heard a custody battle involving a young child, her biological father and an adoptive couple, Justice Sonia Sotomayor anticipated that even after the Court ruled, the heartbreaking saga would be far from over.
Sotomayor was right. The high court decided one aspect of “Adoptive Couple v. Baby Girl” in June, but over the summer the case continued to ricochet between state supreme courts, county judges and tribal courts.
There have been extradition requests, emergency motions and gag orders, and yet the four year old child – “Baby Veronica” — is still living in legal limbo.
Sotomayor anticipated the anguish when she wrote, “However difficult it must have been for [Veronica] to leave Adoptive Couple’s home when she was just over 2 years old, it will be equally devastating now, if, at the age of 3 1/2, she is again removed from her home and sent to live halfway across the country.”
The arguments before the Justices concerned the fact that the child is a member of the Cherokee Nation. Justice Anthony Kennedy had pity for lower court judges. “If we could appoint King Solomon, who was the first domestic relations judge as a special master, we would do it,” he said. “But we can’t,” he said at oral arguments.
Back in 2008 the child’s biological mother, Christy Maldonado, who is predominately Hispanic, was briefly engaged to Dusten Brown, the biological father, who is a member of the Cherokee Nation and lives in Oklahoma. By May 2009, four months before the baby was born, the relationship had soured and the mother texted Brown asking him if he would rather pay child support or relinquish his parental rights. Brown responded via text message that he relinquished his rights.
The birth mother worked with a private adoption agency and selected a non-Indian South Carolina couple, Matt and Melanie Capobianco, to adopt the baby. They were present at birth, and when the child was four months old, the Capobiancos served Brown with a notice of the pending adoption, which they believed he had a right to under federal law.
Some facts in the case are disputed, but Brown later testified that he thought he had relinquished his rights to the birth mother, not to the Capobiancos. He eventually sought custody with the help of lawyers from the Cherokee Nation.
In September 2011, when the child was two years old, a South Carolina Family Court awarded custody to Brown. At the age of 27 months the child was handed over to Brown, whom she had never met.
The decision was later affirmed by the South Carolina Supreme Court. Lawyers for Brown had argued that a federal law, the Indian Child Welfare Act of 1978, barred the adoption of Baby Veronica.
The law was passed to halt the depletion of the tribal population at a time of rising concern that Native American children were facing child welfare practices that led to the separation of Native American families and tribes through adoption.
The Capobiancos appealed the decision to the Supreme Court.
Justice Samuel Alito, writing for a 5-4 Court, ruled in favor of the couple in June. Alito noted that Veronica was classified as an Indian for the purposes of the because she is 1.2% (3/265) Cherokee on her father’s side. But he said that Brown should not have been able to invoke the federal law in part because “he never had legal or physical custody of” Veronica. Alito noted that Brown had abandoned the child before birth.
In dissent, Justice Sotomayor said the majority “transforms a statute that was intended to provide uniform federal standards for child custody proceedings involving Indian children and their biological parents into an illogical piecemeal scheme.” Sotomayor was joined in full by Justices Elena Kagan and Ruth Bader Ginsburg and in part by Justice Antonin Scalia.
On July 17, the South Carolina Supreme Court cited the Supreme Court’s decision and approved an order finalizing the Capobiancos’ adoption of Veronica.
The Cherokee Nation released a statement saying it was “gravely disappointed” that the South Carolina Supreme Court had refused a request to hold a new “best interests” hearing for Veronica.
“This child has been living in a healthy, loving and nurturing home with her father and stepmother for more than a year and a half. She is surrounded by a loving extended family, which includes her grandparents, sister and cousins. Dusten has always been found to be a fit and loving father, yet the South Carolina Supreme Court considered none of these factors, including the father/daughter bond they have developed over the last 19 months,” said Cherokee Nation Assistant Attorney General Chrissi Nimmo in a statement on the Cherokee Nation website.
As Brown and his attorneys continued to fight the decision on jurisdictional issues, South Carolina Gov. Nikki Haley signed a warrant for Brown’s extradition to face custodial interference charges in South Carolina. Oklahoma’s Gov. Mary Fallin signed the request on Sept. 4.
In a statement, Fallin said that she didn’t sign the request immediately because her goal had been to encourage Brown and the Capobianco family to reach a quick settlement.
“Unfortunately, it has become clear that Dusten Brown is not acting in good faith,” Fallin said. “He is acting in open violation of both Oklahoma and South Carolina courts, which have granted custody of Veronica to the Capobiancos. Finally, he has cut off negotiations with the Capobiancos and shown no interest in pursuing any other course than yet another lengthy legal battle.”
Pursuant to the extradition request, Brown gave himself up to authorities at Sequoyah County jail, but a judge released him on bond. His lawyers told local reporters at the time that Fallin misunderstood the facts.
It has been difficult to follow the case at times because motions have been filed in different jurisdictions, many filings are under seal and there has been a gag order imposed on certain aspects of the case.
For now, according to a one-line sentence in the docket, the Oklahoma Supreme Court is allowing Brown to keep the child.
Michael Overall of the Tulsa World estimates the case has spanned three counties, the Oklahoma Supreme Court and the tribal court.
The fact that the tribal court is involved could complicate the claims, according to Robert Anderson, an American Indian law expert at the University of Washington Law School.
“If the birth father and his wife acquiesce in the Oklahoma state court’s jurisdiction over the matter, then the Oklahoma court will have the final word with respect to the validity of the South Carolina court’s order. On the other hand, if the Cherokee Nation courts were to assert jurisdiction based on the child’s domicile in the Cherokee Nation’s territory, it’s possible that the federal courts would need to get involved to determine the relative bounds of tribal and state jurisdiction as a matter of federal law.”
Anderson says, “American Indian law is an exceedingly complex area, and this case is a difficult one within this web of tribal law, state law and federal common law.”
On Tuesday, James Anaya, the United Nations Special Rapporteur on the rights of indigenous people, weighed in with a statement.
“Veronica’s human rights as a child and as a member of the Cherokee Nation, and indigenous people, should be fully and adequately considered in the ongoing judicial and administrative proceedings that will determine her future upbringing,” Mr. Anaya said. “The individual and collective rights of all indigenous children, their families and indigenous people must be protected throughout the United States.”
The statement provoked a response from Lori Alvino McGill, a lawyer for the Capobiancos. She said that while Anaya is entitled to his opinion, any further court proceedings about Veronica’s custody are “governed by the laws of the United States, including the U.S. Constitution.”
“Under those laws, Matt and Melanie are Veronica’s parents, period–and she has a right to be returned to their care, custody and companionship,” says McGill. She notes that there have been court-ordered visitations occurring recently that have allowed Veronica time with the Capobiancos.
“Our legal system does not permit losing litigants to hop from state to state to relitigate cases that they lose, even when those cases involve the adoption of a small child,” McGill said.
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