July 23, 2014

Okla. court lifts stay in Veronica case, giving Capobiancos chance to take her

However, Veronica and her immediate family are currently living on trust property adjacent to the Cherokee Nation’s tribal complex in Tahlequah, which means a court order from either the Cherokee Nation or a federal court may be needed to remove the girl.

 

TULSA, Okla. – The Oklahoma Supreme Court has lifted an emergency stay in the fight for Veronica Brown, potentially opening the door for a South Carolina couple to take custody of the girl while the appeals process plays out.

At 2:40 p.m. Monday, the decision was posted to a docket sheet on the Oklahoma Supreme Court Network, just hours after mediation efforts ended between Veronica’s father, Cherokee Nation citizen Dusten Brown, and Matt and Melanie Capobianco, a couple from James Island, S.C., who have been attempting to adopt his child for four years.

The failed mediation now means the case will go before the state’s Supreme Court, but apparently the Cherokee child might not be staying in Oklahoma while the appeals continue. The stay was initially issued on Aug. 30 after a Nowata County district court judge upheld a South Carolina adoption decree that awarded custody of the girl to the Capobiancos.

However, Veronica and her immediate family are currently living on trust property adjacent to the Cherokee Nation’s tribal complex in Tahlequah, which means a court order from either the Cherokee Nation or a federal court may be needed to remove the girl.           

All parties involved the case are still under a gag order. It is unknown when or if Veronica Brown will be handed over to the Capobiancos, as attorneys for both Cherokee Nation and Dusten Brown filed responses with the Oklahoma Supreme Court within an hour of the stay’s dissolution.

Thanks to a court-ordered seal, the responses’ contents, along with the details from the six days of negotiations, are not public information.  However, a copy of the Supreme Court decision was posted online late Monday afternoon and shows five of the nine judges ruling to dissolve the stay.

Two ruled against dissolving, one abstained and the ninth, Justice Tom Colbert, split his decision.

In her dissent, Justice Nona Gurich cited the lack of a recent best interest hearing in her hesitance to dissolve the stay. One of the primary arguments from Cherokee Nation and the Brown family, a best interest hearing in the case has not been conducted since Veronica rejoined her biological family almost two years ago.

“More importantly, South Carolina courts failed to hold any kind evidentiary hearing concerning the best interests of Baby Girl and the likelihood of psychological harm to the child resulting from a severance of the parent-child relationship,” she wrote. “Additionally, Father's parental rights were terminated without proper notice and an opportunity to be heard. Everything in the life of Baby Girl has changed since 2011, and therefore, I cannot join the majority's decision to dissolve the temporary stay and to deny original jurisdiction.

“Although this is a complicated case, we should accept our legal responsibility to follow established law in making a determination having such a profound impact on the life of this child.”

It is also unclear what, if any impact, Monday’s decision to dissolve the stay will have on a decision handed down earlier this summer by the Cherokee Nation District Court that awarded guardianship of Veronica to her stepmother, Robin Brown, and her paternal grandparents, Alice and Tommy Brown. That ruling was handed down just prior to a Charleston County, S.C., family court judge finalizing the adoption decree in the Palmetto State.

In a released statement, Cherokee Nation attorney general Todd Hembree made it clear that Monday’s decision would have to be filed with the tribe’s judiciary before the Cherokee Nation takes any action.

"This order, just like any other order from a foreign jurisdiction needs to be filed for domestication with the Cherokee Nation District Court," he said. "There is a conflicting Cherokee Nation order concerning a Cherokee Nation citizen on Cherokee Nation land. We are a sovereign nation with a valid and historic court system.

"As Attorney General, I will require that our court system be honored and respected. I took an oath when assuming this office to uphold the laws and constitution of the Cherokee Nation and the United States. Nowhere in that oath is it required that I defend the laws of South Carolina."

The four-year-old has been living with her father in Oklahoma after spending the first two years of her life with the Capobiancos. In addition to two South Carolina courts and the U.S. Supreme Court, the case has gone before judges in eight different Oklahoma courts.

Veronica and her father, Dusten Brown

COURTESY PHOTO

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