Co-authored by Bruce Boyer
The last time most of us heard about the heart-breaking Baby Veronica case was several weeks ago, when the child's Native American father gave up his years-long legal battle to retain custody of her, and her adoptive parents promised to maintain ties to her biological family.
Major Indian and child welfare organizations -- including the Donaldson Adoption Institute -- overwhelmingly decried the outcome as an unjust denial of a father's right to raise his own child. Many television pundits and some adoption advocates, meanwhile, declared that a sad saga had ended happily because Veronica would now grow up in a loving family.
Alas, it's hard to fathom how anyone can describe what has occurred -- and is still occurring -- in this case as "happy." Furthermore, the saga has not ended at all, and proceeding as though it has would deprive us of the opportunity to learn its many important lessons: about the critical right of fathers (and mothers) to parent the children they create, about the corrosive effects of money on the adoption system, and about the sordid chapter in U.S. history when Native American children were systematically removed from their communities and placed for adoption.
First a quick recap: Veronica's mother, Christy Maldonado, placed her newborn for adoption with a South Carolina couple, Matt and Melanie Capobianco, in September 2009. Dusten Brown, the child's father, was preparing to deploy to Iraq with the Army at the time; he subsequently said he was deceived into signing relinquishment papers and sued to gain custody of Veronica, which he succeeded in doing in December 2011. On appeal, the U.S. Supreme Court ruled in July 2013 in favor of the Capobiancos, and Veronica moved back in with them two months ago.
That brings us to last week, when the Capobiancos' pro bono attorneys asked a court to order Brown and the Cherokee Nation to pay them $1 million in fees. It's hard to describe this late-stage maneuver -- against a nearly destitute father and the tribe that supported his effort to raise his own daughter -- as anything except punitive. And it's even harder to reconcile the request with the cooperative transition to an open adoption that the Capobiancos had promised.
This latest chapter in a young child's heart-rending saga does offer an opportunity, however, to step back from the details of the custody battle and consider its many important lessons. They notably include the role that money has played throughout this case, which has been replete with ethically dubious actions by the parties who, in the end, prevailed over Brown and his supporters. Here are several examples:
• The South Carolina director of Nightlight Christian Adoptions, which handled Veronica's adoption, arranged for her own husband -- who is an adoption attorney -- to represent the Capobiancos. While not explicitly prohibited in South Carolina, such arrangements are viewed as a serious ethical problem in other jurisdictions. The concern is that, in such a situation, it could appear that an attorney had loyalties other than to his/her ostensible clients; in addition, even if the clients had issues with this conflict of interest, they might not risk complaining out of fear that the agency would put their adoption at risk.
• The Capobiancos arranged and paid for Maldonado's attorney. As a result, there was the prospect -- or at least the appearance -- of divided loyalties, since the Capobiancos were paying the bills. Though permitted by South Carolina's lax adoption laws, this is also a practice that has been widely derided as unethical. The American Bar Association in 1987 concluded that the conflicts of interest inherent in such "dual representation" cannot be reconciled because the interests of birth and adoptive parents are so distinct.
• According to several media outlets, the Capobiancos were quite generous to Maldonado during and after her pregnancy. While states generally permit some payment of living expenses for women contemplating adoption for their babies, most set limits as a way of curtailing potential economic inducements for mothers to feel pressured or, worse, to effectively sell their children. While no details have been disclosed about payments to Maldonado, for context, it is known that two judges who reportedly have approved unorthodox payments -- such as television sets and breast augmentation surgery -- were recently called to testify before a grand jury in Oklahoma (where Veronica was born).
• During her pregnancy, Maldonado cut off all contact with Brown, which prevented him from asserting his right to parent his child. Under South Carolina law, an unmarried father can only contest an adoption he has lived with the mother or has paid significant prenatal expenses. On the advice of her counsel (reminder: paid for by the Capobiancos), Maldonado closed both of these doors by ending contact, even directing hospital staff to pretend she had never been admitted if Brown called. Notably, through the entire case, he was never found unfit. Rather, the final South Carolina court decision -- after a remand from the U.S. Supreme Court -- said he not only had no right to object to the adoption, but also did not even have a right to a hearing to determine the best interests of his daughter.
• Moving out Veronica out of Oklahoma after her birth presented another obstacle because of her Native American heritage, which Maldonado disclosed at the outset to Nightlight and the Capobiancos. The adoptive parents were legally required to secure Oklahoma's permission to move the child to another state, under a federal law known as the Interstate Compact on the Placement of Children (ICPC). They were also required to alert her tribe prior to relocation under the federal Indian Child Welfare Act. The problem for the Capobiancos, Nightlight, Maldonado and their lawyers was that if they followed legal requirements and alerted the Cherokee Nation, the tribe was almost certain to block the child's removal from Oklahoma and prevent the adoption request from even being filed.
The child's Indian heritage was not revealed, however, until it was too late to matter. In the initial inquiry to the tribe prior to the child's birth, Maldonado's lawyer misspelled Brown's name and gave an incorrect birthdate, preventing the tribal connection from being made. This misrepresentation was compounded after Veronica's birth, when Maldonado incorrectly listed her as Hispanic on the forms necessary for ICPC approval. Maldonado later testified that she accurately disclosed her daughter's heritage with everyone involved at the outset, including the lawyer hired for her by the Capobiancos and Nightlight's Director (who, recall, was married to their attorney). Maldonado's testimony raises serious concerns about what everyone involved in supporting the adoption knew and when they knew it. In any event, the result was that the Cherokee Tribe was left unaware, and thus unable to stop the adoption from going forward.
And what of the $1 million request for attorneys' fees? To be sure, the fact that the Capobiancos' lawyers initially agree to work pro bono should not prevent them from now seeking payment for their services. Nevertheless, the request has to be viewed in the context of the sordid events that preceded it. Nightlight, the Capobiancos, Maldonado and their lawyers appear to have orchestrated a series of events that resulted in separating an infant child from a fit father who wanted nothing more than to raise his own daughter, and who did so for almost two years until an extraordinary series of legal decisions took his child away. Seen from this perspective, the request could easily be interpreted as a resounding message to any young parent who thinks to stand up to powerful industry that is too often fueled by a profit motive.
If adoption is to be a humane, thoughtful and ethical process, everyone's rights must be protected from deceptive or predatory practices, and that means mothers and fathers -- pointedly including Brown -- should never be deprived of their children simply because they were legally out-maneuvered. It also means that a law designed to protect Native American culture should not be skirted or subverted to expedite any single adoption. And it means that statutory and regulatory action simply has to be taken to minimize the corrupting influence of money in a system that is meant to serve the interests of vulnerable children and adults.
*Bruce Boyer is Director of the Civitas ChildLaw Clinic at Loyola University in Chicago