Baby Veronica: How Dusten Brown could prevail in battle over his daughter

Veronica smiles in a bathroom of the Cherokee Nation Jack Brown Center

 MIKE SIMONS / Tulsa World file

Perhaps there is a light at the end of this long tunnel for Dusten Brown and his daughter "Baby Veronica" (who will be four next Sunday) that would allow them to stay together as father and daughter. The legal trial has been so convoluted and involved so many courts that after the Supreme Court ruling in June against Brown, and the swift action of the South Carolina court in favor of the adoptive parents, it was hard to see how he could prevail, but as this case drags on, I'm having a change of heart.

Three factors give me hope:
While the Supreme Court ruled that Brown could not claim his daughter under the Indian Child Welfare Act, they did not actually rule that he could not challenge the adoption under some other legal grounds, which is apparently what he is doing now in Oklahoma. Because of gag orders and sealed records, it’s hard to follow the legal arguments and know exactly what is going on behind closed doors. Certainly the adoptive parents, Matt and Melanie Capobianco, look way more distressed than Dusten Brown from the photographs I've seen of all them them leaving the courthouse.

Lorraine

One argument Brown's lawyers are likely to make is rooted in South Carolina law that states unequivocally that a child must be “present within this State at the time the petition for adoption is filed, irrespective of place of birth.” The original adoption was filed in South Carolina on Sept. 18, 2009, three days after Veronica was born. Yet she was still in Oklahoma with the Capobiancos, and remained there “about seven days," according to the records. One source also notes that the adoption process didn’t follow other legal norms, in that Veronica was removed from Oklahoma without her father’s consent or knowledge. 

'BEST INTERESTS' COULD PREVAIL
Brown’s attorneys are also likely telling the courts that Veronica herself has a right to have her “best interest” considered before any final custody decision is made, and surely the bond she now has with her natural father, after two years, will be argued. Though it has no legal standing in this case currently, I find solace in the words of Justice Sonia Sotomayor, who noted in her dissenting opinion:

"The majority's hollow literalism distorts the statute and ignores Congress' purpose in order to rectify a perceived wrong that, while heartbreaking at the time, was a correct application of federal law and that in any case cannot be undone. Baby Girl has now resided with her father for 18 months. However difficult it must have been for her to leave Adoptive Couple's home when she was just over 2 years old, it will be equally devastating now if, at the age of 3½, [now a week away from 4] she is again removed from her home and sent to live halfway across the country. Such a fate is not foreordained, of course. But it can be said with certainty that the anguish this case has caused will only be compounded by today's decision."  

Hollow literalism. Don't you like that phrase? Justice Sotomayor also calls the majority opinion, written by Justice Samuel Alito, a "textually strained and illogical reading of the statute" in question, the Indian Child Welfare Act, which was the legal basis for the case reaching the Supreme Court.

While there have been cases of children returned to their natural parents--even at age eight (Anna Mae He*)--we know of none where a child was removed from a biological family and given to adoptive parents at age four. If anyone knows of any, please let us know.

'WITH GOD ON THEIR SIDE'
 And at least one tribal court expert, Jason Aamodt, assistant dean at Tulsa University College of Law, contends that the tribal court will more than likely trump South Carolina and Oklahoma state courts. The girl is now on Cherokee land, and it is hard to imagine that state or federal authorities will invade to grab the child. If that happens, we can expect one hell of a commotion that goes way beyond pictures of a crying child being handed to federal marshals. Brown's attorneys filed a second appeal in the Oklahoma State Court on Friday; there is also the Cherokee Tribal Court which might have a foothold in this case, and it's possible the case will end up in federal court again.

See description below

In the meantime, more support is building for Dusten Brown. Rallies have been held, many adoptive parents have posted blogs in favor of Brown retaining the right to raise his own daughter. But do I think the Capobiancos will ever give up until the very last court decides for Brown? No. The parents who wanted to claim Anna Mae He* as their own did not give up until the Supreme Court ruled, when she was eight years old. I have been unable to find the ages of the Capobiancos, who appear to be in the late 40s or 50s, or when they married, but they are another case of an aging couple using infertility to garner sympathy. From their own blog, Veronica's Story (actually it is more their story):

"Matt and Melanie had been married for several years and after unsuccessful attempts to start a family they came to the realization that adoption was their answer to finally becoming a mommy and daddy. They had actually hoped to one day adopt even if they could have a child of their own. God’s will was for them to begin their steps toward adoption in early 2009."

