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The Fight for Baby Veronica, Part 2

“My office is working with a South Carolina attorney in the interstate placement of a baby to be born sometime in mid-September. The baby's mother believes she is part-Cherokee, and the baby's father is supposedly enrolled with the Cherokee Nation.

This is part 2 of a series about the custody battle for three-and-a-half-year-old Veronica, Adoptive Couple v. Baby Girl, heard by the U.S. Supreme Court on April 16. Also read: The Fight for Baby Veronica, Part 1.

The Devil's in the Details

August 21, 2009

My office is working with a South Carolina attorney in the interstate placement of a baby to be born sometime in mid-September. The baby's mother believes she is part-Cherokee, and the baby's father is supposedly enrolled with the Cherokee Nation.

...The birth father is: Dustin [sic] Dale Brown

(1/8 Cherokee, supposedly enrolled)

DOB:XX, XX, 1983 [sic]

Born and raised in Oklahoma,

Presently in the army at Ft. Sill, Oklahoma

...the birth mother chose [the Capobiancos] to adopt her baby and has been working with them for the past four to five months...and she believes the father has no objection...Could you let me know whether you would object to this adoption by a non-Indian family—and whether the birth mother, Christy, is eligible for a CDIB Card?” – Letter from Tulsa attorney Phyllis Zimmerman to Myra Reed, Cherokee Nation Indian Child Welfare Division

Dusten Brown was at his wit's end. His parents, Tommy and Alice Brown, who had also known Maldonado for years, were desperately worried and equally puzzled by her stonewalling and silence. So, in the summer of 2009, with a pregnant ex-fiancee refusing to speak or communicate with him in any way, he drove to her home in Bartlesville, Okla., in an attempt to see how she was doing and give her some money to help with the baby. But Maldonado, having already promised her unborn child to Matt and Melanie Capobianco of Charleston, S.C., refused to cooperate.

“She wouldn't even answer the door,” said Brown. “I could hear voices in the house and her car was there. I knew she was home, and she knew I was there. But I didn't want to make a big scene, so I left.”

In hindsight, Brown said that Maldonado's actions at that time were most likely a strategy to make it appear as though he had “abandoned her and the baby.” A charge which he flatly denies.

“That's absolutely not true,” said Brown. “I did not 'abandon' her and I would never pabandon my child. I tried everything I could to contact her. I texted her, I tried to call her, I even went to her house, I tried to give her money, my parents tried to contact her, they wanted to help her, but she made it clear that she didn't want to see me and she made it impossible for me to talk to her. Finally, I just let her have her space. But I had no idea that she was going to pull a stunt like [giving Veronica up for adoption].”

By that point in time, however, the wheels to place Veronica for adoption without his knowledge or consent were already in motion. Major decisions had already been made, papers had been signed, lots of money had exchanged hands—including a handsome $10,000 fee from the Capobiancos to Maldonado to help with her “expenses”—while attorneys for both the birth mother and the pre-adoptive couple had started the legal process. All of these activities were in violation of specific requirements of the Indian Child Welfare Act, not to mention completely ignoring the fact that Dusten Brown had no idea what was happening to his child, or that he might object and want to raise the child himself. It was a miscalculation with enormous consequences.

What is certainly clear, however, is that all of the parties involved for the plaintiffs, including the birth mother, the Capobiancos, the adoption agency and all of the counsel, were fully aware that Brown was “supposedly part-Cherokee,” and that being a member of a federally-recognized tribe matters a great deal in the U.S. adoption industry—hence the proactive letter from Zimmerman to the Cherokee Nation before Veronica was even born. Apparently, it mattered enough to Maldonado that, according to the letter to the tribe's ICWA office, she was also inquiring about securing her own Certificate of Degree of Indian Blood (CDIB) card, presumably in the hope that it would nullify Brown's potential enforcement of ICWA. Under federal law, it would not have made any difference.

In fact, according to tribal lawyers, had Maldonado been successful in her 11th hour attempt to seek tribal membership a month before Veronica's birth, it would have automatically guaranteed the intervention of the Cherokee Nation into the adoption proceedings. Had that been the outcome, perhaps this case might have been settled a long time ago, without the enormous amount of heartache and legal fees incurred by all the parties involved. But that didn't happen.

Facts Are Stubborn Things

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From the outset, the case of Adoptive Couple v. Baby Girl has been rife with errors: Errors in spelling, incorrect dates, bad judgment, and finally, errors in execution. Whether by prevaricated fabrication, purposeful obfuscation or the result of a simple incompetence, the crucial mistakes made in the very beginning and thereafter proved pivotal to the subsequent battle between the Capobiancos and Dusten Brown.

