By D.E. Smoot
Phoenix Staff Writer
South Carolina Supreme Court justices denied requests Wednesday to reconsider their order instructing a family court in the state to grant a couple’s adoption of an Oklahoma child of Cherokee descent.
Justices stated in the two-page order that they “remain fully aware of the important and time-sensitive interests at stake.” The order, which was issued by a 3-2 vote, emphasized that the majority justices “are cognizant that the paramount consideration is the best interest and welfare of” Baby Veronica.
Wednesday’s order sets the stage for a federal lawsuit three national tribal advocacy groups said they would file to protect the child’s constitutional rights. The organizations mapped out the legal strategy Monday, the same day Dusten Brown, the child’s father, and Cherokee Nation officials petitioned the South Carolina court for a rehearing.
Jacqueline Pata, executive director of the National Congress of American Indians, said the justices “utterly failed to evaluate Veronica’s current best interests ... and confirmed our worst fears.”
“When it comes to Veronica Brown, standard adoption procedures do not apply,” Pata said in a media release. “Apparently the court believes that there is no need to require the family court to hold a formal and thoughtful hearing to determine what is in Veronica Brown’s best interest.”
Pata said Baby Veronica faces the prospect of being removed from her Cherokee family, just like thousands of other Native American children were before the passage of the Indian Child Welfare Act. The federal law was passed in the mid-1970s to guard against past abuses that involved the wrongful removal of Native American children from their homes and tribes.
In June, a divided U.S. Supreme Court held that ICWA was inapplicable to the adoption case that has been at the center of controversy since 2009.
Writing for a majority of five, Justice Samuel Alito held that an ICWA provision that prevents the “involuntary termination of a parent’s rights” without proving “continued custody” is likely to cause serious harm to the child is inapplicable in this case.
The ICWA provision, Alito wrote, “does not apply when, as here, the relevant parent never had custody of the child.”
South Carolina justices, who granted Brown custody of his daughter in 2011 based on ICWA provisions, seized upon that language to support their decision a week ago to grant custody of Baby Veronica to the adoptive parents without hearing evidence regarding her best interests.
“While this court was in error concerning the applicability of ICWA, we have consistently held that under state law, the birth father’s parental rights (because of his irrefutable lack of support, interest and involvement in the life of Baby Girl) would be terminated,” the justices wrote. “Therefore, under state law, the birth father is precluded from challenging the adoption.”
Those facts, however, have been disputed by Brown and Cherokee Nation lawyers. Pata said the courts’ reliance on Brown’s alleged absence during the first 18 months of his daughter’s life shows a “willful disregard for the facts.”
“On the contrary, Dusten Brown has gone to extensive lengths to maintain his family and to care for Veronica,” Pata said. “The court’s willingness to ignore these facts and rush a resolution in this matter is deeply troubling.”
Cherokee Nation Principal Chief Bill John Baker described Wednesday’s developments as “a travesty” and “heartbreaking.” Baker vowed to “stand steadfast with the Brown family” in the custody battle and asked the public for prayers of support.
Pata said her organization “refuses to stand by” while Baby Veronica’s rights are violated. The organization, along with the Native American Rights Fund and National Indian Child Welfare Association are preparing to file a civil rights action in a South Carolina federal court.
Brown is out of the state for mandatory training with the Oklahoma Army National Guard. A temporary guardianship order issued by the Cherokee Nation District Court placed his daughter in the custody of her stepmother and paternal grandparents.
The South Carolina justices in the majority described the “emotionally charged case” as having been fully litigated to the point of finality. The two dissenting justices stated that they would have granted the requests for rehearing, vacated the court’s earlier order, and remanded the case to the family court for further hearings.
Reach D.E. Smoot at (918) 684-2901 or firstname.lastname@example.org.