Oklahoma: Two families, two views: Biological dad says Oklahoma should 'stand up and defend her'

Tulsa World - By MICHAEL OVERALL World Staff Writer

Link to Story: http://www.tulsaworld.com/article.aspx/Two_families_two_views_Biological_dad_says_Oklahoma/20130809_11_A1_CUTLIN468350

Out of state with the Oklahoma National Guard, Spc. Dusten Brown uses a webcam to see his nearly 4-year-old daughter every night.

"When are you going to be home, Daddy?"

"Soon," Brown tells her. "Real soon."

The question is how long Baby Veronica will be there.

A South Carolina court is demanding that Brown bring her to Charleston "immediately," giving custody back to the adoptive parents, Matt and Melanie Capobianco, who raised her for the first two years of her life.

Brown will be back from Iowa before an Aug. 23 deadline to contest those demands in an Oklahoma court.

"I'm hoping Oklahoma will stand up and defend her," he told the Tulsa World by phone Thursday from Johnston, Iowa, where his National Guard unit has gone for training.

"She was born in Oklahoma. She resides in Oklahoma. She's an Oklahoman."

The South Carolina judge has asked federal authorities to enforce the decision to take custody away from Brown.

But no one can take her without an Oklahoma court's approval, according to Brown's attorneys.

And because Brown and his daughter are members of the Cherokee Nation, his attorneys will also ask a tribal court to intervene and claim jurisdiction.

"I'm never going to give up if I have any chance left at all," Brown said. "I love her too much to give up."

He brought Veronica to Nowata, an hour north of Tulsa, in December 2011, after a South Carolina court gave him custody.

The adoptive couple, who had raised Veronica from birth, argue that Brown recognized South Carolina's jurisdiction when he came there to sue for custody.

"It would be legally and morally outrageous" to switch jurisdiction to Oklahoma, said Lori Alvino McGill, an attorney who represents the birth mother and supports the adoptive family.

"Brown and his tribe successfully availed themselves of the South Carolina courts to wrest this child from her parents in the first place."

But Brown turns the argument around: South Carolina sent Veronica here, and it's not right to deny Oklahoma jurisdiction just because South Carolina now regrets that decision.

"They want to pretend that the last 19 months never happened," he said. "But everything has changed."

South Carolina's Family Court will have a hearing Wednesday to consider motions from Brown and the Cherokee Nation, officials confirmed Thursday.

And a tribal court has a hearing scheduled Sept. 4 to consider its own jurisdiction, setting up a potential three-way battle between Oklahoma, South Carolina and the Cherokee Nation.

That dispute could end up in federal court. But Brown and the tribe have already lost twice at the U.S. Supreme Court.

In June, the court overturned South Carolina's decision to give custody to Brown, saying he wasn't covered by the Indian Child Welfare Act, which governs the adoption of Native American children.

Then the court refused to intervene when South Carolina gave custody back to the adoptive parents without having a "best interest" hearing.

The Supreme Court's ruling, however, addressed only one particular interpretation of one particular law, said Chrissi Nimmo, an assistant attorney general for the Cherokee Nation.

It didn't settle the jurisdiction issue or change the tribe's own standing under the Indian Child Welfare Act, she said.

Brown was engaged to Christy Maldonado when she became pregnant in 2009.

She broke off the wedding plans before arranging a private adoption with the Capobiancos, who took Veronica to South Carolina just three days after she was born.

Four months later, as he was getting ready to deploy to Iraq, Brown signed papers that he thought would give full custody to Maldonado.

When he realized that Veronica had already been taken out of state, he sought an attorney's advice the next day and began seeking custody.

It was "the worst mistake of my life" to sign the papers without understanding the consequences, Brown said Thursday.

But the birth mother and the adoptive parents weren't upfront about what was happening, he said.

"If I didn't want my daughter, like they say I didn't, why didn't they just say 'Here, sign these adoption papers?' They didn't do that because they knew I wanted my daughter."

He tried to contact Maldonado several times, but she refused to see him and didn't even tell him when the baby was born, he said.

She also tried to obscure the fact that the baby would be Cherokee, he said.

In a letter dated Aug. 21, 2009, an adoption attorney spelled his name Dustin Brown, instead of Dusten Brown, while asking the tribe if he was a member and if the tribe would object to the adoption.

The Indian Child Welfare Act discourages the placement of Indian children outside of their tribes. And the Cherokee Nation considers the Baby Veronica case a test of tribal sovereignty.

In a statement last week, Brown said he would never "voluntarily" send Veronica back to South Carolina.

Some people interpreted that as a threat to physically resist a court order. But he promised Thursday to obey the law, even if it means losing his daughter - just not before exhausting every legal option.

Veronica, on the other hand, won't go willingly, he said.

"Her whole world is me and my wife," Brown said. "She's going to kick and scream, I guarantee it."

Court developments

Since June 25, when the U.S. Supreme Court ruled in favor of the adoptive parents, Matt and Melanie Capobianco, in the Baby Veronica case, the following court actions have been filed.

July 9: Cherokee Nation District Court officials confirm that Dusten Brown's mother and father, Tommy and Alice Brown, have filed for adoption of Veronica - in line with Supreme Court Justice Sonia Sotomayor's dissenting opinion.

July 17: Cherokee Nation courts name three of Dusten Brown's family members as joint guardians, giving them the power to make legal and medical decisions for Veronica and complicating the issue for South Carolina courts.

July 24: Christy Maldonado, Veronica's birth mother, files a lawsuit with several other women who have placed children for adoption, seeking to have part of the Indian Child Welfare Act declared unconstitutional.

July 26: Dusten Brown files a petition with the U.S. Supreme Court to review the case and require South Carolina courts to hold a best- interest hearing for Veronica.

July 31: Prior to a hearing on transition details for Veronica, a Cherokee Nation attorney appointed for Veronica files a federal lawsuit in South Carolina seeking to temporarily stop the hearing and hold a best-interest hearing. It is denied.

Aug. 2: The U.S. Supreme Court denies Brown's July 26 petition. Justices Ruth Bader Ginsburg and Sonia Sotomayor were the only dissenters.

Monday: A South Carolina judge orders Brown to surrender custody "immediately" after he didn't bring Veronica to a court-ordered visitation with the adoptive parents in South Carolina.

UPCOMING COURT ACTION:

Aug. 14: South Carolina Family Court will hear motions from Brown and the Cherokee Nation.

Aug. 23: Deadline for Brown to contest South Carolina's order in Oklahoma court.

Sept. 4: A Cherokee tribal court will consider extending a temporary guardianship for Veronica's stepmother and grandparents, potentially claiming jurisdiction over the case.