Solomon wept: Baby Veronica decision followup

by Walter Olson on August 18, 2013

Despite the Supreme Court ruling, birthdad Dusten Brown says he “will not voluntarily” return Baby Veronica to adoptive couple Matt and Melanie Capobianco, and the Cherokee tribe has unfortunately given encouragement to his stance [Tulsa World, Michael Schearer, SCOTUSBlog (high court refuses to block adoption)] “Before the hearing [in Tahlequah, Okla.], Cherokee County sheriff’s officials ordered a Tulsa World reporter to leave the third floor of the courthouse, where the hearing was to be held. The Sheriff’s Office then closed the entire courthouse to reporters, yet members of the public were allowed access to the building.” [Tulsa World] Following threats of arrest and pressure from the governor of Oklahoma, Brown has now entered mediation with the Capobiancos [Tulsa World, more coverage]

Meanwhile, although defenders of the Indian Child Welfare Act have tended to applaud its elevation of tribal interests over the best interests of actual children, the Native American Rights Fund, revealing a newfound enthusiasm for the latter, has filed a suit purportedly on Veronica’s behalf arguing that her best interests are not being taken into account in the adoption. And the girl’s biological mother, Christy Maldonado, has announced plans to file a suit asking for parts of the Indian Child Welfare Act to be struck down as unconstitutional. [Associated Press/WCIV, Indian Country Today]

P.S. I do not rush to blame Mr. Brown, who, even if erring, is erring as many of the rest of us would. I do blame the Cherokee authorities, Native American Rights Fund, and others for irresponsibly egging him on as they stake out a maximalist position on behalf of a bad law.

{ 58 comments }

1 Veronica 08.18.13 at 11:29 am
2 blhlls 08.18.13 at 12:26 pm

This case points out the inexcusable delay in deciding these cases. Generally, the matters to be decided are issues of law which could be briefed and decided much faster. This child was placed with one family long enough to form strong bonds, removed and placed with another family for a couple of years, and is now ordered back to the first family. There is no practical reason these cases can’t make it through the appeals process in a matter of months instead of years.

3 Melissa 08.18.13 at 12:41 pm
4 nevins 08.18.13 at 3:54 pm

“The Sheriff’s Office then closed the entire courthouse to reporters, yet members of the public were allowed access to the building.”

Since when are reporters not members of the public, and also any member of the public still has all the rights and privileges of the second amendment to report on their observations. Is there anyone in government who has ever read the constitution?

5 Hippopotamous Nicholas 08.18.13 at 7:13 pm

YES! Yes this is a “bad law”. What we should do is go back to stealing native babies away from their families in a purposeful attempt to end tribal sovereignty by ending tribes, because the last members of the tribe would simply die childless. Just because it’s genocide doesn’t mean it’s wrong, if Overlawyered tells me so.

6 Bill Poser 08.18.13 at 7:29 pm

There’s a great irony here. This law is in reaction to the former practice of seizing Indian children, often on spurious grounds, and fostering them with white families in order to deacculturate them. At present, however, virtually every tribe is experiencing rapid population growth, and indeed many have been creating restrictive criteria for membership out of fear of adding unnecessarily to their rolls and diluting the benefits of membership, such as casino revenues. The Cherokee, in particular, have been engaged in a struggle to exclude the “black Cherokee”, the descendants of the black slaves they once owned. There is no present motivation for grabbing onto children with remote connections to the tribe.

7 Roslynne 08.18.13 at 9:49 pm

It should be noted that Dusten Brown is 1/32nd Cherokee – meaning Veronica is just 1/64th Cherokee. It’s one thing to argue on behalf of the dad, but to make this about Indian rights is really exaggerating. There are very real issues that detrimentally affect Native American communities, but this is not one of them.

8 Lisa Morris 08.18.13 at 10:46 pm

Not all tribal governments are attempting to increase their rolls, but some are. The benefit is the federal funding that is allocated on the basis of the last U.S. census as well as the number of people on the rolls. Not all the people on the rolls live on or near the reservation and thus not all are using the benefits. The Cherokee Nation has fought to keep “black” members off – but a the same time had 125 attorneys targeting about 1500 children in 2012. Many of these children had only minute amount of Cherokee heritage – just like Veronica.

I have no explanation for the pushing out of the “black” members – other than racism against African Americans. After all, the tribal government has no qualms about claiming children who are 95% Caucasian – children whose ancestor (s) decided a couple generations ago to move their families away from Indian Country.

Many, Many tribal members have purposefully chosen to reject tribal government and the reservation system. My husband, 100% Ojibwe, was one father who purposefully chose to keep his children away from the reservation.

What is so infuriating about so many of the ICWA supporters is the
1) Racist notion they have that they “own” our children and grandchildren. (blanket statements that ANY child with heritage is “THEIR” child.
2) Racist notion that all tribal members think, feel, and desire the same things
3) Racist notion that children of even the smallest amount of heritage have some inherent need to be part of Indian Country.
4) Racist notion that they know better than anyone else what is good for children of even the least heritage. In fact, if you read the blanket statements made about how white people can’t possibly know what is good for “their” children – they, who are complete strangers to our family, infer that they know more about what is best for our kids than my brothers, sisters or friends do (all of whom know my children intimately) . Not only that – but they infer that they know more about what is good for our children than I do.

