Yesterday, I blogged about the South Carolina case of Matt and Melanie Capobianco’s custody war against birth father, Dusten Brown. The case has garnered mainstream press attention because the birth father is Native American. Brown’s attorneys used the Indian Child Welfare Act in their fight to secure custody of his daughter who was adopted by the Capobiancos.
My post resulted in 21 thought-provoking, fact laden comments that prove the case should not have been fought on the basis of Brown being Cherokee, but on the fact that he fought for his child from the start. Press accounts make it sound as if he stepped into the child’s life when she was one or two-years old. This is not the case.
So with tail between my linguistic legs, I apologize for the tone of yesterday’s post. For while it never suggests that the child is better off adopted, it does have a tone that could be taken to support the adoption of kids that do not need adopting. I read several mainstream reports on the case, but failed to dig deeper before tip-tapping my opinion onto the screen.
I still don’t believe in a law that suggests children must be placed with their ‘own kind’. A policy like this would leave more kids in the social service system than ever before. However, in this case, it is Brown’s status as biological father and not as Cherokee that gives him the right to raise his child.
1. “He signed his rights away.”
“It is undisputed that the only consent document Father ever signed was a one-page ‘Acceptance of Service’ stating he was not contesting the adoption, which was purportedly presented for Father’s signature as a prerequisite to the service of a summons and complaint. Thus, Appellants did not follow the clear procedural directives of section 1913(a) in obtaining Father’s consent. Moreover, even if this ‘consent’ was valid under the statute, then Father’s subsequent legal campaign to obtain custody of Baby Girl has rendered any such consent withdrawn. Therefore, neither Father’s signature on the ‘Acceptance of Service’ document, nor his stated intentions to relinquish his rights, were effectual forms of voluntary consent under the ICWA.” – South Carolina Supreme Court There is a legal way to “sign away rights” for good reason, Dusten never came close to any legal relinquishment of parental rights.
2. “He texted his rights away”
In no state in the country can a father relinquish parental rights by text message. These text messages WERE NOT EVIDENCE at trial because the attorney for the Adoptive Couple would not produce the phone that showed Birth Mother’s messages to father, instead they attempted to introduce photocopies, even though the cell phone was allegedly in a safe at the office of the Guardian Ad Litem’s attorney. The Family Court did not consider these text messages as evidence.
3. “He abandoned his daughter”
“All attempts to contact Maldonado by Brown and his family members were refused by Maldonado. Shortly after the child’s birth, Brown’s family members purchased some items for the child and attempted to deliver them to Maldonado, but these were rejected. It was clear that Maldonado wanted to have Brown completely and permanently removed from her life and placing the child for adoption without his knowledge or consent would further this goal.” – Family Court “Father testified he asked friends and family if they had seen Mother because she would not reply to his text messages. His mother testified she attempted to contact Mother on several occasions and once left Mother a voice message before Baby Girl’s birth to tell Mother she had money and some gifts for the baby, including items she hand-knitted, but Mother never returned her telephone calls. Mother testified that none of Father’s family members contacted her regarding gifts for Baby Girl.” – Family Court The Family Court repeatedly stated that it did “not find birth mother’s testimony credible.” – Family Court Bench Ruling, United States Supreme Court Brief
4. “It is in Veronica’s best interest to be adopted”
The only findings based on evidence of Veronica’s best interests found that she should be with her father.
“Brown is the father of another daughter. The undisputed testimony is that he is a loving and devoted father. Even Maldonado herself testified that he was a good father. There is no evidence to suggest that he would be anything other than an excellent parent to this child. . . . Brown has convinced me of his unwavering love for this child.” – Family Court
“The family court order stated, ‘[w]hen parental rights and the best interests of the child are in conflict, the best interests of the child must prevail. However, in this case, I find no conflict between the two.’ Likewise, we cannot say that Baby Girl’s best interests are not served by the grant of custody to Father, as Appellants have not presented evidence that Baby Girl would not be safe, loved, and cared for if raised by Father and his family.” South Carolina Supreme Court
“Plainly, the family court determined that there was no conflict between Father’s best interests and Baby Girl’s best interests.” – South Carolina Supreme Court
5. “He’s not really ‘Indian’”
Dusten Brown has been a registered citizen of the Cherokee Nation since he was a child. Further, the South Carolina Supreme Court found true cultural ties to the Cherokee Nation:
“The Record establishes that Father’s family has a deeply embedded relationship with the Cherokee Nation. For example, not only does the Record indicate that Father and his family are proud of their heritage and membership in the Wolf Clan, the home study performed on Father’s parents states the following:
[Father’s father] is Cherokee Indian. He grew up knowing he was Cherokee and being proud of who he was. [Father’s parents] . . . prepare the following traditional foods in their home: grape dumplings, buckskin bread, Indian cornbread, Indian tacos, wild onions, fry bread, polk salad and deer meat. [Father’s mother] state[d] she cooks these foods in her home on a regular basis and all of her children have eaten these items.
