The South Carolina Courts Completely Messed Up the Baby Veronica Case

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July 18 2013 11:07 AM

Send Veronica Back

A truly terrible ruling in the Baby Girl custody case.

Veronica and her biological father Dusten Brown.
Veronica and Dusten Brown, her biological father, on April 11, 2013.

Photo by Jeremy Charles/Washington Post/Getty Images

How badly can the South Carolina courts screw up the life of one little girl—and how little can they seem to care? The latest ruling in the case Adoptive Couple v. Baby Girl prompts those questions because it is infuriatingly, obtusely uninterested in the best interests of 3½ year old Veronica, the girl whose life has been a tug of war between her would-be adoptive parents and her Cherokee birth father. 

Emily Bazelon Emily Bazelon

Emily Bazelon is a Slate senior editor and the Truman Capote Fellow at Yale Law School. She is the author of Sticks and Stones.

To recap the facts that you may remember if you’ve followed this case in Slate or on Radiolab, a South Carolina couple, Matt and Melanie Capobianco, tried to adopt Veronica at birth after supporting her birth mother through pregnancy. At that point, her birth father, Dusten Brown, had given up his parental rights (via text message). But when Brown found out that Veronica was being adopted, rather than raised by her birth mother, he sought to block the adoption under the Indian Child Welfare Act, which deliberately makes the adoption of Native American children difficult, to counter years in which state social workers abusively stripped parents of custody. Veronica was 4 months old when Brown first said he wanted to raise her himself. But by the time the case went to trial, she was 2. (He was serving in Iraq for about a year in between.) At that late date, the South Carolina courts ordered Veronica returned to her father, saying that was what ICWA demanded.

Last month, the U.S. Supreme Court said this ruling was mistaken. ICWA protects the rights of Native American parents to have “continued custody,” Justice Samuel Alito said for a majority of five; since Brown never had custody of Veronica to begin with, the law didn’t protect him. I thought that was the right call (or at least the better option among hard choices). Since “continued custody” is limited to absent birth fathers, it only covers a small slice of the cases addressed by ICWA. And in future cases, it gives birth fathers an incentive to step forward as early as possible, which is better for children, who then are less at risk of the legal limbo and abrupt shift of custody that Veronica endured.

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The Supreme Court’s ruling rightly returned the custody case to South Carolina. But I never imagined that the South Carolina courts would send Veronica back to the Capobiancos without a careful investigation of what is now in her best interests. When she was 2, it was wrong of the courts to take her from them. But now that she is 3½ and has lived with Brown for the last year and a half, it’s not at all clear that sending her back is best for her. If Brown is a good parent—which appears to be the case—most child development experts would probably counsel the opposite.

The court said it was merely following the Supreme Court’s orders: Since it’s now clear that Brown can be stripped of his parental rights, Alito’s opinion “cleared the way” for Veronica’s adoption to be finalized. “Because we can resolve the issues of law here, nothing would be accomplished by a de novo hearing in the Family Court, except further delay and heartache for all involved—especially Baby Girl,” the state justices write.

But that’s nuts. The whole point of such a hearing would be to determine what is good for Veronica. Which, amazingly, no court has ever done. This is a “terrible ruling,” U.C. Berkeley family law professor Joan Heifetz Hollinger emailed me. “The issues of Brown’s status under state law and of whether the proposed adoption is in the child's best interests (a finding required by state adoption law!!) remain on the table. … The majority of the South Carolina court treats this as if the clock stopped during appeals and can resume as if nothing had happened to child in [the] intervening two years!! This gives a VERY bad name to adoption proceedings and gives lots of support to claims that adoption is all about the adults and their competing ‘rights’ claims.”

Hollinger also points out, “It is shameful that the court did not at least say something about importance of transition and possibility of maintaining ties to the biological dad and his family.” Yes, that is inexplicable. I hope the Capobiancos will do this on their own, but the court should make clear how important to his daughter Brown remains. Especially with all the publicity surrounding this case, this should have been a teaching moment. It’s amazing how much attention one child can get from the legal system with so little feeling for her. She should be the person who matters most in this case. But somehow, it’s never been about her.

Update, Aug. 5, 2012: Since this article was published, law professor Joan Heifetz Hollinger has said that her statements were based on a preliminary understanding of the South Carolina Supreme Court’s decision and on what she now believes was incomplete information. She clarified that she has “no objection to the finalization of Baby Girl’s adoption by the Adoptive Couple under state law, which the South Carolina court determined was in Baby Girl’s best interest.”