Never mind the fact that the Capobianco’s represented 75% of Veronica’s heritage. Yet, according to the tribe, they couldn’t possibly know how to raise her due to the 1% in her big toe.

Hello? When is America going to wake up and recognize the foolish rhetoric for what it is?

It’s time to realize that MOST enrollable children are multi-heritage. (For those who struggle with that word, it means that they have more than one heritage – and thus, more than one extended family.)

We have many tribal members in our org – asking for protection from the over reach of tribal government. 75% of tribal members have left Indian Country, as a matter of fact, and many have left for the same reason that my husband had. His reservation is extremely dangerous and is no place to raise children.

9 BLT 08.18.13 at 11:15 pm

Mr Poser, ‘benefits’ of citizenship are different among tribes and the majority of Native Americans in the US are not recognized citizens of any Nations. They generally don’t seek to be if it’s just to get that imaginary pot of gold. Some tribes do have some wealth; most have very little. It’s a myth that the vast majority of Native Americans get anything different than any other Americans who don’t hold legal citizenship with a tribe. I’m Cherokee and White, and I’ve never sought citizenship. I do consider my heritage important and honor it.

Good on the Cherokee Nation for making the US keep its treaties! Being Indian, I think one’s word should be kept. I don’t need citizenship to voice that sort of view or to prove to anyone who matters that I am Indian. The Cherokee consider me Indian, BTW. Just not a citizen. It’s not unusual at all. Y’all need to keep up :)

10 ICWA Mom 08.19.13 at 12:30 am

This law is necessary to help keep Indian children with family and the tribe. I have 3 children adopted under the law. Doing away with it will mean we didn’t learn anything from history of the complicated relationship with American Indians. I wish the US would stop making laws for Indians and then trying to take them away again.

11 Renee Barnhart 08.19.13 at 1:34 am

To the person on top (Veronica) who put the petition link on here in favor of Dusten keeping Veronica. It’s funny. He doesn’t even have 2000 and the petition for Veronica going back to her “real” family has almost 25,000!

Shame on the Cherokee Nation for throwing more fuel into the fire. What respect I’ve had for them has gone. You are so corrupt as it is and this just further proves that you just want your hand in anything and everything that can have any chance of Indian in it. Once she is returned to the Capobiancos, it will be known that you haven’t got what you wanted. If I was Indian (who knows, I might have the same 1% in my blood), I would NEVER allow myself or my family to be tied to your tribe.

12 Lisa Morris 08.19.13 at 1:34 am

Just for clarification, the Indian Child Welfare Act is a federal law and is not found in any treaty. The Congress erroneously enacted this law. The Congress can repeal it.

Further – if we were to follow the letter of many treaties – the financial benefits were to only last twenty years. It began with a certain amount and was then reduced every five years until done. That is what is in many, if not most, treaties.

I am not saying that there isn’t any that state “as long as the grass grows” – I just haven’t seen one yet. I would be grateful to anyone who would cite it for me.

The ones I have read so far states that the benefits end after twenty years . So…if the desire is that every word of the treaties be kept – let’s do it.

13 Lisa Morris 08.19.13 at 1:54 am

On last question, Mr. BLT – You stated that as an Indian, you “think one’s word should be kept.” Could I get some clarification? Is there a difference between heritages concerning the desire that one’s word be kept? I remember two elderly farmers (non-tribal members) down the road from where we used to live, reminiscing about the days when they could seal deals with their neighbors with nothing more than a handshake. Listening to them both, it appeared to me that they also believed that one’s word should be kept.

Further – does this mean that Mr. Dusten Brown also has a heightened desire for one’s word to be kept? I am asking because a couple weeks ago he had said that he would never break the law. Yet, despite numerous court orders – even just this last Friday when the Oklahoma county court ordered that Veronica be presented…or… when he and his attorney’s signed off on the transition plan, they were affirming to the court that they could and would see to it that Veronica was brought to the visits (by proxy, if necessary, the papers very clearly stated). Could you clarify the discrepancy in keeping one’s word, please?

Or… even my own personal experience with certain extended family; Not all my husband’s family – but certain members – had some trouble keeping their word.

I had always observed that good manners are universally valued within every heritage – as well as frequently ignored in every heritage.

If you wouldn’t mind clarifying, I hadn’t heard that statement before.

14 JC 08.19.13 at 4:22 am

The ‘Cherokee’ Nation does not use blood quantum to determine their own people, they use ancestry (if you come from a man or woman on the rolls then you are ‘Cherokee’), if the public does not like that, it is just too bad, it is the Cherokee Nations sovereign right. It is a colonist attitude to tell the original people who they can and cannot be, ‘um sorry, you all aren’t Native anymore, we’ve come up with a better way of deciding who is Native’. Ancestry not blood, sorry you don’t like it.

15 Johnny Smith 08.19.13 at 9:06 am
16 dora 08.19.13 at 10:19 am

This is a messy case. The Capobiancos have known since the child was 4 months that the father did not want her adopted. The Capobiancos (they seem like wonderful parents) used SC law to circumvent the father’s rights (the birthplace was OK and this adoption would have been more difficult under OK law) kept the child forming the bonds they could have turned the child over much earlier. I think it would be awful to now take her from he bio dad, regardless of his heritage she has been with him too long. As far as the law is concerned, I believe that the Cherokee nation should have jurisdiction to decide what is in the best interest of their children (however they classify them) they are a nation and perfectly capable of doing so.

