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Cherokee Nation files petition for rehearing in Adoptive Couple v. Baby Girl

July 23, 2013
Cherokee Nation News Release

Julie Hubbard - 918-207-3896

TAHLEQUAH, Okla. – Today the Cherokee Nation filed a petition for rehearing in the case of Adoptive Couple v. Baby Girl, also known as the “Baby Veronica” case. The motion asks the South Carolina Supreme Court to reconsider its July 17 order, which moved to terminate the parental rights of Dusten Brown and transfer Veronica to South Carolina without a hearing on her best interests. Dusten Brown, an Iraq combat veteran and active member of the Army National Guard, has had custody of his nearly 4-year-old biological daughter since 2011.

“It is very troubling that the South Carolina Supreme Court would move to terminate the parental rights of a man who has proven to be nothing but a fit and loving father, without even holding a hearing to determine what is in his own child’s best interests,” said Cherokee Nation Principal Chief Bill John Baker. “What is best for Veronica has not even been considered by the court. We pray the South Carolina Supreme Court grants our request for a due process hearing to determine what is in this child’s best interests.”

The petition for rehearing was based on two points: First, the South Carolina Supreme Court was unaware of facts informing its determination of jurisdiction, and second, the court overlooked Baby Girl’s best interests.

At 9:29 a.m. Wednesday, July 17, 2013, Cherokee Nation District Court entered a temporary guardianship order, granting joint legal custody of Baby Girl to her stepmother, paternal grandfather and paternal grandmother. This temporary guardianship order was necessary due to Dusten Brown’s mandatory National Guard training, which he is currently attending. The mandatory military training order for Brown’s guard unit was issued in January 2013. The Cherokee Nation District Court’s temporary guardianship order was granted five hours before the South Carolina Supreme Court order remanding this case to Family Court to terminate Brown’s parental rights.

“Dusten Brown is an Iraq combat veteran who has fought as tirelessly for his child as he did for our country. That fight began the day he learned of the birth mother’s plans to place his child for adoption and continues today. Since regaining custody, he has created a loving, safe and nurturing environment for Veronica,” said Chrissi Ross-Nimmo, assistant attorney general for the Cherokee Nation. “This temporary guardianship order is just another step Dusten has taken to ensure his daughter is always well cared for should something happen to him as he is serving his country during this mandatory military training assignment.”

The Cherokee Nation argues that the temporary guardianship order must be considered by the South Carolina Supreme Court before making a final determination on custody of Baby Girl. Further, Cherokee Nation asserts that:

Legal custody of Baby Girl by the Paternal Grandfather prohibits the finalization of the adoption of Baby Girl without further proceedings. Under ICWA, an “Indian custodian” is provided many of the same protections afforded to a “parent.” ICWA defines “Indian custodian” as “any Indian person who has legal custody of an Indian child under tribal law or custom . . .” 25 U.S.C. § 1903(6) (emphasis added). Paternal Grandfather is a member of the Cherokee Nation and has joint legal custody of Baby Girl under tribal law; therefore, he is an “Indian custodian” and, as such, is entitled to the protections of ICWA.

Furthermore, the “Indian custodian”:

…has the right to “intervene at any point in the proceeding,” 25 U.S.C. §1911(c); the right to petition for transfer to tribal court, 25 U.S.C. § 1911(b); the right to notice and to request an additional 20 days before any hearing for termination of parental rights 25 U.S.C. § 1912(a); and the right to counsel 25 U.S.C. § 1912(b).

The Cherokee Nation also argues that because the South Carolina Supreme Court was unaware of the Cherokee Nation’s guardianship order at the time it issued its own order, and since the Cherokee Nation District Court legally exercised jurisdiction over Baby Girl:

Under ICWA, this Court “shall give full faith and credit to the . . . judicial proceedings of any Indian tribe applicable to Indian child custody proceedings to the same extent that such entities give full faith and credit to the . . . judicial proceedings of any other entity” 25 U.S.C. § 1911(d). This Court indicated, by noting that Oklahoma had declined to exercise jurisdiction, that had Oklahoma asserted jurisdiction, this Court’s Order may have been different. This Court is required by federal law to give Orders from Cherokee Nation District Court the same consideration it would have given to an Order from Oklahoma.

Lastly, the Cherokee Nation argues that Baby Girl’s best interests were overlooked by the South Carolina Supreme Court, by not providing a new hearing on her best interests. This, despite the court finding more than a year and a half ago that Baby Girl’s best interests were with her birth father.

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