On Friday the Cherokee Nation came out swinging in their response to the motion filed weeks ago in Nowata, Oklahoma county court in Adoptive Couple v. Baby Girl, in which Matt and Melanie Capobianco are seeking approximately $1 million in attorneys' fees and costs. Their recent filing in Oklahoma is the second jurisdiction in which they have sought compensation in the four-year custody battle that ended in September when Dusten Brown relinquished his biological daughter to the Capobiancos after losing at the United States Supreme Court in June. Immediately following the child's transfer in September, the couple filed similar litigation in South Carolina seeking roughly $500,000 in that state.
In its 50-page response, the tribe bluntly told Nowata County Judge Curtis DeLapp that it is not responsible for paying the fees and costs for the Capobiancos because of its Eleventh Amendment sovereign immunity from suits without its express consent. Additionally, the tribe said that the statute under which the couple is seeking compensation, the Uniform Child Custody and Jurisdiction Enforcement Act, is not applicable to the tribe.
"Clearly, these people are trying to throw spaghetti at the wall in whatever court they can find to see what's going to stick," said an Oklahoma lawyer who declined to be identified because of the sensitivity of the case. "But, several things immediately come to mind. First, the tribe is a sovereign nation and cannot be sued without its express consent – and to my knowledge the Cherokee Nation is not in the habit of waiving their immunity. Second, this is a domestic case, one in which both the Capobiancos and Dusten Brown were represented pro bono, which was widely understood by everyone on both sides. To come after the fact asking for fees that the adoptive couple would not have had to pay had they lost, it then becomes a 'contingency' case. Contingency fees are never awarded in domestic relations, so that's a null.
Finally, you cannot sue in Oklahoma for 'work' performed in other courts and jurisdictions, whether it's another county, state or even the Supreme Court. That is just ludicrous and would open the door to chaos in parties going all over the United States seeking compensation and awards in multiple jurisdictions. They can only ask for fees relevant to the case that was before that specific court. The case in Nowata County only had two hearings and a few filings. But what is concerning is that they are claiming some 2,000 hours and fees in both states totaling some $1 million, which will not fly with any judge."
In their filing, the tribe also makes clear that its intervention into the case does not imply or denote any type of waiver of immunity or responsibility to the adoptive couple whatsoever.
"The Indian Child Welfare Act, which was intended to set minimum federal standards and limit the authority of states, cannot arguably authorize suit against a tribe. The ICWA provisions put responsibilities on states. In fact, nothing in ICWA requires anything of the tribe and only provides rights to the tribe including the right to intervene in state court proceedings," they wrote. "Without express language by Congress that such intervention would authorize suit against the tribe or permit the award of attorneys fees, this court cannot award fees."
The response goes on to reiterate that in over "1,000 Indian Child Welfare cases…not one single court has ever held that intervention into a state proceeding pursuant to ICWA allows for the award of attorneys fees against the tribe. This court should not… be the first."
But most tellingly, the tribe's response goes into great detail outlining the behavior and comments of the Capobiancos, their legal team and public relations firm during the course of litigation in Adoptive Couple in weighing the "Finger Factor" test in regards consideration for the "best interest" of the child. The pleading makes clear the tribe's displeasure with the Capobianco's very public media appearances, interviews and various fundraising schemes during the same time in which all the parties were under statutory gag order in South Carolina, presumably because such behavior is not considered in the child's best interest.
"Since New Year's Eve 2011, the Adoptive Couple have promoted their 'self interest' over the best interest of Veronica," said the pleading. "When Veronica was originally transferred into the custody of her father, the Adoptive Couple recruited news media and protestors. Minutes after Veronica was taken from her father and turned over to the Adoptive Couple, they began taking 'staged' photographs of the transfer of custody and followed up on that by scheduling an appearance on the Dr. Phil Show. In between there were countless personal appearances in the media, fundraising events including silent and online auctions, and even using Veronica's name and likeness to sell perfume, bracelets and bumper stickers to fund their campaign to remove her from her father."
The tribe also raised other issues regarding the Capobianco's behavior, including their recruitment of television personality "Troy the Locator" to stalk Veronica's school, as well as, their press conferences, website and use of a "pro bono" public relations firm to seek attention for their cause.
"All of this," said the tribe, "despite statutes and court orders regarding the confidentiality of adoption proceedings… There is no question which party put a 'priority on self interest over the best interest of the child,' and it was not the Cherokee Nation or Dusten Brown."
Next, the tribe pointedly declared that the hefty fees which the Capobiancos are seeking are "inappropriate and unreasonable."
"Specifically, the attorneys for the Adoptive Couple have repeatedly stated that they represented the Adoptive Couple pro bono," the tribe argued. "even going so far as to advertise this pro bono representation on their website."
In their response, the tribe pointed to ethical standards in which lawyers who seek compensation for their time are not representing their clients pro bono. This, according to legal experts, is where the Capobianco's legal team swerves into "contingency" representation.
"There is no grey area here: contingency fees are not awarded in custody disputes," said the Oklahoma lawyer. "Then you have a situation where lawyers are not motivated to settle because they potentially have more to gain. That is completely unethical."
Reminding the court that because no settlement between the Capobiancos and Brown had been reached during that ill-fated week in August, the tribe makes it clear that perhaps there was a reason the Adoptive Couple was not inclined to reach an agreement.
"By rewarding the attorneys of the 'prevailing party,' the court limits the likelihood of settlement, which was sought in this matter through a weeklong mediation, but if reached, would have left counsel for the Adoptive Couple without any chance of recovering any of the one million dollars in fees and expenses they now claim.
Did the chance of recovering one million dollars in attorneys fees prevent a possible settlement in this case?"
Finally, the Cherokee Nation pointed out that at least two of the attorneys seeking compensation, including Lori Alvino McGill, initially appeared as "pro bono counsel for the birth mother," Christy Maldonado, who was not a party in the case. Additionally, they argue that Maldonado is neither a "prevailing party," nor is she entitled to any fees, as such.
Several of the other attorneys for the Capobiancos are "not members of the Oklahoma Bar and never properly filed to appear before [the court in Nowata County]. For these reasons, the fees requested are unreasonable."
Ultimately, the tribe asserts that the Capobiancos and their legal team are seeking to "punish" the tribe for asserting its right to intervene on behalf of a child in court, and to send a warning to other tribes that the "same fate awaits them if they seek to exercise their rights under the Indian Child Welfare Act."
Judge DeLapp is expected to rule on the matter within the next few weeks.