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Monday, July 01, 2013

Adoptive Couple v. Baby Girl (4 of 4): Whiteness and Ideal Parenthood

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 (see part 1, part 2, and part 3), 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. In previous posts, we covered the statutory issues and the impact of racial anxieties about Indian law. In this final post, we focus on the way ideas about race, culture, and class can haunt adoption cases, both in the ICWA context and more generally. While we relate the issues in this case to issues that arise in non-ICWA transracial adoption cases, we do not mean to suggest that ICWA is a purely race-based statute (see post 1 and post 2). 

When race has been invoked in this case, it is said to operate unfairly in two ways. First, why should Brown get special rights (here, a second bite at the fatherhood apple) simply because of his ancestors? This special rights argument turns a blind eye to the fact the ICWA is a remedial statute. What are called special rights are actually part of Congress’ clear attempt to undo special harms directed at Indian families and tribes. The second is harder: why, in the words of the Court, should “certain vulnerable children [be put] at a great disadvantage”? Why should Veronica’s ancestry prevent her from getting the best home possible? 

Concepts like “best,” “loving,” and “ideal” are often deployed to mask privilege and the normative values that prospective adoptive parents embody in contrast to birth parents. According to the father’s brief, the guardian ad litem appointed to represent Veronica described the Capobiancos as “a well-educated couple with a beautiful home, [who] could afford to send Baby Girl to any private school that they chose and, when she was older, to any college she wanted; and that there was nothing that Baby Girl needed that [they] could not buy for her.” The state supreme court also described them as “ideal,” despite ruling against them, and most media descriptions of the case have repeated this description. By contrast, as we described in an earlier post, Brown has been portrayed in the media coverage as a worse father than the facts seem to reveal. 

The sloppy discussion of race and Indianness (see post 2) obscures the position of the majority of adoptive parents as white, middle and upper class, and in this case, adherents to a Christian religion. Laura Briggs critiques the Christian Right for its role in this case here. So much of the media emphasis is on the small amount of Cherokee ancestry that the child has, rather than the fact that the white parents are also members of a racial group who wish to define and raise the child as they deem appropriate. An ongoing problem that underpins a great deal of transracial/transcultural adoption is that adoption is too often formulated as a zero sum game where any introduction of another culture or race to “normal” or white families is seen as infringing on family privacy rights under Meyer v. Nebraska and Pierce v. Society of Sisters. The unexamined race and position of those commenting on a child’s race while undermining the parenting abilities of that child’s birth parents reinforces racial hierarchies by twining negative characterizations of race with rightful parenting (those Asian mothers don’t value girl babies or that Indian father was uninterested in his baby and lazy about establishing paternity). Thinking like this can only hurt the child in question, who may strongly identify with the very racial or cultural group that is devalued.

We don’t mean to denigrate the adoptive family, Matt and Melanie Capobianco, for their devotion to Veronica realized in the form of trying to adopt her, cherishing their time with her, and having a beautiful home in which to raise her. They didn’t deserve the pain of losing her because they mistakenly believed that they could adopt her. The media coverage of the case, however, has focused almost entirely on the possible unfairness visited on this couple. They did nothing wrong. They are ideal parents. They don’t deserve to lose a child they are attached to because of some legal loophole. Like Fisher, this is in some ways a story of white entitlement (and here). It depends on the belief that, as long as they follow the rules and do nothing intentionally wrong, whites should not lose out on opportunities to attend colleges, to get jobs, or to adopt children they love. This expectation obscures the ways that people of color often follow the rules and still lose opportunities. By focusing solely on the loss faced by the Capobiancos after they formed a relationship with Veronica, rather than on the preceding loss faced by Brown, the Cherokee Nation, and Veronica at the moment of the initial placement, the coverage ignores the very reality that the ICWA was enacted to counter: Indian children and tribal communities have suffered because of the widespread removal of children.

These removals were based on the default assumptions that Indian families and communities are deficient and that the tribe is less qualified than a state child welfare system to make a principled decision about what is best for a child, views that reiterate an unspoken racial hierarchy. Those seeking to dismantle ICWA use the argument that Indian children have worse outcomes than other children or that Indian children lose their chance to fare better than they would on the reservation when non-Indians are prevented from adopting them. These arguments ignore a shameful history of widespread Indian child removals and family disruption, the effects of which are still felt today. They also map mainstream norms onto childhood outcomes that are a result of a complex mixture of resource shortages, racism, and other forms of oppression. Obviously, if a child is in danger that child deserves to receive assistance and we should expect a tribe to take care of their moral and legal obligations to the child. But, starting from a wholesale assumption that tribes are less qualified to determine or assist their own children for no other reason than their outcomes as defined by non-Indians are not like mainstream children’s outcomes is problematic. This is another strike at the rightfulness of Indian parenting and tribal interests in their children.  

