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Sunday, June 30, 2013

Adoptive Couple v. Baby Girl (3 of 4): On the Portrayal of Dusten Brown as a Deadbeat Dad

This case has been shadowed by concerns about Indian authenticity, equal protection, fatherhood and motherhood, dysfunctional child welfare systems, and “deserving” adoptive parents. The purpose of this series (part 1 is here and part 2 is here), co-authored with Kim Pearson, a family law professor who writes about transracial adoption and non-normative families, is to clarify what the case did and didn’t do and to untangle the impact of some of these shadow concerns. While the Indian law analysis is largely mine and the family law analysis largely hers, the post is a product of our collective views. Today’s post is about the case’s implications for how we think about fatherhood and parenthood.

As a matter of federal Indian law, it was easy to support Dusten Brown and the Cherokee Nation in this case. The more difficult question has been whether we would feel differently about the case if Indian law were not involved. Should we really have any sympathy for a deadbeat dad who didn’t do right by his child and then later changed his mind and tried to undermine the mother’s decision? But again the case is not so simple. Veronica’s parents were engaged when she was conceived. When he learned of the pregnancy, her father pressured her mother to get married even sooner. She broke off the engagement. Fighting over text messages, she gave him the choice between paying child support and relinquishing his rights. He chose relinquishment (he says he thought he was simply agreeing to give her full custody). He was stationed at Fort Sill and was preparing to deploy. He probably thought his ex would take better care of the baby (and would need full parental rights if he didn’t return from Iraq), and she seems to have made it clear she didn’t want him around. He had no idea she planned to give the baby up for adoption. 

He didn’t pay any child support or reach out to his child until she was four months old. His behavior during the breakup was rash and immature, and his failure to pay child support, help his ex through her pregnancy, and parent his daughter shouldn’t be applauded. It can be painful to feel like we are championing the rights of irresponsible fathers when we know all too well that the price of their mistakes falls on the mothers. But the dissenting Justices (including all the women) understood the complexity of this too:

In an ideal world, perhaps all parents would be perfect. They would live up to their parental responsibilities by providing the fullest possible financial and emotional support to their children. They would never suffer mental health problems, lose their jobs, struggle with substance dependency, or encounter any of the other multitudinous personal crises that can make it difficult to meet these responsibilities. In an ideal world parents would never become estranged and leave their children caught in the middle. But we do not live in such a world. Even happy families do not always fit the custodial-parent mold for which the majority would reserve IWCA’s substantive protections; unhappy families all too often do not. They are families nonetheless. Congress understood as much.

As soon as Brown found out about the pending adoption (it was arranged without his involvement, and he found out when he was served with papers days before he was to leave the country), he fought it. He got a lawyer. He indicated when served that he did not consent to the adoption. He sought a stay of the adoption proceedings. He tried to have Veronica placed with his parents while he was away, but the Capiobiancos wanted to keep Veronica while the courts considered whether to grant the adoption. Brown was overseas for more than a year, and he returned to court when he came back to continue opposing the adoption. This story, rather than Brown’s lack of interest in his daughter, explains why the adoption hearing took place when Veronica was two and had already been living with the Capiobiancos for most of her life.  

Biology v. Action

The Court seems to embrace South Carolina’s “biology plus” formulation for establishing paternity, reflecting the larger trend in family law towards preferring functional over formal family structures. “Biology plus” means that paternity is established with DNA and then outward signs of interest in the child, like paying for prenatal appointments, preparing a nursery, and so forth. Concern about Brown’s outward signs of commitment to fatherhood is odd because women aren’t held to the same standard during pregnancy and birth. Women who choose to carry a pregnancy full term aren’t required to pay for their appointments, prepare a nursery, and so forth to show that they deserve to keep a child; so long as they aren’t smoking, drinking, or doing drugs, commitment to being a parent is all assumed in the choice to deliver the infant. This is not to defend Brown for not pitching in financially at the outset: there is no denying the reality that most unmarried women do the bulk of care work and pay most of the expenses involved in having children. But we should be careful about how we frame fatherhood through ministerial duties. In other cases, biology reigns – biological parents can’t avoid paying child support (even if you’re a sperm donor for a lesbian couple), so why doesn’t biology matter in the same way here? As Justice Scalia noted in his dissent: “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. We do not inquire whether leaving a child with his parents is ‘in the best interest of the child.’”

