Adoption Case Brings Rare Family Law Dispute To High Court

Take the usual agony of an adoption dispute. Add in the disgraceful U.S. history of ripping Indian children from their Native American families. Mix in a dose of initial fatherly abandonment. And there you have it — a poisonous and painful legal cocktail that goes before the U.S. Supreme Court on Tuesday.

At issue is the reach of the Indian Child Welfare Act, known as ICWA. The law was enacted in 1978 to protect Native American tribes from having their children almost literally stolen away and given to non-Indian adoptive or foster parents.

Two of the justices likely have a special interest in the case: Chief Justice John Roberts and Justice Clarence Thomas both have adopted children.

The case before them and the other justices is a tragic saga. Christy Maldonado, an Oklahoma resident of primarily Hispanic heritage, was engaged to be married to Dusten Brown, a member of the Cherokee Nation, who is technically about 2 percent Native American. In 2009, Christy, a casino worker and single mother of two, told Dusten she was pregnant. But the relationship deteriorated and she broke off the engagement.

Beyond these facts, the protagonists in this story agree on little. One fact, though, is beyond dispute: Whatever happened in the first few months of the pregnancy, Dusten eventually texted Christy that he was giving up his parental rights and would not support the child.

“It punched me in the gut, knowing that the father of my child did not want her at all,” Christy says. “That’s when I pretty much decided I had to do something because I could barely even put food on the table for the kids at that time.”

An Adoption, And A Legal Challenge

Christy decided to put her child up for adoption. Through an agency, she found a couple in South Carolina she liked, Matt and Melanie Capobianco, and the three agreed to an open adoption. The Capobiancos helped support Christy in the last months of the pregnancy and were in the delivery room for the birth. Matt cut the umbilical cord.

A month prior to the birth, Christy, through her lawyer, sent a letter notifying the Cherokee Nation of her adoption plans, giving them a chance to intervene under the Indian Child Welfare Act. The tribe said it had no record of Dusten Brown as a tribal member. So the adoption went forward.

Four months after the birth of the baby girl — as Dusten was about to deploy to Iraq, and as the adoption was about to become final — he was served with papers notifying him of the adoption. Dusten signed off on them, inadvertently, he says. But within days he filed a formal objection, invoking the Indian Child Welfare Act. He says that in agreeing to give up his parental rights, he thought he was relinquishing his parental rights to Christy.

“I just figured the best interest would be … for [Christy] to have the full custody of her, but for me to still be in the picture — be able to come visit and stuff,” he says.

But after learning about the adoption, he sought full custody of his daughter. While there is no doubt that he would have had no leg to stand on under state law, by the time the case went to court, the Cherokee Nation had located him in its records. And the South Carolina courts ruled that the Indian Child Welfare Act trumped state law. In December 2011, the South Carolina Supreme Court ordered the Capobiancos to give their then-2-year-old daughter to her biological father, a man she had never met.

“It was by far the worst day of our lives and I’m sure of hers,” says Matt Capobianco. “She cried after us,” Melanie adds.

The adoptive parents appealed to the U.S. Supreme Court, backed by the birth mother and the guardian ad litem, appointed by the South Carolina family court to represent the best interests of the child.

Normally, the Supreme Court does not hear such family law disputes, but this case is a test of the Indian Child Welfare Act.

Competing Views

The law was enacted after extensive congressional investigations and hearings revealed that 35 to 40 percent of Native American children were being improperly removed from their families and given to white adoptive and foster parents. Charles Rothfeld, Dusten Brown’s lawyer, notes that these abuses were “catastrophic” for the tribes, which “were at risk of becoming extinct because their children were literally being taken away from them.”

To combat the dire situation, ICWA established a chain of adoptive preferences for children with Indian heritage. In the event that neither parent could take custody, other Indian family members were to have priority, and after that, tribal adoptive parents.

Just how you see this case is something of a Rorschach test, with the adoptive parents seeing it one way, the father another, the mother yet another, and the court-appointed guardian still another.