The media portrayal and the majority opinion cast ICWA, the tribe, and Brown as obstacles to the Capobiancos’ happiness. As the dissent notes, the characterization of tribes and ICWA as obstacles to the adoption of Indian children in a case about adoption of an Indian child by white family is “perplexing” given that ICWA was enacted to counter the high rates of such adoptions: “ICWA does not interfere with the adoption of Indian children except to the extent that it attempts to avert the necessity of adoptive placement and makes adoptions of Indian children by non-Indian families less likely.”

This portrayal is also reminiscent of the debates that rage(d) around transracial adoption. Solangel Maldonado’s excellent work comparing ICWA, transracial adoption, and more expansive views of fatherhood is available here. Justice Sotomayor’s dissent reminds us that the pain felt by the parties because of the mishandled situation is not unique to ICWA, “laws protecting biological fathers’ parental rights can lead - even outside the context of ICWA  - to outcomes that are painful and distressing for both would-be adoptive families … and children who must make a difficult transition” when biological fathers’ rights are protected – as they often are in lower courts.

What is best for Veronica can’t be assessed without consideration of her identity as a transracial adoptee (in multiple ways) and as a child who is growing and changing. The Child Rights Project filed an amicus brief, available here, arguing for the interests of the child. Veronica, like all infants, grew during the years of litigation, and she currently has a relationship with both biological and adoptive families. Should the Capobiancos retain custody, we hope they will be able to reach an agreement to facilitate Veronica’s contact with her Cherokee family (as they seem to have done with the birth mother’s Hispanic family via an open adoption). Unfortunately, there is reason to wonder whether state child welfare systems and non-Indian adoptive parents recognize the importance of these ties. For example, according to the father’s brief, the GAL stated at trial that Veronica’s Native American heritage meant “free lunches and free medical care,” “little get togethers,” and “little dances.” This, of course, is not surprising to anyone who has read the legislative history of ICWA. And it is not an issue confined to history, either, as demonstrated by the recent lawsuit filed by South Dakota tribes against the state alleging serious ICWA violations. This is why ICWA sets heightened requirements for terminating the rights of Indian parents and gives tribes the right to make decisions about placement. 

Ignoring Veronica’s interests, including her interest in maintaining contact with her tribe, would be a personal tragedy for her and her families. It would also be counter to the trend in family law towards open adoption and/or facilitation of meaningful contact with others in her racial and ethnic group(s). If the amicus filed by the Adult Pre-ICWA Indian Adoptees isn’t poignant enough to militate for exercising extreme caution when making transracial adoption orders, recent research, available here, here and here, on Asian children adopted transracially, usually to white parents who live in mostly white areas, shows that superficial cultural tourism-type exposure to help a child develop a racial and cultural identity is negatively correlated with self-esteem. By contrast, meaningful contact over time with positive role models who share membership in the same racial or ethnic group as the adopted child provide protective effects, i.e., positive self-identity, for the child.

 Last week’s other historic Supreme Court decisions are receiving more press coverage now, but this decision may have the greatest ripple effect, coloring future ICWA jurisprudence and bleeding into other areas of law. At minimum, the reasoning used in this case will likely slow the progress in developing a better framework for handling race, privilege, gender, and notions of good families. 

Posted by Addie Rolnick on July 1, 2013 at 02:17 AM | Permalink


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I think it is a likely scenario that, if DB had been able to block the adoption before placement with the Capobiancos had been made, the birth mother would not have agreed to DB assuming custody of Veronica. Perhaps he could have fought her on that, but it is quite likely (assuming the birth mother wasn't on drugs, etc), that DB never would have obtained full custody of Veronica if the birth mother had known that this was the alternative to adoption by the Capobiancos. So the agency's failure to inform DB of the adoption has also harmed the birth mother. She has not been able to maintain the relationship she had wanted with Veronica.

Posted by: Nell C. | Sep 12, 2013 9:03:06 PM

I agree with the SCOTUS ruling that said ICWA should not apply given that neither DB (nor his extended family) ever had a relationship with Veronica before she was placed for adoption.

That being said, I think the issue of DB's parental rights as a father (regardless of his Indian status) is an important one.

However, I disagree with the points made by Julia H. above. It is probably true that DB's informed consent for the adoption should have been sought. But I do not believe that seeking DB's informed consent, or keeping DB informed about Veronica, was the birth mother's obligation in any way. Whatever steps the birth mother may have taken to keep DB away from herself was totally within her rights. She clearly changed her mind about marrying him, and for all we know, she may have felt that he was emotionally or verbally abusive to her.