[Father’s parents] attend the Cherokee Holiday in Tahlequah, Oklahoma[,] when they can and do participate in eating traditional foods, viewing the arts and crafts and watching the traditional games. [Father’s father] participates in voting in the Cherokee elections[,] . . . . took part in learning about the Cherokee culture when his children were in high school by learning to make Indian crafts and learning to play the drum[, and] . . . . is sometimes seen at the Nowata Indian Health Clinic but receives the majority of his health care from the Veterans hospital. He claims his family is from the Wolf Clan, and he has been to, as well as participated, in stomp dances.
[H]is family had Indian land which was located in Pryor, Oklahoma and Cayuga, Oklahoma. He claims to have very traditional ties with his extended family and considers geneology [sic] a hobby by researching his Cherokee culture. [Father’s parents] have many Native American items in their home. Decorative Native American pieces are scattered throughout their home in nearly every room.
Thus, the Record demonstrates that Father and his family are well-positioned to introduce Baby Girl to her Indian heritage.”
6. “He just wants her for money.”
As all Cherokee Nation citizens know, we don’t get any money for “being Cherokee” or for having “Cherokee kids.” The only people who have made money in this case are the adoption agencies and attorneys.
7. “Cherokee Nation paid Dusten’s legal expenses”
Cherokee Nation has never spent a single a dime on attorney fees for Dusten Brown. He and his family used every extra dollar they had to pay for attorneys and after that was exhausted, Dusten’s amazing attorneys donated their time because they believed in him and believed that Veronica belonged with her father.
8. “We didn’t know Veronica was Cherokee.”
“Mother testified that she knew “from the beginning” that Father was a registered citizen of the Cherokee Nation, and that she deemed this information “important” throughout the adoption process. Further, she testified she knew that if the Cherokee Nation were alerted to Baby Girl’s status as an Indian child, “some things were going to come into effect, but [she] wasn’t for [sic] sure what.” Mother reported Father’s Indian heritage on the Nightlight Agency’s adoption form and testified she made Father’s Indian heritage known to Appellants and every agency involved in the adoption. 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.”
“Adoptive Mother testified that, because they hired an attorney to specifically inquire about the baby’s Cherokee Indian status, ‘when she was born, we were under the impression that she was not Cherokee.’” But, “Adoptive Mother testified that the Nightlight Agency’s pre-placement report was ‘probably . . . something I read and didn’t think twice about it.’”
9. “The Guardian Ad Litem supports the Adoption”
The Family Court appointed a guardian ad litem (“GAL”) who has filed a brief in this Court that purports to be on behalf of Baby Girl and asserts that Baby Girl’s interests would be best served by awarding custody to petitioners. In fact, the GAL is not a neutral party. Although appointed by the Family Court, that court noted that the GAL and her attorney both “were unilaterally selected by [petitioners’] counsel”; the GAL had a continuing business relationship with petitioners’ attorney, with whom she had worked frequently in cases in 2009.
In this case, although the GAL had performed a comprehensive home study of petitioners, she resisted repeated requests from Father’s attorney to conduct a home study of Father. When the GAL finally did conduct such a study, well over a year after her appointment and some five months after counsel’s request, she informed Father and his family that “she knew the adoptive couple prior to the child being placed in their home” and “had worked with them before the child had been placed”; that petitioners were a well-educated couple with a beautiful home, could afford to send Baby Girl to any private school that they chose and, when she was older, to any college she wanted; and that there was nothing that Baby Girl needed that petitioners could not buy for her.
The GAL therefore told Father’s family that they “really need[ed] to get down on [their] knees and pray to God that [they] can make the right decision for this baby” (id. at 148), and they “needed to talk to God and pray about taking the child from the only family that she has known.” At trial, Father stated that the GAL treated him and his family as “a bunch of * * * rednecks that can’t * * * afford anything, that we’re not able to provide this child with proper education, schooling * * *. Pretty much that we weren’t fit to love this child and raise her.”
The GAL’s initial report did not note Baby Girl’s Native American heritage because the GAL thought that was “not something * * * the courts need to take into consideration.” As for the GAL’s view of Native American culture, she stated that the advantages of having Native American heritage “include[ed] free lunches and free medical care and that they did have their little get togethers and their little dances.” Given the GAL’s obvious bias, respondents initially sought her removal.
But rather than delay the proceedings, respondents ultimately withdrew this motion on the understanding that the Family Court would not consider either the GAL’s conclusion regarding Baby Girl’s best interests or the GAL’s custody recommendation. See Pet. Indeed, South Carolina law precludes a guardian ad litem in a private adoption from providing a custody recommendation unless one is requested by the court; no such request was made here. – United States Supreme Court Brief by Father
Blessings for the truth to be told and the power to admit when we are mistaken,