 It is bizarre how God is involved in so many adoptions, isn't it? He is practically running an adoption service for all those couples who waited too long to have children without his divine intervention. Then He willy-nilly started placing all those babies in the wrong mommy's tummy to satisfy the market for adoptable babies. What a guy! --lorraine
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SOURCES
Q&A on 'Baby Veronica' legal battles 
Veronica’s Story (Capobianco's blog)
Adoptive Couple v. Baby Girl, 133 S. Ct. 2552, 186 L. Ed. 2d 729 (2013) [2013 BL 167706]

FROM FMF
Baby Veronica: Brown released on bail for second time 
Why passions run hot in the Veronica Brown story  
Dusten Brown continues to fight for his daughter; the Capobiancos dig in deeper  
'Baby Veronica' adoption will go forward
 Supreme Court rules against Indian father, limits Indian Child Welfare Act

READING
Two Worlds: Lost Children of the Indian Adoption Projects "...an important contribution to American Indian history. Trace A. DeMeyer and Patricia Cotter-Busbee, the co-editors and adoptees, located other Native adult survivors of adoption and asked them to write a narrative. The adoptees share their unique experience of living in Two Worlds, surviving assimilation via adoption, opening sealed adoption records, and in most cases, a reunion with their tribal relatives. Indigenous identity and historical trauma takes on a whole new meaning in this adoption anthology. This anthology covers the history of Indian child removals in North America, the adoption projects, their impact on Indian Country and how it impacts the adoptee and their families."--Amazon

One Small Sacrifice: A Memoir 
"Award-winning Native American journalist Trace A. DeMeyer has published her updated memoir One Small Sacrifice: A Memoir (Lost Children of the Indian Adoption Projects), an exposé on generations of American Indian children adopted by non-Indian families. Known for her exceptional print interviews with famous Native Americans such as Leonard Peltier, John Trudell and Floyd Red Crow Westerman, DeMeyer started research on adoptees in 2004, which lead to this fact-filled biography that includes congressional testimony, evidence of Indian Adoption Projects and how the Indian Child Welfare Act came to exist. Her long journey to find and meet her father and other relatives offers the reader a glimpse into the struggle of an adoptee and how to never give up hope."--Amazon

Order by clicking on title or book jacket.

*In the case of Anna Mae He, a couple from China had a daughter born here; but under financial duress, they appealed to Mid-South Christian Services to place her temporarily with another family while they got their finances in order. It is not uncommon for Chinese couples to let the grandparents take care of the children while the parents work. A language barrier and cultural differences, as well as a juvenile court officer typing in a guardianship provision without informing either party, added to the legal quagmire.

No matter Jerry and Louise Baker of Tennessee agreed to initially, they soon wanted to curtail the visits with the girl's mother, known in the U.S. as Casey He. By the time the girl was two the matter was in the courts; a lower court initially granted the Bakers custody, but the Tennessee Supreme Court overturned that decision. However the Bakers appealed to the U. S. Supreme Court, which denied their petition in mid-2007, thus ending the legal battle. According to Wikipedia: "According to a report from USA Today dated February 21, 2007, Jerry Baker paid Anna Mae $5 for each question she answered, such as "Where do you want to grow up, United States or China?" and "What do you want your last name to be, Baker or He?" The USA Today article noted that she refused to answer the question about her last name. Juvenile Court Judge Curtis Person expressed displeasure that Anna Mae was exposed to this media coverage in the Bakers' home, and threatened to issue a gag order if it continued." Anything sound familiar here?

A Facebook page set up by the Bakers indicates Anne Mae, who went to China with her parents, visited the Baker family and their daughter, born about a year after Anna Mae, in the summer of 2011. Earlier reports indicated that Anna Mae's adjustment to living in China was difficult.