17 Joyce 08.19.13 at 11:11 am

The absolute best place for a child is with a biological parent, IF that parent is capable and able to provide a stable home. I haven’t seen anything in Mr. Brown to reveal that he is not capable of doing so. I think that adoption is for children who do not have a parent or family member who can care for them. Clearly this is not the case here. I don’t think this man should lose his daughter because in a moment of ignorance he signed something he didn’t fully understand.

I can’t blame the guy for applying any law his lawyer could think of to get his kid back, but the law stinks. Preserving one’s culture and learning history should be separate and apart from determining the best place for a child.

Overall, I think the villains in this case are the courts with their shameful feet-dragging.

18 Sarah 08.19.13 at 12:18 pm

Incase everyone was sleeping in their history class let me give you some valuable information about Native Americans… The Native Americans were on this land long before the Whites, the Blacks, the Asians, and any other ethnicity. The Indian Child Welfare Act (ICWA) is a federal law that seeks to keep American Indian children with American Indian families. Congress passed ICWA in 1978 in response to the alarmingly high number of Indian children being removed from their homes by both public and private agencies. The intent of Congress under ICWA was to “protect the best interests of Indian children and to promote the stability and security of Indian tribes and families” (25 U.S.C. § 1902). ICWA sets federal requirements that apply to state child custody proceedings involving an Indian child who is a member of or eligible for membership in a federally recognized tribe. This law is what will keep our Tribe alive. So when you want to say we should just take all of their children and kill of the Tribes, you might want to take a second to Thank a Native American for being hospitable enough to share their land with you. You see back when my Ancestors took care and provided for this land it was not near as corrupt as it is now. meanwhile, how does any of this nonsense of killing off a tribe have anything to do with the well being of an innocent child? She was wrongfully placed with two people that may or may not be capable of raising her. She is where she belongs now and where she needs to stay.

19 Walter Olson 08.19.13 at 12:42 pm

Welcome to all the new commenters! Please browse the rest of the site while you’re here. And yes, we are the beneficiaries of a “go tell Overlawyered why they’re wrong” effort by an online forum that holds a perspective on the case different from ours.

20 BArn 08.19.13 at 12:48 pm

Wow.. The lines are being drawn in the sand… This would be a good time to think wisely before pushing too far without expecting the bottom to fall out… And don’t think the top end is aware of what’s at stake here. The ICWA is an outdated and antiquated law that for the majority no longer serves its purpose and to where history and time have delineated its meaning… As even most would agree that the majority of Indians are not utilizing the benefits of using their sovereign entitlement. The determining factors of “who” is counted as a member of Indian heritage and how and for what purpose seems to vary by tribe as to lineage as well as heritage. Also, there is no consistency especially with regard to the other inalienable rights such as being an American citizen and having the same rights as every other American citizen regardless of race or heritage; and when those rights if equality take precedence over issues of race or matters before ICWA rules. This may be the time to weigh carefully the decisions and actions and possible outcomes that could have huge implications coming forward. IMHO…

21 Hugo S. Cunningham 08.19.13 at 2:12 pm

@Dora–

Your argument would be far more persuasive if the biological father had been tied to the mother and child through marriage (even a marriage ending in divorce). If you want to be reckoned a father, find a woman who is willing to marry you.

22 dora 08.19.13 at 3:49 pm

Hugo so are you saying if a parent is not married they are not a parent? Do you believe that for the mother or just the father? I don’t understand your comment.

23 Hugo S. Cunningham 08.19.13 at 4:47 pm

@Dora–

I am saying that when there is no marriage, the interests of the child, eg. to adoption by a stable two-parent family, should take precedence over the biological father’s. Biology gives the unmarried mother superior rights. Where there is marriage, then the father and mother deserve equal consideration. And, if the mother accepts meaningful child support from the biological father, then she has bestowed on him parental rights.

24 dora 08.19.13 at 11:11 pm

I disagree with you. Although he wanted marriage, it does not affect my opinion, biological parents wishes should take precedence period. He is married and the child will be in a stable 2 parent home, although that does not affect my opinion. He is the biological parent and it is his right if he wants to raise his child.

25 Hugo S. Cunningham 08.20.13 at 12:59 am

#Dora–
As you say, we disagree.

I wonder where the self-styled “defense of marriage” people are in all this– baying after homosexuals who pose no threat to marriage, while condoning family law that devalues marriage to the level of illegitimacy. Indeed, arch-social-conservative Kansas equates marriage with statutory rape:
http://en.wikipedia.org/wiki/Hermesmann_v._Seyer

26 Dora 08.20.13 at 1:01 pm

I read the piece and I am not sure how that relates to DOMA. Some people are also hinting that this case will be used to ultimately repeal ICWFA and other statutes related to Native American.

http://www.npr.org/blogs/codeswitch/2013/04/16/177466521/senator-who-drafted-law-in-baby-veronica-case-says-its-repeal-would-be-tragic

What I believe in this case, the bio parent’s wishes should be paramount. It is his issue that created this child not the Capobiancos (although I really feel for them and they are great parents), it takes 2 people creating this child and both should have a say in the destiny of that child regardless of their marital status. The bio mom did not get this child alone; why is she the decider?

