Rock Hill attorney Dale Dove handles adoption cases every day. He watches birth mothers make heart-wrenching decisions to give their children better lives and adoptive parents glow with joy when they finally learn they’re going to have a child in their homes.
But he also sees when this process gets complicated and painful, like the case of one little girl that made it all the way to the U.S. Supreme Court.
And, as Dove put it, “There’s a lot of stories within the story.”
In 2009, a woman in Oklahoma became pregnant. According to her account, the father wanted nothing to do with the pregnancy or the baby after the mother refused his marriage proposal. He never came to a doctor’s appointment, never gave any money and never met the baby, a little girl born in September.
Under Oklahoma law, the father had waived his parental rights. Meanwhile, the mother had decided adoption was her best option and had selected a South Carolina couple, Matt and Melanie Capobianco, to raise her child.
The Capobiancos, from the Charleston area, were present at the birth and the baby girl lived with them from birth. Four months later, the baby’s biological father, Dusten Brown, who hadn’t participated in the baby’s life at all, objected to the adoption and filed a lawsuit for custody.
Just under two years later, when the girl was 27 months old, the S.C. Supreme Court ruled that the father had the right to take custody of the little girl. He arrived to take her to his home in Oklahoma, where she’s remained for the last 18 months while the case was appealed to the U.S. Supreme Court in the spring.
The U.S. Supreme Court sent the case back to the S.C. Supreme Court, which, on Wednesday, ruled that the girl was to be returned to the Capobiancos, who were selected by the birth mother four years ago.
Dove had been following the case through professional circles, specifically the American Academy of Adoption Attorneys, from the beginning. He had spoken with the girl’s adoptive grandparents, who live in York County. He became directly involved in the case just last month, representing the birth mother in the latest chapter in the S.C. Supreme Court.
Normally, he said, a case like this would appear absurd and the answer would be straightforward. The girl would never have been removed from the adoptive couple and the birth father wouldn’t have any rights or grounds for argument. But, Dove said, there’s a “technicality” Brown was able to pull as part of his lawsuit for custody: the Indian Child Welfare Act.
The act, or ICWA, a 1978 federal law designed to protect the cultural heritage of Native Americans, applies different standards to Native American children and parents. The law gives Native American tribes the right to intervene if a Native American child is going to be adopted by non-Native American parents.
The girl is 3/256 Cherokee, meaning three of her great-great-great-great-great-great grandparents on her birth father’s side were Cherokee. That’s enough, by the rules of the Cherokee nation, for ICWA to apply to this girl’s case.
That’s why, in what Dove called a “misinterpretation” of ICWA, the S.C. Supreme Court granted Brown custody and allowed the child to be taken away from her Charleston home.
And Dove said it was this move, as an adoption attorney, that made him feel like he was in the “twilight zone.”
“Yes, it’s about the child,” Dove said. “But it’s also about the birth mothers.”
The South Carolina court had ruled that ICWA, in this circumstance, trumped South Carolina state adoption law, overriding what Dove described as the birth mother’s right to make an “adoption plan” when the father wasn’t present and didn’t appear to want to help at all.
Now, nearly a month after the U.S. Supreme Court reversed South Carolina’s decision and sent the case back, and five days after the S.C. Supreme Court made a decision, it would appear that everything is settled. The state Supreme Court ordered the adoption to be finalized and custody returned to the Capobiancos.But Dove said the battle isn’t over yet.
Although the S.C. Supreme Court said the details of the transfer of custody should be handled by the family court and the state of South Carolina has jurisdiction, Dove said it remains to be seen how Brown and the state of Oklahoma will handle the transfer.
“What if the state of Oklahoma says, ‘We’re not giving this child up?’” Dove said.
And of course, there’s the matter of the emotional well-being of the little girl who has lived with Brown and his wife for a year and a half.
Dove said the experts he refers to in custody cases talk of a “secure attachment” or an intense psychological bond forged to a figure by a child. He said professionals agree that attachment is formed most definitively between the ages of 12 and 18 months.
The girl, who will be four in September, was taken from her adoptive parents at 27 months, about a year after the critical attachment formation period. And, for a year and a half, she’s been forming new attachments. Repeatedly breaking these attachments can be very damaging for a child, he said.
“The research shows that there are lifetime consequences,” Dove said. “Imagine the head game that’s going on.”
While he’s had custody, Brown has refused to allow the birth mother or the Capobiancos any contact with the child, according to Dove. Brown has said that the girl adjusted well to her new home and was living a happy life in Oklahoma.
In a statement on Wednesday, the Capobiancos said they were thrilled to have their daughter come home.
“We look forward to seeing Veronica’s smiling face in the coming days and will do everything in our power to make her homecoming as smooth as possible,” the statement said.
A South Carolina-based attorney for Brown, John S. Nichols, said in an email “we are shocked and saddened at this development,” according to the Associated Press. “There is no mention, or apparent consideration, in the majority decision of the child’s best interest, as the dissenters point out.”
Outside of the parties directly involved, Dove said this case has lasting consequences in the adoption community. The final ruling was promising, according to Dove, since the courts finally ruled that ICWA in this instance couldn’t trump state laws or the birth mother’s rights.
“This is a case that promotes the rights and choices of the birth mother who’s taking the lion’s share of the burden,” he said. “I am thrilled that they’ve decided it in a way that protects the adoption plans of birth mothers.”
But, he said, this entire situation has had a “chilling effect on every adoption” because the ICWA argument could be made in many other adoption cases, where it might have more leverage. Adoptive parents and birth mothers could follow every possible law and regulation regarding the legal adoption of a child all to have it come to nothing when a father, who had previously waived his rights and not participated in the child’s life, “changes his mind.”
“And then, out of left field, comes this Indian father, waving this trump card,” Dove said.
He said lawyers across the country are raising concerns because the standards for inclusion in tribes across the country can be so small and genealogies are so mixed, you never know when someone is going to claim Native American heritage.
“Literally, every adoption in the country, you’d need a DNA test,” said Dove, who currently has two other cases that involve ICWA, a law he called “frustrating.”