Originally posted in Tulsa World by Michael Overall
Phones rang nonstop. Tears flowed. An ambulance came for her grandfather, who apparently suffered a severe panic attack.
And Cherokee marshals set up roadblocks near the house to control the press and keep protesters away.
But in the chaotic final hours of the Baby Veronica saga last year, her family stayed calm in front of the girl herself.
“It was very emotional and very traumatic, but everyone did their best to not let it show around her,” remembers Chrissi Nimmo, an assistant attorney general for the Cherokee Nation.
When the time came, it was Nimmo who carried the 4-year-old girl away from her biological family and delivered her to the adoptive parents, who were waiting a few blocks away.
Veronica’s fate was sealed Sept. 23, 2013, a year ago this week, when the Oklahoma Supreme Court issued a ruling that cleared the way for her to go back to South Carolina with her adoptive parents. Ending a legal tug-of-war that stretched across two states and seven courtrooms across Oklahoma, the handover came within hours of the court order.
In the year since, both families have been conspicuously absent from the limelight, steadfastly refusing or, most often, simply ignoring requests for interviews. Dusten Brown is still “in communication with” Veronica, according to sources close to the biological family, although it’s unclear what form that communication takes, or how often it happens.
Either way, just like the night of the handover, Veronica is apparently being sheltered as much as possible from the uproar that surrounds her. Because, in some ways, that uproar has never stopped.
‘Far-reaching’
Analyzing the arguments on both sides in early 2013, as the case was heading to the U.S. Supreme Court, Jay McCarthy thought it looked fairly simple.
Under South Carolina law, Brown wasn’t a legal parent and “this should have been a straightforward decision,” says McCarthy, an adoption attorney in Flagstaff, Ariz., who has handled hundreds of cases under the federal Indian Child Welfare Act across the country. He also chairs the ICWA committee for the American Academy of Adoption Attorneys.
Brown and Christina Maldonado were engaged to be married when she became pregnant. And Brown, according to his version of the story, wanted to move up the wedding, partly to let his National Guard benefits help with medical expenses.
But Maldonado broke off the relationship and — again, according to Brown — rebuffed all of his efforts to help during the pregnancy. Veronica was born in September 2009. She was 4 months old and already living in South Carolina before Brown found out about the adoption.
Days before deploying to Iraq in January 2010, Brown signed a document that would later become the focus of a lot of media attention. He says he was tricked into thinking he was only giving full custody to the birth mother, but in fact, the document gave up his rights for an adoption that was already in place.
Ultimately, that signature didn’t have much impact on the legal outcome. Courts in South Carolina ruled it didn’t count as “informed consent.” But the courts also decided that under state law, Brown’s consent wasn’t necessary.
Brown, however, didn’t fight the adoption under state law. As a member of the Cherokee Nation, he claimed rights under the federal Indian Child Welfare Act, which does require the father’s consent for an adoption.
He won in front of the South Carolina state Supreme Court, and Veronica came to Oklahoma with the Brown family in December 2011.
Matt and Melanie Capobianco appealed to the U.S. Supreme Court, where McCarthy helped write an amicus brief in support of their adoption.
“The Supreme Court could have issued a very narrow opinion,” McCarthy says. “That’s what most attorneys and judges would have expected.”
Instead, when the 5-4 decision came down in June 2013, the court jumped headfirst into ICWA, and “the ruling is so broad that it affects every Indian adoption,” McCarthy says.
“And not just adoptions,” he says. “This has had a profound and far-reaching impact on cases involving children in foster care.”
ICWA was designed, in part, to prevent the breakup of an Indian family by the forced removal of children, a common practice before the law took effect in 1978. But ICWA didn’t apply to Brown, the Supreme Court decided, because he didn’t have custody of Veronica when the adoption was filed. There was no “intact Indian family” and no “continued custody” to protect.
But the court went further.
ICWA includes a set of guidelines for the “preferred placement” of an Indian child if, for whatever reason, the biological parents don’t have custody. First, the child should go to the extended family or, if suitable relatives aren’t available, to a member of the child’s tribe. The third preference is for other Native American families to take custody. Non-Indian parents are, essentially, a last resort under ICWA.
The law, however, allows a court to deviate from the preferred placement “for good cause.” Adoption attorneys have typically argued that the birth mother’s wish for an adoption is itself a good cause.
“For 30 years, we did that in every case,” McCarthy says. “The Supreme Court said we didn’t have to.”
Now, unless someone files a “competing petition” to adopt an American Indian child, ICWA’s preferred placements don’t apply, McCarthy says.
‘More awareness’
Tribes consider that a gaping loophole in a law meant to defend their sovereignty. And in the immediate aftermath of the Supreme Court’s decision, activists vowed to lobby Congress for changes to ICWA, hoping to minimize the ruling’s impact on future cases.
Now, the law’s supporters have reconsidered.
“We don’t really want Congress touching it,” Nimmo says, “when maybe the changes wouldn’t be for the better. There are people who would want to see ICWA weakened.”
Advocates are turning to state legislatures instead, starting here in Oklahoma.
Stand Our Ground for Veronica Brown began as a Facebook page where supporters of the Brown family vented their outrage. Over time, it evolved into an organized movement that staged rallies and protests. Some members were outside the house in Tahlequah where the Brown family was staying on the night of the handover.
After that, Stand Our Ground faced an identity crisis.
“We had to ask ourselves if this was really just all about one little girl,” says Linda Kats, a professional counselor in Broken Arrow who is one of the leaders of Stand Our Ground. “Or was it more than that?”
The group dropped Veronica’s name and refashioned itself as Stand Our Ground for Children, advocating for broad adoption reforms — not just for Native Americans, but for all children.
Kats helped draft the proposed Oklahoma Truth in Adoption Act, which would require biological fathers to appear in front of a judge to relinquish rights before an adoption could proceed. The bill languished in committee this session, but a legislative commission will continue studying the issue.
The legislation, in some form, seems likely to resurface in 2015.
Adoption should be about finding parents for children who need them, not finding children for couples who want them, Kats said.
“The one positive outcome in Veronica’s case,” she says, “is that it brought more awareness, more attention, to the way our adoption laws get the issue backwards.”
Meanwhile, Veronica turned 5 on Sept. 15. Whether she knows it or not, the controversy around her will continue for many more birthdays to come.
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