27 Jo Anna Hoffmann 08.20.13 at 4:28 pm

Why is it so hard to understand that the biological father wants to raise his child – why don’t people get that??? This father was on his way to IRAQ – he was involved with the mother who had two children – who in their wildest dreams would ever think a mother who already had children would be willing to give up one – I don’t get that – all he thought he was doing was handing over “custodial placement rights” to her as he was going to IRAQ – there was no discussion whatsoever about adoption! Had there been a clear meeting of the minds – then we would not be discussing this today – this is CRAP! That child was CONCEIVED in Oklahoma, the biological parents were RESIDENCE of Oklahoma and the child was BORN in Oklahoma – this never should have been allowed through South Carolina at all – as soon as the father REALIZED what was happening he contacted the local JAG office at his military base and they hooked him up with an attorney – clearly the attorneys at the JAG Offfice knew something was not right – this entire matter is CRAP and the entire country should be set on one set of adoption rules that should be respected across the country. ADOPTIONS (when there is a full understanding and meeting of the minds) can be a wonderful thing and should be done before a JUDGE and in a COURT OF LAW – not in some parking lot!

28 Walter Olson 08.20.13 at 5:26 pm

Feel the love on Facebook. And welcome to new visitors responding to the request over there to “flood” this post with negative comments.

29 libertarian adoptee 08.20.13 at 6:46 pm

Hugo, I believe with all my heart that our rights come from the Creator. However, in a manner of speaking, the mother does bestow parental rights upon the father, and she does take something from him before she does this. (Psst. It’s not Federal Reserve Notes. )

Is it your position, then, that the state appoints parents through some sort of licensing process, possibly marriage or birth certificates or the exchange of fiat currency? And if so, how did humanity survive and propagate before we had such bureaucratic arrangements? I’m sorry, but I do not believe in the legitimacy of any government who would engage in such an overreach of authority.

30 Bill Poser 08.21.13 at 12:10 am

BLT,

I’m well aware that the ‘benefits’ of tribal membership vary considerably, but that doesn’t change my point, namely that the present law and its use in cases such as this is not motivated by the desire of tribes to survive as political entities and to preserve their culture.

By the way, I don’t know on what basis you claim that “the majority of Native Americans in the US are not recognized citizens of any Nations”. If you define “Native American” as anyone who self-identifies as such in the census, then there are about 1.8 million Native Americans of whom 1.14 million are members of federally recognized tribes.

31 Hugo S. Cunningham 08.21.13 at 12:12 am

@Libertarian adoptee–

The contract of marriage long predates the history of this or any other government, to the earliest days of human clans. Either the woman was accepted as a worthy addition to the man’s clan, or the man was accepted as a worthy addition to the woman’s clan. After the marriage (adoption), the two clans might or might not have continuing dealings with each other.
As some societies became more civilized, they gave the woman at least a veto over who she would get as a lifetime mate, even if clan considerations remain important.

I am not fixated on a government piece of paper or an established church. I would be willing to entertain evidence that Brown and Maldonado were married by a priest of Zeus, or even that they made a non-clerical common-law commitment to each other. No such evidence was offered. Merely having sex together is not enough. Most unmarried, non-fiancee participants in sex acts do not see them as lifetime commitments. (Perceptions were different in the age before cheap and reliable birth control, the age of “fallen women”)

Children raised by stable married-parent families have substantially better life prospects than children without married parents. That includes children adopted at an early age by said married parents.

In some of these cases where an unmarried DNA-dad shows up later to contest an adoption, they can present a veneer of stability, but it does not necessarily hold up once the publicity passes and the money dries up
http://community.seattletimes.nwsource.com/archive/?date=19970121&slug=2519837
On the other hand, at least Brown has a job.

32 Hugo S. Cunningham 08.21.13 at 12:29 am

@Dora

I was relating the issue of DNA vs. marriage to the subject of “defending marriage,” rather than to the cynically mislabeled “DOMA.” It was an ad-hominem needle not directed at you.

>in this case, the bio parent’s wishes should be paramount

Which bio parent? The mother, who carried the child for nine months, believed the child’s best interests are to be adopted by a stable two-parent family.
The biological father, never married to her, told her that he would not support the child.

33 L. C. Burgundy 08.21.13 at 1:29 am

Indian tribes and by extension reservations have been the recipient of the perhaps the most concentrated federal support in the last 100 years. Not surprisingly, a great many Indian reservations that have no casino revenues are basically wastelands of poverty and substance abuse. This is just more of the legacy at work, complete with people arguing for more litigation, more federal involvement and intervention, etc.

I hope some of our new friends stick around too though.

34 libertarian adoptee 08.21.13 at 11:26 am

Hugo,

You said, “The contract of marriage long predates the history of this or any other government, to the earliest days of human clans.”

Tyranny is also an ancient concept. Shall we force individuals to engage in that as well?

