The Continuing Saga of Baby Veronica

It’s been several months since the Supreme Court decided Adoptive Couple vs. Baby Girl.   It’s a case I had written about a number of times over the years, though I have yet to actually discuss the Court’s opinion.  (It’s the “lost-it-over-summer” thing.)    When the Supreme Court opinion was issued, it probably seemed to many to mark the end of the case, but for some procedural follow-on in the lower courts.   But the case was not, in fact, over and indeed, it continues even now.

You can read the facts in almost any of the news stories about continuing proceedings.   And they can be very long and convoluted, as the case has a long history.   But for my purposes here today, it comes down to this:    There is a three year old girl named Veronica.   The South Carolina Supreme Court, following the opinion of the US Supreme Court, ruled that a couple from South Carolina (the Capobiancos) could complete their adoption of this child.   But she has been living in Oklahoma with her genetic father, Dunsten Brown, who also wants to raise her as his daughter, for roughly half her life.   (Brown is a member of the Cherokee Nation and so the case turns on the meaning and application of the Indian Child Welfare Act (ICWA) but I won’t be talking about that in this post.)

Post-Supreme Court the case has become a drama played out in the courts of Oklahoma (where Brown and Veronica live) and South Carolina (where the Capobiancos live.)   SC says that the Capobiancos get Veronica.  OK doesn’t seem to be so sure, though the governor just ordered Brown extradited.  The question of which state gets to decide is part of the problem here, although it seems to me that there is a lot of weight on the SC side of the scale.   (No one seemed to doubt SC’s right to decide during the Supreme Court litigation, did they?)

But as I have said, I don’t want to discuss the intricacies of the law at the moment.  For now I just want to talk about process.  This case has been in litigation for virtually all of Veronica’s life.   In some way, I suppose you could say that being the subject of litigation is the only reality she knows.  But as time has passed the litigation has become increasingly high-profile.   It’s covered several times a week now all over the web.   I don’t think anyone can say that this is good for her.  Though court filings are sealed, that just means there’s a great deal of speculation about what’s going on in those hearings.

And this is the classic problem with law, especially in cases where people struggle over the right to raise a child.  Each side is entitled to its position.  Each side is entitled to litigate–to take appeals and such like.  Each side has its own view of reality.   Courts are where it all gets sorted out and that can take a long time.   I wish they’d compromise.   At times there are indications that they have compromised.  Yet somehow the litigation drags on.

Surely what it brings to mind is the story of Solomon.   If one side gave up, wouldn’t that show that they cared deeply about the child?   That they would rather lose than destroy the child’s life?

It’s not that I think Veronica’s life is really destroyed here, by the way. Perhaps she has been sheltered from the litigation.  One can hope.   And perhaps things can work out in a way that allows her to become whole.   But you have to wonder whether litigation–adversary litigation–is the best way to settle things like this.  Is there a better way?

Maybe part of the problem is that we make parentage into an all-or-nothing thing.  Whoever wins this gets all the legal rights while the loser is a legal stranger.   Compromise is possible, of course–the winner can agree to allow the loser contact/visitation.   But there’s no concealing the winner/loser reality.   But is there a different way in a case like this?  Could the Capobiancos and Brown raise a child together–cooperating as coparents?  I have to say that the track record this far is hardly encouraging.

How long can this go on?  I’m not sure about that.  As I say, the OK courts ordered Brown extradited to SC, where he faces criminal charges of interfering with custody of a child.  (That’s because in SC he has no right to custody and he is keeping Veronica from seeing the people who do have the right to custody–the Capobiancos.)   There’s a hearing on the extradition in early October.   Of course, it could settle before then.  Meantime, Veronica is about to turn 4.


