The old adage that possession is nine-tenths of the law took on new and ominous meaning for some fathers after the U.S. Supreme Court’s ruling last week in the protracted custody battle over a young Native American girl named Veronica.
In a 5-4 ruling, the majority found that Veronica’s biological father, Dusten Brown, a member of the Cherokee Nation, implicitly gave up his parental rights and lost the protection of the Indian Child Welfare Act because he was absent when the mother was pregnant.
Dusten Brown holds his daughter Veronica after being awarded custody by South Carolina courts. Contributed photo
Justice Samuel Alito wrote that the law, which was enacted in 1978 to prevent Indian children from being separated from their families and their culture, “does not apply when, as here, the relevant parent never had custody of the child.”
That conclusion was based, at least in part, on the fact that Brown did not try to adopt Veronica, which concerned and riled a member of his appellate team, John S. Nichols of Bluestein, Nichols, Thompson & Delgado in Columbia.
“I think it’s wrong on both the facts and the law,” he said shortly after the June 25 opinion was released. “My goodness, Justice Alito faults Mr. Brown for failing to seek to adopt his own biological child. Why would he? This is intellectually dishonest. Unwed fathers of the world, file to adopt your own child.”
He added that the ruling appears to disadvantage unmarried fathers when it comes to making custody decisions simply because they lack the direct biological link that a mother has with a child.
“It does send a chilling message,” he said. “What this does is it elevates the mother’s decision to really a vote of one.”
The majority opinion also hinged on Brown’s essential estrangement from the mother during and after her pregnancy, leading Justice Sonia Sotomayor to assert in her dissent that the court’s ruling could have a greater reach than was intended.
Based on the standard followed by the court, fathers who were left in the dark about a pregnancy, prevented by the mother from seeing the child or who are too broke to provide financial support could now lose their custody rights, she said.
“In an ideal world, perhaps all parents would be perfect,” she added. “But we do not live in such a world. Even happy families do not always fit the custodial-parent mold for which the majority would reserve ICWA’s substantive protections; unhappy families all too often do not. They are families nonetheless. Congress understood as much.”
Brown, who agreed to relinquish his parental rights in a text message he sent to the mother, later contended that he only meant to give her custody and had no idea that she planned to put the child up for adoption. He contested the adoption, which has never been finalized, when he learned it was happening.
Veronica, now 3, lived with an adoptive couple in the Charleston area for about two years before the family court awarded custody to Brown and allowed him to take her back to his home in Oklahoma, where she has lived for the past 17 months.
New guidelines for dads
The adoptive couple’s local attorney, Raymond W. Godwin of Greenville, applauded the U.S. Supreme Court for taking a “common sense approach” in balancing the rights of his clients with those of the non-Indian birth mother and Brown.
In doing so, he said the court for the first time outlined the steps that unwed dads have to take to protect their parental rights under ICWA, which would include sharing in the pregnancy expenses, taking the mother to the doctor and being involved in the child’s life.
“These are just common sense activities of a father. … That was not done here. He [Brown] totally ignored the birth mother pre-birth, at birth and after birth,” Godwin said, adding that the ruling establishes that “an Indian parent can abandon an Indian child prior to birth.”
The court also broke new ground by affirming a non-Indian mother’s right to put her child up for adoption while protecting adoptive parents from the “birth father using the ‘ICWA trump card at the eleventh hour to override the mother’s decision and the child’s best interests,’” Godwin said, quoting from the majority opinion.
Adoption lawyer R. Glenn Lister Jr. of Mount Pleasant believed the ruling would simplify his practice when he’s dealing with a father like Brown who steps forward and attempts to halt an adoption.
“If we have a father whose parental rights are a non-issue we can proceed without dealing with the question of the Indian Child Welfare Act,” he said. “If the tribal father has not been in play, then you do not have to get tribal consent.”
Long road ahead
The adoptive couple has won a landmark battle at the U.S. Supreme Court, but additional hurdles remain and it is far from guaranteed that Veronica will be moving back into their home anytime soon.
The decision only reversed the South Carolina Supreme Court’s determination that ICWA made Brown’s custody rights ironclad. Now the case returns to the Palmetto State courts, which will have to do something that’s never been done in this case, according to Nichols.
“The court will have to apply state law, including a consideration of what’s in the best interest of this child,” he said. “Dusten Brown has let us know that he’s going to fight and do whatever he can to keep his child in his home. We may be down, but we’re not out.”
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