“Merely having sex together is not enough. Most unmarried, non-fiancee participants in sex acts do not see them as lifetime commitments. (Perceptions were different in the age before cheap and reliable birth control, the age of “fallen women”)”

Merely having sex together is quite enough, as a matter of fact. Children have been created in this manner since children have been created. In recent years, mankind has developed a wonderful technology capable of determining beyond a shadow of a doubt whether a male is responsible for having produced a child. As a matter of fact, it’s far more accurate than a marriage license. Have you considered venturing out of the Dark Ages?

“Children raised by stable married-parent families have substantially better life prospects than children without married parents. That includes children adopted at an early age by said married parents.”

I previously recognized your love of social engineering over the natural family. You may continue to profess that love if you wish, but your love of it does not lessen its authoritarian nature. At no point in this little social experiment called adoption does the state take its gun from the head of the adoptee and ask if he or she consents to the adoption decree. From cradle to grave, this welfare program is forced upon a party who is never asked to consent, but is instead told to shut up and be grateful for the opportunity to be stripped of one’s birthright. How dare we threaten your vision of apple pie and a picket fence!

In this case, this 20th century welfare program, which is in fact completely dependent upon state control of the birth certificate and state ownership of an individual’s biological identity, is being thrust upon a natural parent who is of age to refuse consent to this extremely authoritarian legal arrangement. He is a fit and willing biological parent, yet the state fancies itself in a position to forever abolish his parenthood based on its own very questionable judgment that he has forfeited his own fatherhood by neglecting to exchange FRNs with the child’s mother before birth. Instead of imposing a tax or fine for this monetary indiscretion, the state will take his child. He is currently raising the child and providing for her needs without support from the child’s mother, yet the state refuses to give the slightest consideration to present circumstances.

Simply put, this man did not purchase the right to parent his child at the correct point in time according to the state. Therefore, both he and his daughter shall forever bear the weight of your vision of a picket fence.

This is despotism at its finest. How is it exactly that you justify imposing your will upon these individuals with the force of law?

35 Hugo S. Cunningham 08.21.13 at 2:08 pm

@LA–

If a woman said she was raped and wanted nothing to do with the man, would that affect his equal parental rights in your view?

36 gitarcarver 08.21.13 at 2:54 pm

Simply put, this man did not purchase the right to parent his child at the correct point in time according to the state.

The man voluntarily gave up his parental rights to the child while the mother was pregnant. Furthermore, after the birth he did not initiate contact with the child or financially support the child after the child’s birth until the state contacted the man for the purpose of adopting the child into a stable home.

The man did not have to “purchase” anything. He only had to maintain his parental rights and he chose not to.

37 Jo Anna Hoffmann 08.21.13 at 3:30 pm

There was no meeting of the minds! The guy signed the paperwork in a parking lot accepting papers – just like a receipt! He was on his way to HELL (aka Iraq) – this is CRAP! How does a child born in one state, conceived there and parents of legal residence in another get taken to another – this is kidnapping! Clearly the US Army knew this was WRONG as they hooked him up with attorneys – this madness needs to STOP! When these folks knew there was an issue at 4 months they should have had the birth mother deal with this not them! This is not right!

38 Bridget Morgan 08.21.13 at 4:05 pm

gitarcarver: It wasn’t the state who contacted the man when the child was four months old. It was a process server in Oklahoma who was hired by the prospective adoptive parents in South Carolina via their adoption attorney in Charleston to whom they had paid money. Please feel free to correct me if I am wrong, but in my book said process server and his bosses do not constitute the state. Also, how could the man have given up his parental rights before the child was born, when until the child was born and a DNA test performed , the child could have been of another man, if the child’s birth mother had been unfaithful to the man. Further, how could the man financially support the child when the birth mother wouldn’t tell him her whereabouts or the child’s whereabouts. Lastly, I read it through the grapevine, as in the briefs filed in all of the jurisdictions prevailing in this custody case, that the man wanted to support the birth mother and child, but that the birth mother cut off all contact with man. Since the man then honored her fundamental right to keep her own counsel by not supporting her, what you have him do in such a pickle?
Respectfully yours and writing in wonderment, thank you.

39 Hugo S. Cunningham 08.21.13 at 4:43 pm

Jo Anna Hoffmann wrote:
>There was no meeting of the minds!

Right. They were not married.

40 libertarian adoptee 08.21.13 at 5:13 pm

gitarcarver,

“The man voluntarily gave up his parental rights to the child while the mother was pregnant.”

That may be your opinion, but it was was not the opinion of the court.

“Furthermore, after the birth he did not initiate contact with the child or financially support the child after the child’s birth until the state contacted the man for the purpose of adopting the child into a stable home.”

First, outside of adoption, is it reasonable for a man to presume that failing to make contact with a woman will relieve him of his legal obligations toward his child? Second, whether the home offering alternative placement for the child is stable or not is subjective and not provable. Remember the Deboers (Baby Jessica)? They were presented as that slice of stable Americana who could provide the iconic, two parent household, unobtainable by the child in her own family. They divorced. The only certainty is that the prospective adopters are not the child’s parents and have no claim to the child without either obtaining voluntary consent of both parents or waiting for an involuntary termination of parental rights by a court.