This isn’t about a blind allegiance to biology: valuing functional families has beneficial effects. Allowing the law to view function in concert with biology has served to help stabilize LGBT, single parent, and adoptive parent families. But adhering too closely to a functional model of parenthood, especially when the actions deemed most important involve the provision of material resources, may further weaken non-normative families. When functionality in the form of privilege outweighs biology, there is no room for the possibility that unquantifiable aspects in biological relationships bind people together. The questions raised about Brown’s parental fitness seem to be an opportunistic preference for the functional model of parenting over the biological. If biological parents with low income, poor educational attainments, and limited choices are held to a standard like Brown was, and they do not perform commitment to parenting in the way that white, middle and upper class parenting norms suggest is appropriate, will they be deemed unfit parents? 

Setting Standards for Fatherhood

It is understandable why some states treat an unmarried biological father’s financial and emotional contributions as different issues. The state seeks private financial support for children; a focus on financial support makes sense because a child will benefit from having more material resources. For many single mothers who have had to shoulder the care and keeping of children, having courts inquire into the biological father’s relationship with the child provides an avenue for preventing abuse and intrusion from a parent who in the past has neglected parental obligations and may not have the best interests of the child at heart. It may even make sense for financial contributions to stand as a proxy for an emotional commitment to parent a child. However, requiring financial support from unmarried men in lieu of recognizing other forms of parental contributions does not just neutrally value those different kinds of contributions to a child’s life. This restrictive viewpoint values financial support more than emotional carework and leads some men to believe that fatherhood is solely about providing financial resources. Another twist is that the norms for performing rightful fatherhood, often aligning with stereotypes about race and income level, may be impossible or repugnant to some men. As a feminist, I find it troubling when men are not held financially accountable for their children, but I find it equally troubling when men are discouraged from doing carework and relationship building. 

In this case, when the majority and the media talk about Brown, they give him very little room to do what mothers do all the time – change his mind. When non-Indian birth mothers who plan to relinquish children for adoption give birth, usually they have a time period, albeit a short one, right after delivery in which to change their minds. Rather than condemn Brown for his behavior during the pregnancy and first four months of Veronica’s life, the time lapse should be understood as a period in which he came to terms with his parental responsibilities. Although only anecdotal, my days in practice led me to believe delayed timeframes for unmarried fathers wasn’t uncommon. Without fanfare or major changes to statutory support guidelines, when an unmarried father who has not played any role in a child’s life appears before the court to establish paternity, judges simply add up the costs of prenatal care and delivery, divide it in half, and add that amount as back support to the regular support order. More importantly, Justice Sotomayor points out that ICWA gave Brown a statutorily protected right to change his mind “up to the time a final decree of adoption was entered” and the petitioners agreed with the South Carolina Supreme Court that Brown had never given valid consent for Veronica’s adoption. That returns us to the point where Brown’s status as a parent with any rights at all hinged on a functional performance of fatherhood that the majority determined Brown did not meet.  

What Does the Holding Mean for Brown and Other Indian Fathers?

Justice Sotomayor’s dissent highlights how the majority’s interpretation makes Indian parents without custody vulnerable to a confusing “illogical piecemeal scheme.” This case could be interpreted to reach Indian parents who have “embraced the financial and emotional responsibilities for parenting” but do not have custody. The majority’s view of fatherhood requirements provides a limited vision of fatherhood. Although the majority speaks in terms of custody, it is important to recognize that formal custody is only obtained when a father can and does perform according to mainstream norms and has the legal resources to attain custody if there has been a dispute with the birth mother. If this view is extended to other parents, communities that have historically been unable or unwilling to keep mainstream norms are especially vulnerable to losing their children to the other birth parent or to the state. But failure to adhere to mainstream parenting norms, or even a failure to parent perfectly according to anyone’s norms, doesn’t mean that they aren’t good parents or that their contributions should be devalued. An older, but still relevant, study about African American fathers’ contributions to family life is available here.

Matthew Fletcher hints here that Justice Breyer’s question, “Could these provisions [Section 1915(a)(1-3)] allow an absentee father to re-enter the special statutory order of preference with support from the tribe, and subject to a court’s consideration of ‘good cause?’” could help Brown. Justice Breyer’s concurrence, while not quite imagining the range of circumstances that unmarried Indian fathers could have, does give voice to the concern that the majority view is too restrictive. Whether the restrictiveness that gives him concern is specific only to unmarried Indian fathers or pertains to all unmarried fathers, he is not wrong that we should be concerned about the laws and social norms for defining unmarried parenthood as the rapidly growing number of people who are opting out of marriage doesn’t appear to be slowing.

Posted by Addie Rolnick on June 30, 2013 at 04:30 PM in Constitutional thoughts | Permalink

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