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