20 responses to “The Continuing Saga of Baby Veronica

  1. indeed sometimes the mature and loving thing to do is to accept defeat for the sake of the child. presumably both sides believe however, that they are acting in the child’s best interests by continuing. in which case, i understand brown’s position- first that she is living with him now, and second that she stands to lose her bio heritage by being transferred, a loss that she will be aware of unless she is lied to.
    But what possible rationale can the capobiancos give that they are acting in the child’s best interests?
    agreed that the law should be more flexible. open adoption or whatever compromise i9s reached should be enforceable in the courts.

  2. Dan in Tennessee

    To me this is now a basic rule of law issue. According to the South Carolina Supreme Court (now) and the United States Supreme Court, (although not stated as such), the Capobiancos should receive custody of this child. No doubt comments on this blog will center on the best interest of the child and how the child has been damaged, etc. At this point though law enforcement of both states must follow the mandates of the Federal and State Supreme Court . The case is over at this point.
    You’re right Julie that this case is no longer about ICWA or whether the child has been damaged or even what further damage will occur. It’s about a system of law which has a final arbiter . . . or whether the Court’s ruling can simply be brushed aside when one doesn’t like the result.

    • Dan – back in July 2011 the SC Family Court awarded custody to Dusten Brown, the C’s appealed that ruling and finally had to be ordered by the SC court to turn Veronica over to Dusten at the very end of 2011. They then appealed to SCOTUS who ruled on just a couple of questions and sent it back to the SC Supreme Court – they were not the final arbitrator of the adoption.

      The C’s didn’t abide by the courts ruling then because they had legal recourse available to appeal it.

      Which is why I see it as very hypocritical of the C’s to call foul now when there are specific federal and state issues to be ruled on, and, Dusten and the CN are using their legal recourses just like the C’s did. Kind of a “pot meet kettle”…

      Several issues including the obvious flaw in the original petition for adoption by the C’s of Veronica – filed at day 3 in SC which requires the child to be adopted be present in SC when the petition is filed – when in fact she was in OK. That petition is the petition that was approved recently – so how that aspect will play out is one question. Another issue is no best interests hearing was made at the time of the adoption – which is mandated under law in at least OK. Also at stake is Veronica is an Indian Child and as such there are other federal laws (ICWA) that come into play that weren’t addressed by the SCOTUS ruling – that only applied to Dusten using ICWA. And I am sure I am missing other issues as well.

      States are supposed to give full faith and credit to other states rulings – apparently they don’t always – Utah did not give that in John Wyatt’s case where Virginia had awarded him full custody of his daughter – they just ignored it as if it did not matter.

      Far too many unanswered questions need to be answered and litigated and quite likely could end up back with SCOTUS.

      • TAO: As I read the Supreme Court’s decision, ICWA doesn’t apply anymore to this case. I can’t understand how Dusten and the CN can keep holding this up. As I understand it, Dusten and the CN have to comply, that is to follow the mandates of the South Carolina Courts and the Oklahoma Court. You are right about what happened in Utah and Virginia. Wow Utah is a great example (or a bad example, depending on your point of view) of trampling fathers’ rights. What happened on that case in Utah would conceivably not happen in other states because other states (such as Tennessee, for example) which would require much greater due process for putative fathers. Utah cut him out without any kind of diligent search requirement or even a check of the putative father registry. I fear that there is a growing perception that all 50 states work like Utah (poorly). Only Utah works like Utah though. Your point about full faith and credit is well taken. And I therefore think it’s hypocritical of Dusten to rely on the South Carolina Court on the first trip up to the US Supremes (he was likely singing “R-E-S-P-E-C-T. Find out what it means to me.”)But now he wants to ignore South Carolina’s rulings.

        • Because Dusten has legal remedies available to him – just like the C’s had available remedies then…

          SCOTUS ruled that ICWA does not bar termination of fathers rights in cases like his. They did not grant the adoption – that is the distinction.

          Justice Sotomayor detailed out exactly what could hypothetically happen now.

