Yesterday, Dusten Brown dropped his four year custody claim for his daughter, Veronica.  This story has been in the news over the past several years, and has evoked strong feelings on all sides. Most of the media attention for the story surrounded the applicability of the Indian Child Welfare Act, which was ruled on by the United Supreme Court last summer.  The story, regardless of the ending, leads me to bring some strong recommendations for any parents trying to work things out, often times without adequate counsel.  The story, generally, is as follows:

Dusten Brown was a member of the Cherokee Nation and was in the Army in Oklahoma.  Christina Maldonado was a non-Indian single mother of two. Brown and Maldonado became engaged to be married in December 2008, and Maldonado informed Brown that she was pregnant in January 2009. Upon learning Maldonado was pregnant, Brown the allegedly began to press Maldanado to get married, and refused to provide any financial support until after the two had married. Maldonado broke off the engagement and cut all communications with Brown. In June, Maldonado sent Brown a text message asking if he would rather pay child support or relinquish his parental rights. Brown responded via text message that he relinquished his rights.

A few months prior to the baby’s birth, Maldonado began to work with an adoption attorney to place the child with a couple in South Carolina, the Capobiacos.   Maldonado’s attorney misspelled Brown’s name and provided an incorrect date of birth, so the Cherokee Nation was not put on notice of the proposed adoption. After receiving permission from Oklahoma authorities, based in part on the identification of the child as Hispanic instead of Native American, the Capobiancos took the child to South Carolina.Four months after the birth of the child and just days from deployment to Iraq, Brown was served with notice of the proposed adoption. Brown signed the document, believing that he was relinquishing rights to Maldonado. Brown, once he realized what he was signing, immediately tried to retrieve the document, and failing that, contacted the Judge Advocate General at his army base for assistance.  Seven days after being notified of the proposed adoption by the Capobiancos, Brown had obtained a stay of the adoption proceedings under the Servicemembers Civil Relief Act and he deployed with his Army unit to Iraq.

Subsequently, the South Carolina courts ruled that the Indian Child Welfare Act applied to the case, and that the child had to be turned over to Brown. The South Carolina Supreme Court affirmed on several basis, and then , the Capobiancos sought review by the United States Supreme Court.  The US Supreme Court agreed to hear the case on the narrow issues of the applicability of the Indian Child Welfare Act, and in June of 2013, held that the Act did not apply to these circumstances.

The fight then ensued between the two states, South Carolina, and Oklahoma.  South Carolina allowed the Capobiancos to legally adopt the child, but Oklahoma did not allow the child to be removed from the state.  Oklahoma ultimately allowed the child to be taken to South Carolina on September 23.

On October 10, 2013, almost four years since the start, Brown announced he was giving up his fight.

So, for the last four years, a child has been shuttled throughout the country, and three parents have been through an emotional ( and financial )nightmare.  What is particularly frustrating is that much of this could and should have been prevented had Brown fully understood what he was signing, and had not been misinformed about his initial agreement to give up custody in return for a release of financial obligations.

First, a parent cannot simply agree to give up custody in return for a “pass” on financial responsibility for a child. Moreover, a common misconception is that parental rights is the same as custody. It is not.  Custody, as most people understand it, is the ability to make decisions about a child generally.  Most people who think they are willing to give up custody believe they would still have the ability to communicate with the child later, and re-establish a relationship.  Termination of parental rights, on the other hand, is an absolute cessation of any contact or rights to and about a child.  If someone is relinquishing their parental rights, there must be assurances that it is a fully informed decision.

Second, there are complicated legal issues involved in any custody or adoption matter which goes across state lines.  This is not something you want to be uninformed about.  Each state may have its own custody laws and standards.

Finally, for prosepctive adoptive parents of children in other states, it is imperative that you know that all the I’s have been dotted, and all the T’s crossed.  This nighmare for the Capobiancos was really, at the heart, stared by a clerical error, intentional or not

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