As the adoptive parents see it, they were not stealing a child from an Indian parent because the only parent with Indian heritage had already given up his parental rights. And as the Capobiancos’ lawyer, Lisa Blatt, puts it, the federal law was meant to protect Indian children from being snatched from their existing Indian families.

Even if Dusten qualifies as “a parent” under the law, “the Indian Child Welfare Act only protects those parents who already have a prior custodial relationship,” she argues.

Not so, say the tribes. They see the case as an attempt to undo the protections that Congress established in the face of evidence that states were trampling on the rights of Native American parents. “Congress decided it had to step in,” says Rothfeld, and it did so by creating “special federal rules superseding state custody rules that would govern where Indian child custody was at stake.”

The case also is about the autonomy of a non-Indian mother. The birth mother’s lawyer, Lori Alvino McGill, contends that if Indian fathers can sweep in this way, based only on biology, and override the birth mother’s decision, why couldn’t sperm donors or rapists who are Indian do the same? “No other set of men can choose to kind of sit back, renounce all responsibility but hold a back-pocket veto to an adoption choice,” she says.

The guardian ad litem, represented by lawyer Paul Clement, scathingly says there is “no box” like the one Dusten Brown is seeking to check.

“Generally you’re not allowed to say, ‘Well, look, I don’t really want to give you any financial support, I don’t really want to have much to do with this child, but I do really want you, person I’ve just gotten pregnant, I want you to take care of this child, and I don’t want you to do something like give up this child for adoption,’ ” he says.

What’s more, he adds, under state law, it is the best interests of the child that prevail. “Except if this federal statute applies and applies only on the basis of her Indian heritage, well, then everything changes. … It just completely shifts the focus of the whole proceeding around based on race,” says Clement, and “that’s something that we generally wouldn’t think the Constitution allows.”

A Heartbreaking Case

Native Americans bristle at the charge of racial classification. Indian tribes, they note, are quasi-sovereign nations recognized by the U.S. Constitution.

“This law does not apply because of race,” says Chrissi Nimmo, assistant attorney general of the Cherokee Nation. “This father was a citizen of the [Cherokee Nation’s] government; it’s not just if you have Indian in your background.”

Whichever way the Supreme Court rules in June, the case of “Baby Girl,” as she is referred to in the briefs, is heartbreaking. No one disputes that she was sublimely happy with her adoptive parents, and videos of her with her father, now married, seem to show a little girl equally happy.

Her birth mother says that while she spent time with her child at the adoptive parents’ home in South Carolina and listened to her child on the phone regularly, she now does not even know where her daughter lives. Neither do the adoptive parents. Dusten Brown says he has kept his daughter apart for the past 16 months to allow her to become used to her new home, away from the chaos and bitterness of the legal fight.


10 Top Ways to Fight Parental Alienation

There is much debate as to whether or not parental alienation rises to the level of a definable mental illness often referred to as “parental alienation syndrome.”  At Mr. Custody Coach, we don’t much care about that part of the argument.  Reasonably intelligent individuals are aware that people of all ages can be taught to hate, love, learn, etc. on any number of topics.  When a malicious parent chooses to teach their children to hate the targeted parent – that’s parental alienation.  (Referred to as “PA” throughout the rest of this article.)

It’s real.  It exists.  Despite all of the fear-mongering and hysteria, particularly by women’s groups – it’s not simply a “tactic to gain the upper hand” in a custody proceeding.  A mother can do it.  A father can do it.  It makes one wonder why anyone would be against anything that shines a spotlight on parental alienation.  We have our suspicions, but that isn’t the point of this article.  We want to share with you some ways to combat it when it is happening to you.  Please also see our Parental Alienation Teleconference – available on-demand with over 3-hours of extremely detailed and helpful discussion with our special guest expert.

#1 – Don’t become an alienator! Regardless of the order of the rest of the tips we present, this is the most important one.  When you’re experiencing PA, you will have a natural tendency to become defensive and explain yourself to death.  Worse, you may want to counter and talk about what horrible things your ex has done.  This is alienation, too!  Don’t get suckered by your natural desire to defend yourself against false accusations.

