Baby Veronica sits on Dusten Brown's lap. Veronica has been with her father for more than a year, but the adoptive parents still hope for her return. Photo Courtesy Washington Post, Jeremy Charles.
State Law vs ICWA: Baby Veronica
By Christina Rose
Native Sun News Associate Editor WASHINGTON - On Tuesday, the US Supreme Court will hear the case of Adoptive Couple v. Baby Veronica which has been at the center of an Indian Child Welfare Act debate since 2009. It is a classic case of “He said, She said,” according to Chrissi Ross Nimmo, Assistant Attorney General at Cherokee Nation. The basis of the case is that the State of South Carolina laws defining paternity are trumped by ICWA. The Supreme Court has been asked to decide if the state laws that say a father must be actively involved in the baby’s life should override the federal Indian Child Welfare Act. A recent telephonic press conference presented the opinions of American Academy of Adoption Attorneys. Mark Demeray, past president of the AAAA and adoption attorney in Seattle, called the case “tragic for all parties and especially the child, no matter what the outcome.” However, court records could show that the true tragedy might be the way the adoption agencies and attorneys neglected to follow ICWA from the start. Ross Nimmo, said, “It is no secret that the AAAA group and private adoption attorneys do not like the ICWA because ICWA has higher standards than some state laws. It makes it difficult for people who are paying customers of adoption attorneys. Usually those clients are non-Indians from middle class families trying to secure Indian infants.” The 1978 ICWA was developed to keep states from improperly removing Indian children from their home. Congress spent several years investigating the need for ICWA “to protect the best interests of Indian children and to promote the stability and security of Indian tribes and families.” An Amicus Brief filed by 18 family agencies including Casey Family Services insists that groups like the AAAA have taken the wrong position. These agencies believe that adoption “as a whole would be better served if all adoptions were held to ICWA’s standards,” and that ICWA’s rules are the “best practices in child welfare.” Yet Demeray is calling for the US Supreme Court to view the adoption of Baby Veronica through established state laws which say that unless an unwed father has participated in a financial, nurturing or consistent manner in the child’s life, he has no paternity rights. The group insists that through ICWA, Dusten Brown, the father of Baby Girl, has been given paternity rights that are contrary to state law. The Capobianco family, the adoptive family who hopes to regain custody of Baby Veronica, is using the argument that ICWA offers a preferential right for Indian parents or children. But the Casey Family Brief argues, “They got it exactly backwards” and “ICWA enforces the gold standard for child welfare decisions for all children. And to unravel its protections could cause significant harm.” Some court records show that there was suspicion that the adoption agencies purposely neglected to contact Dusten Brown or pursue information that would have had Baby Veronica returned to her father only four months after her birth. The mismanagement by the adoption agency is questioned throughout court records. Right after the pregnant mother, Christina Maldonado, severed her wedding engagement to Brown she contacted an Oklahoma adoption agency without telling Brown. She did not tell Brown when the baby was born and avoided telephone contact with Brown and his family. However, Maldonado did sign statements that she knew the baby was Native American. The agency contacted the Cherokee Nation of Oklahoma (CNO) but the information they supplied about Brown was the incorrect spelling of his name and the wrong birth date. The agency denied their intentions were based in “bad motives” and stated that Brown also “repeatedly misspelled his own name.” The evidence they supplied were checks from a bank that had misspelled Brown’s name. When the baby was born on September 15, 2009, the mother signed the adoption forms the next morning. Court records show that the forms signed by the Hispanic mother listed Baby Veronica’s ethnicity as ‘Hispanic’ instead of ‘Native American.’” Because of this misinformation and the inability to obtain correct information from the Cherokee Nation, the adoptive family received permission to take Baby Veronica across state lines from Oklahoma to South Carolina. Court documents show, “Had the birth father’s status as a member of the Cherokee Nation been known, neither the Cherokee Nation nor the Oklahoma agency would have consented to the removal of the child from Oklahoma.” The adoption agency made no attempts to reach out to the father other than to serve him papers four months after the baby was born, seeking the termination of his parental rights. Court records indicated that the adoption agency’s pre-placement form said “it was determined that naming him would be detrimental to the adoption.” In order to satisfy the ICWA paternity requirements, Dusten Brown took a DNA test and was found to be the biological father of the child. He was shown to be “a fit and caring father” through his relationship with his daughter from another marriage. Court records stated that even the birth mother of Baby Veronica said that Brown was a good father. “There is no evidence to suggest that he would be anything other than an excellent