          “Because I would affirm the South Carolina Supreme Court on the ground that § 1912 bars the termination of Birth Father’s parental rights, I would not reach the question of the applicability of the adoptive placement preferences of § 1915. I note, however, that the majority does not and cannot foreclose the possibility that on remand, Baby Girl’s paternal grandparents or other members of the Cherokee Nation may formally petition for adoption of Baby Girl. If these parties do so, and if on remand Birth Father’s parental rights are terminated so that an adoption becomes possible, they will then be entitled to consideration under the order of preference established in § 1915. The majority cannot rule prospectively that § 1915 would not apply to an adoption petition that has not yet been filed. Indeed, the statute applies “[i]n any adoptive placement of an Indian child under State law,” 25 U. S. C. § 1915(a) (emphasis added), and contains no temporal qualifications. It would indeed be an odd result for this Court, in the name of the child’s best interests, cf. ante, at 15, to purport to exclude from the proceedings possible custodians for Baby Girl, such as her paternal grandparents, who may have well-established relationships with her. ”

          Which is why I think SC finalized the adoption from the original petition and did not do a current best interests hearing, which may actually backfire on them due to the specifics of SC law. If the C’s had submitted a new petition the court may have had to hear other equally valid, if not more valid petitions from Veronica’s family. (my opinion without any qualifications to give it)

  3. Ideally there would be no need for adoption; a world without neglected or abused children where parents never died before their child was 18 and never skipped out or acted irresponsibly. Ideally everyone would have strong family networks to help raise their children in times of personal crisis. That world is impossible so there will always be children who need to be cared for and raised in the homes of strangers willing to accept the burden of parental duties. When an adoption is not necessary its not necessary. I think that adoptions can outlive their usefulness and that children should be able to return to their own families whenever their parents are capable of caring for them – they could stay in touch and have an open adoptive relationship with the adoptive family just as they could stay in touch and have an open relationship with their own family.

    In my experience reuniting families adopted people cling to stories that they were fought for by their parents or other family members. They cling to stories about their parents unwillingness to let them go but were forced to because of the social structure at the time. They resent attempts to sequester them from their relatives even when it is claimed to have been for their own good. They hold deep and seething resentment when the people caring for them turn down parents and relatives attemps at contact or custody. Just saying the love this kid will have for the adoptive family will be with baggage.

    Think of all the years she could have as a member of her own family vs a few without them. Why should she go back to these crazy people? Go adopt a kid that needs to be raised by someone because their family is unable.

    • I very much agree with this. The adoptive parents have not spent a significant amount of time with Baby Veronica. What is motivating them to continue this fight? There are many other kids that need to be adopted, why are they spending all this time and effort to adopt a child that is wanted by one of her parents? Are they keeping the fight alive out of spite? Principle? I have no idea.

      Undoubtedly, there is no love between them and Mr Brown. They are fighting tooth and nail to keep her away from her family and cultural history. This is unfortunate because she will inevitably end up in therapy because of that lost connection and for what? We still don’t know what is driving them.

      • Motivation is not hard to figure out here. They attached and bonded as the parents of the girl. They raised her from birth to about 2 years old and saw her as their daughter.

        Two families are in love with the little girl. One family will get their hearts broken and loose the child they have attached to as a daughter.

        “There are many other kids that need to be adopted,”

        I don’t understand this sort of statement. Think about your own kids. If your kid dies or disappears, you cannot simply substitute some other kid to make the pain disappear.

        There are all sorts of legal and ethical questions, but the motivation of all parties is clear. Two families are in love with the same child; neither family is willing to give her up because they are all bonded. No one wants to experience the pain of separation from the kid they all love as their child.