#2 – “I love you” always! Any time you do manage to gain contact with your children, regardless of the method, tell them that you love them.  Tell them that you care for them.  Tell them that they’re often in your heart and mind.

#3 – Positive language, always! Avoid the use of negative language.  This is one parents often overlook.  It’s simple and it’s subtle, that’s why it’s missed.  Sometimes we’ll call it “think like the child.”  Examples include:

Instead of, “I miss you…” Use, “I look forward to the next time I see you!” I miss you can put the child in a position to feel guilt or upset.  The second effort is upbeat and positive.

Instead of, “I wish I could have seen that…” Use, “Wow, that’s great to hear and must have been very exciting!” The former conveys a lost opportunity or a regret.  The latter conveys excitement, support, and positive reinforcement regarding whatever experience is the topic.

Find your opportunities to turn a potentially negative message into a positive communication.

#4 – Never stop contact efforts! Even if you know that your cards, letters, gifts, emails, voice-mails, etc. are being intercepted or are otherwise never delivered – don’t give up the effort.  Change may not come in the short-term, so keeping a diary or journal of your contact efforts as well as writing to your children as if they were going to read it – SOME DAY – will prove helpful both for you and, hopefully your children if they have the opportunity to find out the truth.

#5 – Control yourself! Manage your emotions. Follow your court orders and agreements.  Avoid giving your high-conflict ex-partner any reason to vilify  you to the children more than they already have.  Frankly, they don’t need an excuse, they can just make them up.  Made up ones, you are much more likely to overcome in the long run.  Provable mis-steps, not quite so easy to overcome.

#6 – Avoid blaming the children! Try to remember that they are victims in this mess, too.  You will be challenged on this one, as along with the general bad-mouthing about you that is a common part of the PA experience, your children may spy on you, talk about every move you make, every purchase you do, who you talk to or spend time with, and if you don’t remember that it is a part of the alienator’s arsenal, you could become agitated towards the children.  Don’t let it happen.

#7 – Be yourself! Don’t overcompensate, though.  If you just act as you always do, you can’t possibly be appearing to your children as your ex is portraying you.  Avoid overdoing it because of your desire to be “extra-special” as a means of countering your ex’s false allegations. Just be your usual loving, caring, nurturing self.  Always remember that your actions will forever speak louder than your ex-partner’s words.

#8 – Keep your plans, always! That is to say, if you’ve made special plans or arrangements which involve your children, leave them in place even if you fear that your ex-partner will not relinquish the children for your custodial time(custodial interference).  If you’re late or fail to show one time, it will be twisted into “proof” of your lack of caring for the children and give them the power to further alienate the children.

#9 – Build the relationship with memorable moments! We are not suggesting that memorable moments = become the Disneyland parent!  Quite the opposite.  Long talks while canoeing on the lake or during long walks, a nice vacation, having a catch with the ball, sharing a professional sporting event… for younger children – book reading, movie watching, this list is endless.  It’s not about “fun and games all the time” – it’s about memories that will forever be etched in their brains for all time.

#10 – Create the best team of professionals you can afford! Legal professionals, mental health professionals, therapists, articles, scholarly studies with solid data – all of that needs to be readily available to make your case the strongest it can possibly be.  Be sure they are knowledgeable and experienced with parental alienation and can advocate for the appropriate changes that will benefit your family.

Conclusion: Parental alienation of children, regardless of severity, will very likely affect them well into adulthood.  It is vitally important that you avoid, at all costs, directing your rage, frustration, or disappointment at the children. The high-conflict, vindictive ex-spouse is the root of the problem no matter how much the actions and words of the child are what becomes your immediate torment.  The children are caught in the middle of a terrible struggle and doesn’t really mean the terrible things they’re saying about you or doing to you.

Hang in there!