parent to this child,” court records read. “The birth father is a fit and proper person to have custody of his child.” The lawsuit filed on behalf of the adoptive family attempts to hold Dusten Brown to state standards because of his lack of involvement with the baby girl. Few if any briefs that support the adoptive family even mention that Brown said he tried to see the mother, who broke off their engagement months into the pregnancy, without giving any reason. Trial records state that Brown “was excited to learn of the pregnancy and urged the birth mother to move the wedding date forward so the child would be born during their marriage. In that way, she and the unborn child would have military health coverage during and after the pregnancy, the family could obtain base housing, and his military pay would increase.” While Maldonado, the baby’s mother, said in court that the father had not contacted her during the pregnancy, court records showed that some people did “not find birth mother’s testimony credible.” Other records showed, “Mother never informed Father that she intended to place the baby up for adoption. Father insists that if he known, he would never have considered relinquishing his rights.” During the pregnancy, Maldonando sent Brown a text message asking him if “he would rather pay child support or surrender parental rights.” Brown agreed to give up his parental rights, but he said he mistakenly thought Maldonando was seeking full custody of the baby and he was simply giving up custody as he had done with his first ex-wife. Brown said if he had understood what she was asking, he would never have given up his parental rights. “If I knew that the adoption was going on, I would have said no, I wanted to keep my rights. And I would have fought then. I would have started right then and there,” Brown said in court. Eventually, the court found that although the adoptive family kept the Baby Veronica for two years, they knew after four months that her father was seeking custody of his daughter and he was contesting the adoption. “They elected to pursue adoption over his objection,” court documents state. Attorney Demeray stated in the press conference, “But for ICWA, the father would not have had the ability to stop the adoption...he failed to step up in a timely fashion, and but for ICWA he could not have done that.” Demeray said the AAAA hopes the Supreme Court will establish who and how a father can claim parentage. “In Washington State, under ICWA law a father must be considered a parent under state law. In this case, the Supreme Court decision will define under clear rules when paternity is decided in federal law.” Professor Mary M. Beck, faculty of the University of Missouri Law School and a member of the American Academy of Adoption Attorneys, said in the press conference that “state laws provide for orderly adoptions of what fathers must do and help inform mothers what rights fathers have.” She said if the South Carolina decision upends “this orderly method” it will allow ICWA to supersede South Carolina law. “If ICWA creates a new classification of fathers, it has implications beyond Indians outside ICWA,” she said. Even though the court found Brown to be a fit parent and the biological father of the child, the brief filed by the Adoptive Parents v. Baby Girl implies that by approving Brown’s paternity, “Congress intended to confer special privileges on deadbeat dads, sperm donors, or rapists based solely on a biological link. Congress should not be presumed to have placed those men on equal footing with fully committed unwed fathers.” A Washington Post article quoted Mark Fiddler, attorney for the Capobiancos and tribal member of the Turtle Mountain Band of Chippewa, as saying, "The intent of the ICWA was good at the time, but I think some courts are making what's best for the tribe paramount, instead of what's best for the children. We need to take a step back and ask if that's what the law intended." Those thoughts were echoed by adoption organizations who filed an Amicus Brief on behalf of the Capobiancos, which read, “Congress intended for ICWA to protect Indian families by limiting the circumstances in which they could be broken up. Congress did not intend for ICWA to allow an unwed father with no parental rights under state law to block a non-Indians mother‘s voluntary adoptive placement of her newborn child, which would lead to the dissolution of the family Baby Girl has known since birth.” Nicole Adams, communications manager of the National ICWA, disagrees and points to the vast support offered to the Brown family. She said the number of the Amicus briefs filed for Brown show that, “It is not just Indian Country that has offered support.” Those who have written Amicus Briefs in Support of Brown and ICWA include 23 different states, The United States, 333 tribes, the ACLU, Adult Native American Adoptees, law professors, people and organizations in the field of psychology, both Native and non-native, who state that ICWA is good adoption process. “Former and current members of Congress have filed on our side,” Adams said. Adams said, “In response to the agencies saying that ICWA was not meant to be used like this, Congressmen told us they are filing a brief on behalf of the Brown family because they said, ‘We know what our intention was. We wrote it.’ (Contact Christina Rose at Christinarose.sd@gmail.com) Copyright permission by Native Sun News
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