Exhibit A: According to the letter from Phyllis Zimmerman, not only was Brown's first name misspelled, but his birth date and birth year were also incorrect.

Why does this matter?

“We have over 310,000 tribal members,” said Chrissi Nimmo, assistant attorney general for the Cherokee Nation, who heads the ICWA division. “We have eight tribal members who are named 'Dustin Brown' who were all born in 1983. Dusten Brown, with an “e” was born in 1981. Ms. Zimmerman's letter was the only information presented to us and under state and federal law, we have to follow what's in the letter. And based on what she provided us, which was incorrect, we responded to that effect.”

September 3, 2009

Please be advised that the Indian Child Welfare Program has examined the tribal records and the above named child/children cannot be traced in our tribal records …

This determination is based on the above listed information exactly as provided by you. Any incorrect or omitted family documentation could invalidate this determination. (Emphasis added)” – Letter from Myra Reed, Cherokee Nation ICWA office.

It was that final sentence that set the stage for the legal showdown for Veronica. The aforementioned “Dustin Brown, 1983” did not exist.

But, Dusten Brown, born in 1981, did exist. And things were about to get ugly.

“The birth mother knew I was Cherokee, she knew I was a tribal member, she knew my birth date and she knew how to spell my name,” said Brown matter-of-factly. “Look, we've known each other since we were 16. We were engaged. She absolutely knew all of my vital information. And she gave [the attorney and the tribe] the wrong information [hoping to keep the adoption secret].”

On January 6, 2010, four months after Veronica's birth, Brown received notice to terminate his parental rights from a process service in Lawton, Okla. Brown was now aware that he had a daughter, that she had been adopted without his knowledge or consent, and that she was living with a pre-adoptive placement couple in South Carolina. To add insult to injury, Brown was never even notified when the girl was born.

Neither did he approve, he said, nor would he have ever given his daughter up for adoption. Finally, he said, it became clear why Maldonado had kept quiet and had refused to see or talk to him during her pregnancy. According to court testimony, Maldonado had planned to give her child up to the Capobiancos for at least six months before Veronica's birth.

Devastated and angry, Brown immediately drove back to Ft. Sill and consulted the Judge Advocate General, who helped secure legal representation in both Bartlesville and South Carolina. Shortly thereafter, a Stay of Proceedings, provided for under the Servicemembers Civil Relief Act, was executed by his legal team and granted by a family court judge in South Carolina until Brown returned from his deployment in Iraq. Soon after, Brown was advised of his rights under the Indian Child Welfare Act and his attorneys contacted the tribe again. This time, he was verified as a tribal member by the tribe's enrollment office.

On March 30, 2010, the Cherokee Nation, per the previous caveat regarding “incorrect or omitted family documentation” in the tribe's response to Zimmerman's letter, reversed its position and filed a Notice of Intervention in Adoptive Couple v. Baby M, asserting its sovereign right “to Intervene at any point in a state court proceeding, termination of parental rights or adoption to an Indian child so that it may exercise all its rights...”

Meanwhile, the Capobianco's attorney, Raymond Godwin, filed suit against Brown in South Carolina Family Court for them to retain custody of the baby girl who had come to be known as Veronica. In his voluminously worded amended complaint, Godwin told the court that the plaintiffs had “received assurance from the Cherokee Nation that... the child would not be considered an Indian.” In fact, not only did the tribe not “assure” the plaintiffs that Veronica would not be considered an Indian, they made sure to include the admonition that they had every right to intervene should the information change.

Additionally, it outlines the following: That the birth mother had received no assistance from the father during the six months proceeding placement; that the plaintiffs did not give any compensation to Maldonado; and the piece de resistance: “...the Birth Father of the minor child has no standing to contest this adoption.”

None of which is completely true. The Capobianco's complaint blindly ignores the following facts: That the Indian Child Welfare Act is applicable state and federal law and that Dusten and Veronica Brown are both entitled to protection under the law; that the Capobiancos did, in fact, give $10,000 given to Maldonado, in addition to her birth expenses; that Dusten Brown, did try to contact Maldonado, but she had willfully cut him off because she had already begun the adoption process without his knowledge or consent, thereby making it impossible for him to be involved with his child; and finally, as the biological father of Veronica, Dusten Brown, has every right to contest her adoption under state and federal law.

Next Week: The South Carolina Supreme Court Makes its Decision