The Latest iPhone and iPad Apps to Help Lawyers

Scroll the Smarter Way: The Latest iPhone and iPad Apps to Help Lawyers Work More Efficiently

cloud_insetThe most downloaded iPhone and iPad applications may be the hit cartoon game Angry Birds, the popular social network Facebook and the Internet radio service Pandora, but among the one million different apps are some useful tools for lawyers on the go who crave organization, easy access and synchronization between their office and everywhere else. In a recent continuing legal education course, “iPhone and iPad Apps for Lawyers,” experts hand-picked apps in a variety of categories deemed most valuable for legal professionals.

Tech-savvy panelists Jim Calloway, director of theOklahoma Bar Association Management Assistance Program, and Tom Mighell, a senior consultant at Contoural, Inc., a provider of information governance consulting services, presented the most exciting applications for iPhone and iPad users that can make these devices the Swiss Army knife of successful lawyers.

An over-arching theme is the concept of a “mobile office” that provides tools away from your desk. Rather than a static paper calendar, apps such as Fantastical and Pocket Informant Pro can be accessed from a mobile device. For Internet searches, Calloway identified the Atomic Web Browser app as ideal for the iPhone and iPad because it “has the ability to remember your settings … so the next time you go to the site you won’t have to zoom in and out.” Google’s Chrome browser app allows users to access sites saved on a computer at work via their touch-screen devices.

“If you are a Chrome user on your desktop, you can synchronize all of your bookmarks back and forth (between your iPad and desktop),” said Mighell. Calloway reiterated that point, admitting that “many times that’s bailed me out where I had a bookmark I wanted to get back to.”

The panelists said that the question lawyers asked most about when using iPhones and iPads was: “How do I use Microsoft Word?” Document creation, revision and annotation are critical to many in the legal profession to access important attachments and make changes. As of now, there is no official app made for Microsoft Office.

Documents To Go® and Quickoffice Pro HD are popular tools for editing and manipulating documents, but experts shared that lawyers who crave consistency should download the app CloudOn to enjoy the entire suite of Microsoft Word features.

“With CloudOn, you are actually accessing Microsoft Office in the cloud,” explained Mighell. “It will load the document into a full version of Microsoft Word.” Mighell noted that CloudOn does have a limitation since it requires an Internet connection.

Panelists said another important task for legal professionals is note taking. Notability is a versatile app that lets users log information through handwriting, typing and audio. But Evernote, a popular new player in the app world, was labeled the “most valuable player” of iPhone and iPad apps based on its ability to allow users to log information as they find it, and search for it later.

“Evernote is just, in my view, a must-have app,” said Calloway. “It has a great web-capturing ability.”

As a cloud-based service, Evernote is a tool for tracking information and making it accessible by organizing the information with “tags” and storing those details in different “notebooks.” Users cannot only store their own notes and lists, but also articles they find and pictures they take while out and about. For instance, if a lawyer sees a street sign that needs to be documented for a particular case, a lawyer can snap a photo of it in Evernote, tag the photo with the case name, and find the photo later by searching for that case name.

“Evernote will use optical character recognition technology to be able to read the text in any image that you upload,” said Mighell. “You can easily read it and that makes it searchable.”

Experts stressed that lawyers also focus on security, especially because client-privileged information and personal information should be confidential. Mighell and Calloway recommended locking a device and instituting 12-character passwords rather than using the previous 8-character standard. An easy way to store these passwords is through password manager apps LastPass or 1 Password, said Mighell.

“A password manager is something you should have on your iPhone or your iPad,” advised Mighell. “Keeping track of passwords is just not easy to do and shouldn’t be done anymore on a notepad or sticky note.”

Experts also discussed how to digitally sign documents; how to use accessories to film witness testimonies with an iPad; how to scan documents with Scanner Pro; and ways to use an iPhone or iPad as a remote for presentations, such as through KeynoteRemote.

