This case is a perfect illustration of how a father’s rights may be mortally compromised during adoption proceedings by the mother.
Justice Samuel Alito, writing for the court’s majority, said the federal law didn’t apply in this case because the biological father never had custody of the child and abandoned her before birth. Alito also said the law doesn’t stop non-Native Americans from adopting the child when no other eligible candidates stepped forward.
The law “doesn’t apply in cases where the Indian parent never had custody of the Indian child,” said Alito, who was joined in his opinion by Chief Justice John Roberts, and Justices Anthony Kennedy, Clarence Thomas and Stephen Breyer.
Sounds pretty straightforward, doesn’t it? The father never had custody and ‘abandoned’ her before birth.
But let’s read a little further in the article.
Dusten Brown, a member of the Cherokee Nation, invoked the federal law to stop the adoption arranged by the girl’s non-Indian mother when she was pregnant and the Charleston, S.C.-area couple, Matt and Melanie Capobianco. The couple was present at Veronica’s birth in Oklahoma. Brown had never met his daughter and, after the mother rebuffed his marriage proposal, played no role during the pregnancy and paid no child support after Veronica was born.
Now that’s a little bit different story. He didn’t abandon his daughter; the adoption was arranged before she was even born.
Looking through the decision (pdf) handed down by the South Carolina Supreme Court is even more revealing. The mother, Christine Maldonado and Dusten Brown had an on again off again relationship. They were engaged in December 2008 and Maldonado became pregnant in January 2009. In May, Maldonado broke off the engagement via text message and refused to answer phone calls or texts from Brown. In June, Maldonado sent a text message offering Brown a choice, pay support or relinquish parental rights. Brown was stationed 4 hours away, and was about to deploy to Iraq. He testified that it was his understanding that he was agreeing to give Maldonado full custody, and not terminating his right to be his daughter’s father, a process which, by the way, cannot be done over a text message.
Maldonado never informed him that she was planning to give the baby up for adoption, and here is where it gets interesting. Since Brown is a registered member of the Cherokee nation, there were restrictions on adoption that would apply, and Maldonado testified that she was aware of those restrictions. From the opinion:
However, it appears that there were some efforts to conceal his Indian status. In fact, the pre-placement form reflects Mother’s reluctance to share this information:
Initially the birth mother did not wish to identify the father, said she wanted to keep things low-key as possible for the [Appellants], because he’s registered in the Cherokee tribe. It was determined that naming him would be detrimental to the adoption.
It’s pretty clear that Maldonado was making an effort to conceal the adoption from Brown. The opinion goes on to state that when adoption attorneys tried to verify Brown’s status with the Cherokee Nation, they misspelled his name and gave an incorrect birth date. The opinion does not make clear where the errors originated, only that there was no attempt to contact Brown directly.
When the baby was born in September 2009, Maldonado incorrectly filled out the forms that allowed the baby to be removed from the state, listing her as ‘Hispanic’ rather than ‘American Indian.’ This allowed the adoptive parents to take the infant to South Carolina where they filed the adoption paperwork. However, they did not serve Brown with the court papers for four months, waiting until January 2010, when he was days away from deploying to Iraq.
Are we starting to sense a trend here? It seems as if each party involved in this adoption, Maldonado, her attorneys, the adoption agency, the adoptive parents, and their attorneys all worked to keep Brown from knowing anything about the adoption until it was too late. Brown was served with papers and signed them, believing he was giving full custody to Maldonado, before realizing he was consenting to an adoption decree. He immediately contacted a JAG lawyer and requested a stay of adoption from South Carolina and filed a custody suit for his daughter. In November of 2011, after almost 2 years of legal wrangling, Brown won his case in South Carolina and was granted full custody of his daughter.
The adoptive parents did not take the decision gracefully. Rather than transfer custody in private, in deference to the little girl at the heart of the struggle, they and/or their legal team, created a media circus, turning what should have been a private, low key event into a near riot. Brown and his daughter were forced to hide in his lawyer’s office for hours after the transfer, waiting for the public and the press to leave.
As I wrote earlier, it is fairly clear to me that there was a concerted effort to keep Brown from knowing that his daughter was being given up for adoption, and that the effort was successful to such an extent that the Supreme Court has now vacated the original decision and sent the matter back to the South Carolina Court. This doesn’t mean that the adoptive parents have won. Brown may keep custody, or even if his parental rights are terminated, his parents can file for custody under the Indian Child Welfare Act since the little girl is now a registered member of the Cherokee Nation.
But my point is that, based on his behavior once he was notified about the adoption, it seems obvious that Dusten Brown would never have consented to the process had he been properly notified. Since that day in January, 2009, he has done nothing but fight for his child, which leads me to believe he would have behaved the same way months earlier had he been informed. What really bothers me is that if he weren’t an Indian, this case never would have gotten this far. His daughter would be being raised by a couple in South Carolina and he would never have any contact with her again. The majority of men in his position aren’t so lucky to have federal protection of their familial rights.
Even so, now Brown faces more legal battles to try and keep his daughter, even though, as Justice Scalia wrote in his dissent: “This father wants to raise his daughter, and the statute amply protects his right to do so. There is no reason in law or policy to dilute that protection.”