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 active deployments.
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 for adoption.
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 thereafter.
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 adoption.
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 the child.
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"; these 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.
The co-authors are the executive directors of the Native American Rights Fund (NARF), the National Congress of American Indians (NCAI), and the National Indian Child Welfare Association (NICWA). The Tribal Supreme Court Project, a collaboration between NCAI and NARF, monitors litigation in which Native people have a significant stake and coordinates strategy among a network of over 250 tribal leaders, attorneys, and law professors.
John Echohawk, Executive Director, Native American Rights Fund (NARF); Jacqueline Pata, Executive Director, National Congress of American Indians (NCAI); and Terry Cross, Executive Director, National Indian Child Welfare Association (NICWA).
This op-ed also appears in Politico.