Wednesday, July 24, 2013

Did the S.C. Supreme Court get it right on Baby Veronica?

"Saving" Veronica

Posted by Sam Spence on Wed, Jul 24, 2013 at 3:59 PM

Father Dusten Brown with Veronica
  • Courtesy NCAI
  • Father Dusten Brown with Veronica
Adoptive couple Matt and Melanie Capobianco with Veronica
  • Provided
  • Adoptive couple Matt and Melanie Capobianco with Veronica

From the beginning, it's been hard to read (or write) about the story of Baby Veronica without using words like "heartbreaking," "stirring," "gut-wrenching." Living in Charleston, it's hard not to fall for a couple like Matt and Melanie Capobianco, who are as normal a family as you'll find. Matt is a Boeing tech and Melanie's a psychologist. If you lived on James Island, they could be your neighbor. It's easy to get swept up in the local narrative around Veronica as her case has wound its way through the courts over the past 18 months. But with their direct and concise order handed down last Wednesday and reinforced again today, did the South Carolina Supreme Court get it right?

Last month, when the U.S. Supreme Court decided the S.C. Supreme Court erred in its decision under the Indian Child Welfare Act (ICWA) that birth father Dusten Brown could rightfully claim custody of Veronica, the case was remanded back to the state to determine who got custody of the child. That set up two approaches from which South Carolina justices would have to choose. The first was to look at the case simply as a matter of law (without the possibility of the application of the ICWA). The second was to take into account the facts of the case, including intervening factors — the child's subsequent development, "best interest" — before determining final custody.

In the July 17 order, both majority and minority justices agreed that the case should come to a fast resolution to prevent, as the majority wrote, "further delay and heartache for all involved." The minority wrote similarly, with a critical addition, "keeping in mind that what is ultimately at stake is the welfare of a little girl."

The S.C. Supreme Court took option No. 1, forcing a hard decision in the emotionally-charged case. "It was going to be tough no matter what," says New Jersey attorney Donald Cofsky, president of the American Academy of Adoption Attorneys, which submitted an amicus brief supporting the Capobiancos' position at the Supreme Court. Cofsky says he believes that the South Carolina justices "did what they had to do under the law."

Native American groups, a few of which submitted amicus briefs in support of Brown's position, reacted strongly after Wednesday's ruling. Both Brown and the Cherokee Nation issued similar statements of "outrage" after the ruling was issued without, they contend, a formal consideration of what's in Veronica's best interest, with Brown calling Veronica "an Oklahoma child." (Not to be outdone, the P&C countered with a Friday editorial entitled, "Veronica, Lowcountry child.")

Slate senior editor and legal writer Emily Bazelon wrote that the ruling was "truly terrible." In an email between Bazelon and U.C. Berkeley's Joan Heifetz Hollinger, the family law prof said she believes the order "gives a VERY bad name to adoption proceedings" by not taking into account the events in the intervening months since she's left Charleston.

Cofsky counters, arguing that in similar circumstances, a prospective parent could attempt to "bootstrap their case using time to increase standing" in the eyes of the court. "Bad facts make bad law," says Cofsky, explaining that if the court had chosen to evaluate custody based on presumed or subjective facts of the case rather than the law — if they had taken option No. 2 — the order could have set a shaky precedent.

In a statement, Cofsky's group, a national group of attorneys working in adoption law, concluded, "This case developed into a very difficult situation where there were simply no winners." Even the S.C. Supreme Court conceded as much in July 2012, rendering its initial opinion "with a heavy heart."

The appeals may continue, but when Veronica returns to Charleston, she will come back "no longer an infant or toddler," as dissenting Justice Costa Pleicones wrote last week. Regardless of when the book is finally closed on Adoptive Couple v. Baby Girl, the "Save Veronica" saga will play itself out for years to come.

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