CN files petition for Adoptive v. Baby Girl rehearing

BY STAFF REPORTS
07/23/2013 08:20 AM
Main Cherokee Phoenix
Cherokee Nation citizens Dusten and Veronica Brown say goodbye to each other early in the morning of July 22 at the Tulsa (Okla.) International Airport before he departs for mandatory Army National Guard training. Later that day, the CN filed a petition for a rehearing in the case of Adoptive Couple v. Baby Girl in the South Carolina Supreme Court. The court on July 17 terminated Dusten’s parental rights of Veronica and ordered her transfer to a South Carolina couple. COURTESY PHOTO
TAHLEQUAH, Okla. – Cherokee Nation officials on July 22 filed a petition asking the South Carolina Supreme Court to rehear the case of Adoptive Couple v. Baby Girl and to reconsider its previous order that terminated CN citizen Dusten Brown’s parental rights of his 3-year-old daughter Veronica.

Without a hearing, the South Carolina Supreme Court on July 17 ordered Brown’s parental rights terminated and for Veronica to be transferred to a South Carolina couple trying to adopt her.

Brown, an Iraq combat veteran and active member of the Army National Guard, has had custody of his nearly 4-year-old biological daughter since 2011.

“It is very troubling that the South Carolina Supreme Court would move to terminate the parental rights of a man who has proven to be nothing but a fit and loving father, without even holding a hearing to determine what is in his own child’s best interests,” Principal Chief Bill John Baker said. “What is best for Veronica has not even been considered by the court. We pray the South Carolina Supreme Court grants our request for a due process hearing to determine what is in this child’s best interests.”

The tribe’s petition was based on that the court was unaware of facts informing its determination of jurisdiction and that it overlooked Veronica’s best interests.

On July 17, a CN District Court judge entered a temporary guardianship order that grants joint legal custody of Veronica to her stepmother, paternal grandfather and paternal grandmother. The order was necessary because of Brown’s mandatory National Guard training, states a CN Communications press release.

The temporary guardianship order was granted hours before the South Carolina Supreme Court order remanding the case to a family court to terminate Brown’s parental rights.

“Dusten Brown is an Iraq combat veteran who has fought as tirelessly for his child as he did for our country. That fight began the day he learned of the birth mother’s plans to place his child for adoption and continues today. Since regaining custody, he has created a loving, safe and nurturing environment for Veronica,” CN Assistant Attorney General Chrissi Ross-Nimmo said. “This temporary guardianship order is just another step Dusten has taken to ensure his daughter is always well cared for should something happen to him as he is serving his country during this mandatory military training assignment.”

CN officials said the South Carolina Supreme Court must consider the temporary guardianship order before it makes a final custody determination. Furthermore, CN officials assert that the legal custody of Veronica by her paternal grandfather prohibits the finalization of the adoption without further proceedings.

Under the federal Indian Child Welfare Act, an “Indian custodian” is provided many of the same protections afforded to a “parent.” ICWA defines “Indian custodian” as “any Indian person who has legal custody of an Indian child under tribal law or custom . . .”

CN officials said Veronica’s paternal grandfather is a CN citizen and has joint legal custody of Veronica under tribal law and because he is an “Indian custodian” he’s entitled to ICWA protections.

According to the ICWA, the Indian custodian “has the right to ‘intervene at any point in the proceeding,’ the right to petition for transfer to tribal court, the right to notice and to request an additional 20 days before any hearing for termination of parental rights and the right to counsel.”

CN officials also argue that because the South Carolina Supreme Court was unaware of the Nation’s guardianship order at the time it issued its own order, and since the CN District Court legally exercised jurisdiction over Veronica, under the ICWA the South Carolina Supreme Court “shall give full faith and credit to the . . . judicial proceedings of any Indian tribe applicable to Indian child custody proceedings to the same extent that such entities give full faith and credit to the . . . judicial proceedings of any other entity.”

CN officials said the South Carolina Supreme Court is required by federal law to give orders from the CN District Court the same consideration it would have given to an order from an Oklahoma court.

Lastly, CN officials said the South Carolina Supreme Court overlooked Veronica’s best interests by not providing a new hearing on her best interests. CN officials noted that the South Carolina Supreme Court found Veronica’s best interests were with her birth father more than a year and a half ago when it ruled in Brown’s favor and returned Veronica to him.

The couple attempting to adopt Veronica – Matt and Melanie Capobianco of James Island, S.C. – appealed that ruling to the U.S. Supreme Court. In June, the high court ruled that the ICWA did not pertain to the case because Brown did not initially have custody of his daughter and remanded the case back to the South Carolina Supreme Court.

“Dusten and Robin Brown have shown over the last 19 months that they are ideal parents for Veronica, and that cannot be ignored. They have created a loving and caring environment where she has thrived, surrounded by her parents, grandparents, sibling and cousins,” Ross-Nimmo said. “We hope that the South Carolina Supreme Court will take seriously this question of jurisdiction before making a final determination on our petition for rehearing. To overlook this development would be an injustice to Veronica and fly in the face of respect for the jurisdiction of other sovereigns.”

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