Using the authority that the Supreme Court gave it three weeks ago, South Carolina’s Supreme Court on Wednesday moved to put an end to a deeply emotional dispute over the custody of a child by ordering that she become a part of the family that fought to have her returned after eighteen months living with her father, a Cherokee Indian. In a three-to-two decision, the state court sent the case back to a family court with instructions to move swiftly to finalize the rights of the “adoptive couple” to the child known as “Baby Veronica.” She will be four on September 15.
Thus, the child will live with a non-Indian couple, Matt and Melanie Capobianco, who live near Charleston. Veronica lived with them after her birth mother gave up the child. Then, however, the South Carolina Supreme Court ruled that the birth father, a member of the Cherokee Nation in Oklahoma, had a right to the child under federal Indian child welfare law. The U.S. Supreme Court had decided on June 25 that the federal law did not protect the father from having the child taken away from him and adopted by someone else.
The birth mother had told the state court that she would nullify her consent to the child’s adoption if Veronica were not to live with the Capobiancos. Veronica’s father is Dusten Brown. When the case returned from the Supreme Court to state court, he sought to assert his parental rights to raise her. The state court ruled that, under South Carolina law, he had no legal right to withhold consent to the adoption, and thus only the birth mother’s consent was necessary.
It also said that the Justices’ five-to-four ruling last month had settled all of the federal law issues, against the father’s desire to continue as the parent.
Although all five members of the state’s highest court agreed that the case should be returned to family court, only the three justices in the majority voted to direct that custody be awarded to the Capobiancos.
Turning aside all of the legal arguments the birth father had made, the opinion said: “Because we can resolve the issues of law here, nothing would be accomplished” by sending the case to family court for a new hearing “except further delay and heartache for all involved — especially Baby Girl.” (Throughout the legal proceedings, including those in the U.S. Supreme Court, the names of the adoptive parents, the birth parents, and the child were not used in formal legal papers.)
What is now to happen in family court, the majority declared, is the issuance of an order giving the Capobiancos a final right of adoption. With that order, the child’s custody is to go to that couple, it added. If any new legal motions are made, the court added, those are to be dealt with promptly. If anyone were to seek rehearing of the new ruling, that must be filed within five days, it said.
“We think the [U.S.] Supreme Court plainly contemplated an expeditious resolution of this case, and we believe the facts of this case require it,” the opinion said. “There is absolutely no need to compound any suffering that Baby Girl may experience through continued litigation. As it stands, Adoptive Couple is the only party who has a petition pending for the adoption of Baby Girl, and thus, theirs is is the only application that should be considered at this stage.”
The ruling had the full support of Chief Justice Jean Hoefer Toal and Justices John W. Kittredge and Kaye G. Hearn. The two justices who would have left the final decision about adoption to the family court were Costa M. Pleicones and Donald W. Beatty. Those two justices protested that the majority’s order of immediate transfer of Baby Veronica to the Capobiancos had been done “without regard to whether such an abrupt transfer would be in the child’s best interest.”
Given “all that has happened in her short life,” those two justices said, the family court should be allowed to take the time to sort out what might be best for the little girl.
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