        • But people do have the legal right to be identified as the offspring of the individuals who caused them to exist as is evidenced by the federal requirements for information States collect and enter on birth certificates. Individuals also have a right to the care and support of both people named as parents on those certificates because they cause them to exist and need care in the first place. The whole organization of society hinges first upon people taking responsibility for the results of their own actions in this case reproductive action causing the existence of their offspring. We only have the right to be adopted if it is deemed impossible for us to be raised by our own parents or by our own family members, and then that right is contingent upon the availability of people who wish to adopt. Otherwise we have the right to State assisted care funded by the Federal government. I’m talking about laws in place that make sense and any actions or laws at odds with these logical laws is at odds with our right (California Code) to not have damage done to our personal relations. In this person’s case, her previous adoptive parents are doing damage to her personal relations and interfering with her first and foremost right to receive care and support from the individuals responsible for causing her to need care and support in the first place. The fact that they love her is lovely. They should love her enough not to steal away her rights to her identity and kinship and family. Her father owes it to her to do his job. It does not matter how late a parent is to their child’s life – it will always be their job to care for their children and anyone who interferes with their attempts is doing the minor a grave injustice that will not soon be forgotten.

          We only have the right in terms of our recorded identities and in terms of who we have a born right to depend upon to take care of us because they caused us to exist and need care in the first place

          • I’ve watched enough divorces to know that rationality rarely enters into fights over child custody.

            • Sad right? Think of how much worse i could be! Bio parents overall are the worst offenders of acting like their children are property to be possessed or given as gifts or sold; there would be no surrogacy or gamete donation if bio parents did not think they owned their own children. The adoptive parents in this instance are behaving badly and the father is just trying to do what he is suppose to do but over all the whole black white and grey market adoptive system exists because of bio parents thinking they own the right to their offspring rather than the obligation to them. And those who don’t have kids but want them are just desperate and keen to exploit that weakness in bio parent character.

    • your suggestion is a good one but its not practical. most people will not want to adopt if they may have to give the kid back. i have a dear friend who so longs for a child but is too old to adopt… she wont take a foster child though because she says she can’t handle the grief for when the child goes home.

      • You know maybe we as a society need to adjust our thinking when it comes to children whose families are in a state of crisis. It is inevitable that we will build bonds last a lifetime when we help raise a child. At the very least, if you are around long enough consistently enough, the child is not going to forget you. It’s up to you what they remember and take away from that experience. People would still adopt, not to become parents, but to provide a safe and loving place for a child whose family is not gone but is in crisis. The goal should really not be to get a child and make them our own because they do already exist as part of a family and I think it is probably best to reinforce their true identity and let them know that they can stay just who they are with the parents that they have and it would still be worth it to us to put our whole heart into raising them knowing that the goal would hopefully someday be that their absent parent could be healthy enough to participate in their life and make a meaningful contribution to them because they made them and they owe it to them and they are worth it. I am very optimistic that the kindness of human nature would still provide many loving people to adopt if the rules were changed. Those who were only in it to get a child that can be all theirs and their forever child would not be the kind of people that put the kid first.

  4. From what I understand, two lower Oklahoma courts ruled the South Carolina adoption decree should receive full faith & credit and the OK Supreme Court put in place a procedural stay while it decides whether to consider the case. The legal precedent could be pretty bad if OK SC rules against the adoption just because the US Supreme Court did specifically remand the case to South Carolina with the ruling that SC should re-decide the case.

  5. “But you have to wonder whether litigation–adversary litigation–is the best way to settle things like this. Is there a better way?”

    I would think adversary litigation would be the worst way possible to resolve custody disputes. And yet, so many custody disputes resolving children are resolved in this manner. Parents often can’t see, in their emotional distress, that less adversarial ways are possible to resolve the situation.

    On the legal question: I would think SC would be able to claim jurisdiction as the adoption was finalized in that state.

    • regarding adversary litigation- i think compromises are not enforceable in court. such as if one party receives parental status and the other receives visitation, it might be a good compromise but the courts won’t enforce it should they change their mind. that leaves the visitationer dependent on the legal parent’s mood.

  6. It would be a lot better IMO if we moved towards a more inclusive idea of family rather than the nuclear family where there is one dad or one mum – one ‘real’ parent, one ‘winner’. In so many families, people can be brought up by their aunts and uncles or grandparents alongside their cousins and they are all family. Clearly with all this conflict this is not going to work in this family but it could work in others.

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