On Tuesday the Supreme Court will hear
arguments in the case of Adoptive Couple v. Baby Girl. The facts of the case
are straightforward: A South Carolina couple is seeking to force Dusten
Brown, an Iraq war veteran and member of the Cherokee Tribe, to give his
daughter Veronica up for adoption. Brown, who is now raising Veronica at his
home in Oklahoma, has prevailed so far in every court that has considered
this matter, including after a full, four-day trial by the South Carolina
Family Court and in a decision by the South Carolina Supreme Court.
Poke beneath the basic facts, though, and you
will find the ugly underbelly of the American adoption business. All across
this country – but especially in states that are home to multiple Native
American Tribes – unethical adoption attorneys are purposely circumventing
the federal law that is meant to protect Native American children. Even worse
are the continuing attempts by some adoption lawyers to take advantage of
active duty service members in the process of being deployed to combat, or in
Brown’s case is a sad example of both of these
disturbing trends. At its very heart, this case is about a father’s deep
desire to raise his daughter, named Veronica. Veronica’s mother and Brown
were engaged when she was conceived, but her mother broke off the engagement
while Brown was serving in the Army and stationed at Fort Sill, Okla.
Unbeknownst to Brown, his fiancé began the process of placing her child up
In the final months of pregnancy, the mother
cut off all communication with Brown and worked closely with an agency and
attorney to place the child with a non-Indian couple from South Carolina, the
Capobiancos. Brown was not informed of Veronica’s birth on September 15,
2009. Instead, Veronica was placed with the Capobiancos three days after her
birth in Oklahoma, and they relocated her to South Carolina shortly
Four months later, the day before Brown’s scheduled
deployment to Iraq, the couple’s lawyer (who was also the lawyer for the
adoption agency) finally served Brown with notice of their intent to adopt
Veronica. The notice was served to Brown in the parking lot of a mall.
Immediately, Brown went to court to request a
stay of the adoption until after his deployment (which, because of his
military status, is provided for by federal law). He also began the legal
steps to establish paternity and gain custody. He was then deployed to Iraq.
Because the Capobiancos waited until just days before Brown was deployed, the
adoption hearing was not completed until he returned home.
At this hearing, the South Carolina Family
Court denied the Capobiancos’ petition to adopt and ordered Veronica’s
transfer to her father. The court found that federal Indian Child Welfare Act
(ICWA) applied in this case, that Brown had acknowledged and established
paternity, and that an exception to ICWA called the “Existing Indian Family
Exception” (EIFE) was inapplicable. Most decisively, it found that Brown had
not voluntarily consented to the termination of his parental rights or the
The Capobiancos appealed to the South Carolina
Court of Appeals to stay the transfer of custody, where they lost. They then
appealed to the South Carolina Supreme Court, which upheld the family court’s
decision. Last October, they asked the U.S. Supreme Court to review the case.
In early January, the U.S. Supreme Court accepted review.
The tragedy of this case is the failure of some
of the adoption lawyers involved in that process - failures that have caused
great heartache for all of the families involved. Had the adoption lawyers
done their jobs from the start, the child would never have left Oklahoma.
The adoption lawyers knew from the outset that
the father was Native American and that, once he learned of their plans, he
intended to fight them to be able to raise his daughter. The adoption lawyers
also knew from the start that ICWA would protect the rights of the father and
Nonetheless, the lawyers forged ahead, ignoring
the law, providing inaccurate information to Oklahoma authorities, and
removing the child from the Cherokee Nation prematurely.
Brown’s cause is supported in briefs filed with
the Supreme Court by U.S. Solicitor General Donald Verrilli on behalf of the
United States of America, 19 state attorneys general, current and former
members of Congress, and a wide array of other groups. Many of the briefs
highlight the findings of the South Carolina Family Court, which found that “the
birth father is a fit and proper person to have custody of his child” who
“has convinced [the Court] of his unwavering love for this child,” – findings
upheld by the South Carolina Supreme Court.
Unfortunately, though, Brown’s case is not
unique, and other fathers in his position – particularly those serving in the
military – are not able to battle the adoption system in the way he has. It
is time for the Congress to hold hearings and expose for all to see the
tactics of lawyers who are continuing to evade the federal law designed to
protect Native American families.
John Echohawk, Executive Director, Native
American Rights Fund; Jacqueline Pata, Executive Director, National Congress
of American Indians; and Terry Cross, Executive Director, National Indian
Child Welfare Association.