The panelists said legal professionals should download carefully; advising that they check with their IT department to verify if one app is preferred over another and to build a “support network” of friends and co-workers who also use the same apps. Several apps come in both free and paid versions, and experts recommend paying if a user enjoys the app enough or will frequently use it.

More information can be found in Tom Mighell’s book, iPad Apps in One Hour for Lawyers.  The CLE was presented by the ABA Law Practice Management SectionSolo, Small Firm and General Practice DivisionSection of Intellectual Property LawYoung Lawyers Division and the Center for Professional Development.

Top Ten Reasons to Hire a Lawyer

Not every legal matter requires the use of an attorney. Fighting a speeding ticket and going to small claims courts are two examples. However, in many other situations involving a legal dispute, challenge, or deal, you may not wish to chance the risks of going it alone without the advice of an experienced lawyer who can help you out. In fact, while good legal representation may not be cheap, it can help get you out of a number of sticky situations – such as a bad divorce, lost job, or DUI violation – not to mention the potential alternatives for not using an attorney — including broken agreements, lost claims, or worse, jail time.

While each person’s legal situation is different, there are times when you really should hire a lawyer. Below are the top ten reasons.

1. The law is complicated. If you are not a lawyer you probably have no business acting like one in certain instances. Even experienced lawyers typically do not represent themselves in court. A solid case can quickly unravel without the help of a trained and emotionally detached attorney. Similarly, failing to hire a lawyer when starting a business, reviewing a contract or embarking on other endeavors with potential legal ramifications can result in otherwise avoidable pitfalls.

2. Not having a lawyer may actually cost you more. What is at stake? A criminal case may determine whether or not you spend time behind bars, while a civil case could hurt you financially. Besides, many civil attorneys don’t collect a dime unless they win your case. Also, you may be able to claim legal fees as a plaintiff in a civil case, so hiring a lawyer can actually save or make you money.

3. Lawyers know how to challenge (and sometimes suppress) evidence. You may not even know that a key piece of evidence against you was improperly obtained or that the testimony of a witness contradicts an earlier statement. And did the crime lab properly handle the evidence every step of the way? Your attorney will find out.

4. Attorneys understand how to properly file court documents and handle other legal procedures. If you’re not an attorney, you may struggle with the deadlines and protocol for properly filling out and filing certain legal documents. One late or incorrect filing could derail your case, delay a given legal procedure or worse – have the case thrown out altogether (and not in your favor).

5. Because you don’t know any expert witnesses or private detectives. Attorneys depend on an extended network of professionals to help their clients’ cases. Most non-attorneys do not personally know the types of professionals who can help with discovery or challenge evidence or testimony by the opposing party.

6. You’re not sure how to plead — or what a ‘pleading’ is? Pleading guilty is not the only choice, even if there is evidence pointing directly at you. An attorney who understands the law will be best situated to explain your options and can help you avoid potentially severe penalties even before a criminal trial begins.

7. Because it is probably better to avoid problems in the first place rather than try to fix them once they arise. You may have heard the saying “an ounce of prevention is worth a pound of cure?” Well, hiring a lawyer in many instances will help you avoid potential legal headaches down the road. Do you really understand the fine print of that contract you are signing? A lawyer will.

8. A good lawyer can strike up a good settlement offer or plea bargain, if necessary. An experienced lawyer probably has seen cases similar to yours or at least knows enough to make a calculated guess about how it might resolve at trial. Sometimes a settlement is the best choice, while other times it makes more sense to see your case through to trial. An attorney also can help negotiate a fair settlement with the opposing party.

9. The other party has legal representation. Non-attorneys are generally at a disadvantage when squaring off against opposing counsel or doing business with another party that has legal counsel. As explained above, the law is complicated and an attorney representing your adversary (or even a non-adversarial party entering into a legal agreement with you) will take advantage of this inequity.

10. Lawyers often provide a free initial consultation. Since many attorneys will meet with you for free during a face-to-face consultation, there is really no harm in talking with one. Not only will a free consultation give you an idea of the type of case you have, it will help you decide whether you actually need to hire a lawyer.