Next, would you apply this test to all fathers, or only to fathers whose other parent chose to patronize an adoption agency? Keep in mind that the support the mother was receiving during her pregnancy from the agency and the prospective adopters may have heavily contributed to her lack of communication with and failure to request or accept support from the father of the child. Is the bond between parent and child (that exists independently of the court’s judgment and transcends generations) important enough to allow for a reasonable benefit of the doubt to be afforded to a man who was not notified of the intention of the other parent?

Finally, do the 19 month this father has raised his child count for nothing? Is it reasonable for the court to pretend that never happened and base its judgment on the past tense?

41 libertarian adoptee 08.21.13 at 5:32 pm

Hugo,

“If a woman said she was raped and wanted nothing to do with the man, would that affect his equal parental rights in your view?”

Rape is a separate issue that should be addressed regardless of whether or not the child is surrendered for adoption. No, I do not support the right of a rapist to parent. Rape is an encroachment upon the liberty of another, and the perpetrator should not profit from that act of violence. However, depriving anyone of their right to parent, be they male or female, should take more than simply an allegation of rape.

42 Jo Anna Hoffmann 08.21.13 at 7:45 pm

Hugo that ‘rape’ comment has no place in this conversation! My pint is this if an attorney for the United States Army felt this matter was not on the up and up at the onset this is an important fact! If Christy Maldonado is so desperate for these people to have one of her children then she can give them one of her other two to raise! If the bio dad wants to raise his daughter then that should be his right! This agency needs to be investigated on the way they handle these matters!

43 Hugo S. Cunningham 08.21.13 at 9:23 pm

LA wrote:

>Finally, do the 19 month this father has raised his child count for nothing? Is it reasonable for the court to pretend that never happened and base its judgment on the past tense?

An interesting argument. Would you apply it in reverse, that successful adoptions that had lasted 19 months should not be uprooted either? I could go along with that– the USSC ruling *for the future* the ICWA should not applied in the erroneous manner it was in this case.

Did you notice “blhlls” early (#2) post, that child custody appeals that are a matter of easily decided law rather than difficult to discern facts should be expedited, so that tearing apart stong family bonds would be less of an issue.?

44 Hugo S. Cunningham 08.21.13 at 9:40 pm

@LA–
the reason I brought up rape was not that it applied in the Brown/Maldonado/Capobianco case, but rather to highlight a weakness of your DNA absolutism. You profess a distrust of government marriage records. But who, apart from the government, can weigh a rape charge?

If rape charges are the only way a woman can escape a relationship gone sour, then we will have more rape charges, some marginal and some even false. We already see questionable molestation claims in divorce child custody disputes.

You see perfection in DNA technology, but it is not static. Maybe in the next five years, maybe in the next thirty, it will be possible for a woman seeking an easy life to take a used water glass with Bill Gates’s DNA on it, bring it to a lab, and arrange to be implanted with an embryo marked with her DNA and Bill Gates’s. Should she get generous child support until the child finishes college? DNA technology will say “yes.” Old-fashioned marriage records would give the moral answer “no.”

45 Hugo S. Cunningham 08.21.13 at 10:07 pm

Hey, Walter–
It looks like you stirred up a perfect storm of anti-adoption zealots and aboriginal collective-rights absolutists. Most websites find it easier just to let such folk have their way.

46 Hugo S. Cunningham 08.21.13 at 10:24 pm

LA wrote
>HSC wrote
>>“Children raised by stable married-parent families have substantially better life prospects than children without married parents. That includes children adopted at an early age by said married parents.”

>I previously recognized your love of social engineering over the natural family.

I never have been able to comprehend the mindset that it is OK to employ public resources and power to promote failure and/or dishonesty, but it is somehow impermissible “social engineering” to promote opportunity and hope. Sure, examine what you call “social engineering” with skepticism to see if it does more good than harm, but shouldn’t you apply that standard to any government action?

Inciedentally, the nuclear family of Adam and Eve is a myth, part of a religious creation story. The real “natural” family is the clan, that can be observed throughout history and around much of the world today.

47 gitarcarver 08.21.13 at 10:43 pm

That may be your opinion, but it was was not the opinion of the court.

It is neither my opinion nor the opinion of the Court. It is a statement found in the summary of case in the SCOTUS opinion.

While Birth Mother was pregnant with Biological Father’s child, their relationship ended and Biological Father (a member of the Cherokee Nation) agreed to relinquish his parental rights.
……
For the duration of the pregnancy and the first four months after Baby Girl’s birth, Biological Father provided no financial assistance to Birth Mother or Baby Girl.

Source: http://www2.bloomberglaw.com/public/mobile/document/Adoptive_Couple_v_Baby_Girl_No_12399_2013_BL_167706_US_June_25_20/6

Next, would you apply this test to all fathers, or only to fathers whose other parent chose to patronize an adoption agency?

I don’t see this as a test, but the fact the father signed the papers relinquishing his parental rights plus his (in)actions until the state notified him of the pending adoption proves he knew what he was doing when he signed the papers. His (in)actions prove his intent and understanding of the papers.

48 libertarian adoptee 08.21.13 at 11:15 pm

Hugo, I’m a libertarian. I never said the state had no role to play whatsoever. I do, however, believe that the role of the government should be limited and focused primarily upon protecting the natural rights of citizens.

