By D.E. Smoot
Phoenix Staff Writer
A decision by a South Carolina Supreme Court requiring a lower court to grant the adoption of a girl of Cherokee descent sparked outrage from the child’s father and others.
Dusten Brown vowed Thursday to “never give up the fight to raise” his 3 1/2-year-old daughter, who was returned to her father 19 months ago by the same court. The South Carolina court’s order was entered in response to a U.S. Supreme Court decision that held the Indian Child Welfare Act inapplicable to what has become known as the Baby Veronica case.
“We are outraged that the South Carolina Supreme Court would order the adoption of our child finalized without a proper hearing to determine what is in Veronica’s best interests,” Brown said in a statement released by the Cherokee Nation, which has joined his cause. “This child has been back with her family for 19 months and to tear her away from us — the family she loves and the only family she knows or remembers — would be devastating to her.”
Brown said his daughter “is an Oklahoma child,” and South Carolina courts should play no part in deciding her placement. Alternative adoption proceedings have been filed in Oklahoma and Cherokee Nation courts in an effort to have the issue decided here.
The South Carolina Supreme Court order also drew criticism from a national organization that is lobbying Congress for stronger ICWA provisions in response the U.S. Supreme Court ruling. The National Indian Child Welfare Association, in a stern response to the South Carolina Supreme Court’s order, described the ruling as “incomprehensible.”
“NICWA shares the outrage reverberating through Indian Country today,” organization officials stated in the media release. “It is incomprehensible that, in its decision, the South Carolina Supreme Court took the added measure of forbidding the state Family Court from holding hearings to determine what is in Veronica’s best interest.”
NICWA officials said by remanding the case to family court for the sole purpose of finalizing the adoption, the state “failed to act in a manner consistent with the U.S. Supreme Court’s decision.” The organization said the South Carolina court’s ruling “sends a chilling message” to Native Americans who “rely on the integrity of the judicial system to protect our children.”
The U.S. Supreme Court’s 5-4 decision that reversed lower court rulings granting Brown custody of his daughter centered on the biological father’s absence early in Baby Veronica’s life. Justice Samuel Alito, writing for the majority, opined that an ICWA provision that prevents the “involuntary termination of a parent’s rights” without proving “continued custody” is inapplicable when “the relevant parent never had custody of the child.”
The case of Adoptive Couple v. Baby Girl began late in 2009, when Dusten Brown’s fiancé decided to give up their baby daughter for adoption. After the couple became estranged, Baby Veronica’s biological mother worked with an adoption agency to arrange the adoption.
Brown, who believed he had agreed only to relinquish custody of Baby Veronica to the biological mother, learned about the adoption just before leaving for Iraq to serve in the military. Brown contacted a lawyer the next day and filed an objection to the adoption proceedings and sought custody of his daughter.
A South Carolina family court judge in September 2011 concluded the adoptive couple failed to carry “the heightened burden ... of proving” Baby Veronica “would suffer serious emotional or physical damage” if her father were granted custody. The South Carolina Supreme Court affirmed the family court judge’s decision, basing its ruling on ICWA provisions.
In its order issued Wednesday, three South Carolina Supreme Court justices relied upon the federal court’s decision and that state’s laws to determine Brown’s consent to the adoption was unnecessary. With those impediments removed, the South Carolina court ordered the family court judge to grant the adoption and immediately place Baby Veronica with the adoptive parents.
Two other justices agreed with the decision to send the issue back to family court. Those justices, however, stated the change of circumstances warranted further review of Baby Veronica’s best interests.
Reach D.E. Smoot at (918) 684-2901 or email@example.com.