As for your Bill Gates scenario, that would be theft on the part of the woman. No, she should not get child support. In fact, I would go so far as to say that a court may legitimately find that the woman forfeited her parental rights when she used the DNA of another individual against that person’s will to create a child without his consent. However, Mr Gates would still be at liberty to assert his parental rights. I certainly could not, in good conscience, require him to marry this woman as a prerequisite for the state to recognize his natural right to parent his offspring. Similarly, I could not justify depriving the child of the love and care a fit and willing natural parent simply upon the grounds that he was not married to the child’s mother at the time of conception and birth.

It is an interesting twist on rape, and unfortunately, a circumstance that could be litigated in the future. It doesn’t apply to the Brown case, however.

49 Hugo S. Cunningham 08.21.13 at 11:28 pm

LA wrote:

>You said, “The contract of marriage long predates the history of this or any other government, to the earliest days of human clans.”

>Tyranny is also an ancient concept. Shall we force individuals to engage in that as well?

Voluntary marriage = “tyranny”? Get a grip.

[...]

>At no point in this little social experiment called adoption does the state take its gun from the head of the [infant] adoptee and ask if he or she consents to the adoption decree.

You are arguing like an anti-circumcision kook.

50 Hugo S. Cunningham 08.21.13 at 11:38 pm

@LA–

Ref the Bill Gates scenario
Your answer assumes the facts will be obvious as I stated them. In reality a clever con-person would muddy them. The scheming claimant would be able to prove that she could have had private contact with Mr. Gates, eg that she was a chambermaid at a hotel he was staying at. Or a groupie might come up with some ambiguous E-mails, plus, again, show that she *could* have been with Gates. How could one be sure, if one only has DNA to go on, not actual records (or lack thereof) of mutual commitment?

51 libertarian adoptee 08.22.13 at 1:10 am

@Hugo,

“An interesting argument. Would you apply it in reverse, that successful adoptions that had lasted 19 months should not be uprooted either? I could go along with that– the USSC ruling *for the future* the ICWA should not applied in the erroneous manner it was in this case.

Did you notice “blhlls” early (#2) post, that child custody appeals that are a matter of easily decided law rather than difficult to discern facts should be expedited, so that tearing apart stong family bonds would be less of an issue.?”

Hugo, I absolutely agree with the idea that litigation in adoption cases should be expedited when possible. In this particular case, the father was deployed, and the case fell under the Soldiers and Sailors Relief Act. I think the SSRA is a very necessary and proper protection for deployed military personnel.

I believe in individual rights. I believe that no matter how complex any issue appears, it can be solved by protecting the rights of individuals. It is very difficult for me to refrain from anecdotal evidence since this dilemma was first presented to me as an adult, reunited adoptee and a state legislative intern in the aftermath of the Baby Jessica case. I have certainly considered the issue for many years through the lens of an adopted person, as well as a natural, custodial parent.

In a word, no.

If the child has been successfully under the care of a nanny for 19 months, should the child receive the attention of the court if the parents intend to discontinue her services? Surely the child has made some sort of a connection with this caregiver. What is the difference between the child’s connection to the nanny and his connection to his parents? The nanny may have changed more diapers, kissed more boo boos, served more meals, and attended more play dates. Why is her connection to the child legally less than that of the parents? Biology.

Justice Scalia, in his dissent stated, “The Court’s opinion, it seems to me, needlessly demeans the rights of parenthood. It has been the constant practice of the common law to respect the entitlement of those who bring a child into the world to raise that child…. This father wants to raise his daughter, and the statute amply protects his right to do so. There is no reason in law or policy to dilute that protection.”

Like it or not, the very fabric of society is substantially impaired when unrelated strangers can make as strong of a claim to a child as that of his or her own parents. Until that adoption is final, the child’s only parents are those endowed upon him by Nature. It is the duty of government to protect the rights of those individuals to parent that child, and the right of that child to be parented by those individuals.

Certainly, it is in everyone’s best interest to expedite any custodial issues as quickly as possible.

52 libertarian adoptee 08.22.13 at 1:18 am

@Hugo,

re the Bill Gates scenario. Please stop worrying about things that have yet to happen. Humanity has enough troubles presently.

53 libertarian adoptee 08.22.13 at 1:38 am

@gitacarver

“Next, would you apply this test to all fathers, or only to fathers whose other parent chose to patronize an adoption agency?”

“I don’t see this as a test, but….”

Please see Lehr v Robertson.

http://supreme.justia.com/cases/federal/us/463/248/

This decision applied the standard established by SCOTUS in Lehr to cases involving the ICWA. It applies only in cases of adoption. A man cannot use the excuse that he was not married to the mother and did not support the child during her pregnancy to relieve himself of parental responsibility toward the child if the child’s mother chooses to parent.

54 gitarcarver 08.22.13 at 10:14 am

LA,

The Lehr case does not support you at all.

In fact Lehr states that a father who does not actively partcipate in the raising of their child cannot suddenly claim parental rights in determing whether a child can be adopted. In Lehr, the father never signed away his parental rights but yet the Court found he vacated them by his inaction.

In the Brown case, he signed away his rights plus failed to be a part of the child’s rearing.

The point is that the papers Brown signed were supported by his inaction of involvement in the life of the child.

He vacated his parental rights by both the written waiver and his (in)actions.

55 libertarian adoptee 08.22.13 at 12:45 pm

gitacarver,

I never said I was in support of the Lehr decision or vice versa. I said that the decision in this case (AC v BG), applied Lehr to cases involving the ICWA. For some reason, you’re worried about Brown receiving service in a mall parking lot before deployment. He didn’t sign his rights away at that point. In fact, that was the point he hired an attorney, invoked the SSRA, and began the legal challenge to the adoption.

The ICWA is a federal statute that includes provisions to protect paternity. Lehr is a previous SCOTUS decision that opened the door for states to pass laws such as those in South Carolina that require men to pay child support during a pregnancy or lose the right to contest an adoption. States are not obligated to deny a man the right to parent as described in Lehr. The ICWA didn’t restrict fatherhood based on that decision. South Carolina did. Brown’s loss of parental rights in SC had nothing to do with accepting service in a mall parking lot and everything to do with Lehr.

Hugo is arguing that because Brown wasn’t married, he shouldn’t be considered a father. Yet, biology is recognized as a reason to bestow fatherhood upon a man and charge him child support involuntarily. The only case in which biology doesn’t count is during an adoption. Lehr is the reason adoption is an exception. So fatherhood is not dependent upon the action or inaction of a natural parent. It is dependent upon the circumstance of a proposed adoption.

Personally, I think the Lehr decision was a very bad decision. In Hugo’s Bill Gates nightmare scenario wherein a man’s DNA is maliciously confiscated and a hotel maid gets away with it, he is still the biological father and charged for support if she keeps the child. But if the maid decides to sell the child through an unscrupulous adoption agency, the man would have no right to contest the adoption because he didn’t support the mother during her pregnancy. All she would need to do is fail to request or accept support from him, instead receiving support from an agency and/or the potential adoptive parents, and he has no voice in his child’s fate.

A man who may have wanted to marry a woman and parent their child but was instead intentionally alienated from his child with the help of an adoption agency is completely powerless to assert his right to parent regardless of biology while a man who didn’t get the mother’s name in the parking lot is charged child support for no reason other than biology. It’s the best of both worlds for the state, and completely unfair to men.

I don’t understand why any man would see this as fair. I’m a woman, and I think it’s completely unjust.

56 gitarcarver 08.22.13 at 3:22 pm

LA,

I am not sure why you are having difficulty with this.

Brown signed away his parental rights. He backed that decision by not supporting the mother or the child until the adoption case.

He then sought to reinstate his parental rights under the IWCA, but the Supreme Court ruled he had never acted as a father, signed his rights away, and could not assert his now non-existent parental rights.

Please tell us all under what system of libertarian beliefs is a person not held accountable for their actions?

Is that really the depth of your libertarian beliefs? A person’s word, actions, contracts and legal actions mean nothing?

Oy vey.

57 Hugo S. Cunningham 08.22.13 at 10:55 pm

LA wrote:

>I believe in individual rights. I believe that no matter how complex any issue appears, it can be solved by protecting the rights of individuals.

A fine slogan, but in the real world liberties of individuals conflict. In the world of child custody, your DNA model elevates the liberty of the sperm donor to control his DNA. My marriage model elevates the liberty of the woman to choose who she will raise her children with. I uphold contracts and commitments as vehicles to secure liberties.

>It is very difficult for me to refrain from anecdotal evidence since this dilemma was first presented to me as an adult, reunited adoptee and a state legislative intern in the aftermath of the Baby Jessica case. I have certainly considered the issue for many years through the lens of an adopted person, as well as a natural, custodial parent.

Yes, anecdotes can be offered by both sides on the adoption debate. Some adoption opponents discover their DNA mothers as adults, reasonably prosperous, and believe they could have been raised by said mother. They overlook the possibility, however, that putting an unplanned baby up for adoption was the one thing that allowed a young unmarried mother to get her life in order, finish her education, start challenging work, and find a worthy husband to spend the rest of her life with. Instead of growing up in suburbia with this married mother, the (non?)-adoptee would have been raised by the same mother unmarried, in a tough neighborhood with lousy schools and lousy prospects.

Justice Scalia is a DNA absolutist. He would even force a woman to bear a rapist’s child, though at least, unlike too many South Asian judges, he would not force her to marry the rapist.

Gitarcarver has been giving you the law. He has no responsibiity for my philosophical ramblings, that do not necessarily conform with current case law.

58 Hugo S. Cunningham 08.22.13 at 11:19 pm

LA wrote:

>If the child has been successfully under the care of a nanny for 19 months, should the child receive the attention of the court if the parents intend to discontinue her services?

Your equating of adopting parents with paid nannies is ridiculous. The expectations are entirely different, and the willingness to give everything to one’s child is different. Paid foster-parenting is a different issue, however, where your argument has some validity. Many foster parents are wonderful people, but some are not. For that reason, child protective service (CPS) seizure of children from families is risky, perhaps more risky than leaving them with the family.

[elsewhere]

>a man who didn’t get the mother’s name in the parking lot is charged child support for no reason other than biology. It’s the best of both worlds for the state, and completely unfair to men.

I agree with you– unfair (another argument against DNA absolutism).

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