However, adoption is final, and some attempt should have been made to inform DB of the proceedings and get his consent. But it was the adoption agency's responsibility to do this, and the responsibility of the other child welfare agencies involved. It was never the birth mother's responsibility.

It concerns me when the birth mother's actions are demonized in order to defend the actions of DB. We do not know what her reasons for not wanting contact with DB were, and regardless of those reasons, she should not have been forced to make contact with him, if she were the sole custodial parent of Veronica.

That being said, it would have been the right thing to do to have DB relinquish his rights in a fully voluntary manner (for instance, as prescribed by ICWA, by signing papers in front of a judge), if that is indeed what he would have chosen to do at the time the adoption was initiated.

If he had been informed of the pending adoption by the agency as soon as that placement was initiated, and had refused at the time of being informed to consent to the adoption, then the mother, as sole custodial parent, also could have been better informed about her options (eg, keeping the child herself with or without seeking child support from DB, relinquishing child to DB upon birth, etc).

Posted by: Nell C. | Sep 12, 2013 8:56:44 PM

Reading over the background and the court documents in this case show a few things about the Birth Mother that are never mentioned.

She cut off contact with DB. She refused to take his calls, refused to answer her door, refused to respond to attempts by his family to contact her.

She went to an adoption agency and accepted $10,000 and medical expenses from the PAP prior to the birth.

She instructed the hospital where she gave birth to deny that she was there if DB attempted to locate her or determine if she had given birth. BUT she had the PAP in the delivery room and released the infant to them within a fews days. All without any attempt to contact DB and infact, blocking him from any contact or information.

DB was in the military and not free to leave at anytime he wished. The Birth Mother was free at any time to apply for Child Support. As DB was in the military it would have been taken directly from his pay every month without fail.

Complaints about non-support appear to be bogus and self-serving in this case. Maybe it was that $10,000 was more than the support he could have provided if she had not blocked all contact.

This whole issue of keeping a child from their birth parent/parents for years in the hopes that they will give up needs to stop.

Posted by: Julia H. | Jul 9, 2013 5:25:21 AM

I think one thing to be careful about in the analysis of this case -- and frankly it's something I struggle with now, when considering what should happen next -- is the facts we know now versus the facts that were known at the time. It's probably true that Mr. Brown has demonstrated himself to be a fit and capable parent; but at the time the birth mother decided to place Veronica up for adoption, that was far murkier. Granting that we can't know what was in her mind, I think it's still reasonable to imagine she believed he had no interest in parenting this girl and wouldn't be contributing towards her upbringing in any way. Certainly based on what we do know of his actions up until that point, that was probably not an unreasonable belief. With that understanding and her circumstances, adoption probably seemed like the right, best choice for Veronica. And given the facts at the time, the Capobianco's probably felt entirely secure in proceeding with the adoption as well.

I sympathize with your view that both parents should have to consent to an adoption, but I fear that in practice it may be unworkable. There are some (admittedly few, but still) who would abuse it as a way of maintaining power and control over their former spouses/girlfriends/boyfriends, i.e. block adoption in order to punish them. There are some who have an irrational bias against adoption generally (even when it would clearly be in the child's best interest). And while it's true that some may reform down the road and should be given a chance to remain involved in their child's life, there's no way ahead of time to ascertain who will and who won't. As I said earlier, I do believe some sort of waiting period is fair, but up-until-the-last-minute strikes me as tilting the balance too far -- at some point certainty for the child, the birth and adoptive parents becomes important. And frankly, there's something disconcerting about being able to say, "I won't contribute towards this child in any way, you can raise it on your own however you see fit -- as long as you don't try to adopt it out to someone else. If you do, then I'll come in and raise it." Whether that's what was meant, that's what it looked like here -- and that kind of pocket veto is disturbing.

And it should also be said that terminating parental rights does not equal no involvement in the child's life; many adoptive couples maintain an open relationship with birth parents and extended families (as my wife and I do with our adopted son's birth family). I hope that if the Capobianco's do regain custody, they won't cut off all ties with Mr. Brown and his family the way that he did with them. As much as she will certainly want to know more about him if she ends up back with them, she'll probably also want to know one day about the two people who loved her so much they went all the way to the Supreme Court over her.

At the end of the day, I think the think that what troubles me most about this case is that regardless of what SHOULD have happened before then, by the time the adoption case went to trail in family court -- when Veronica was 2 years old -- she should have remained where she was. It's just not possible to fix every wrong, and sometimes you just have to shrug and say that while the outcome isn't what should have happened, it's nonetheless the best outcome given what did happen. The irony of course is that this cuts in the opposite direction now.

What is the saying -- bad facts make bad law?

Posted by: Stephen Konig | Jul 1, 2013 9:59:27 PM

I do think parts of ICWA could be a good model, especially for transracial adoptions or other situations where similar issues are raised, and asking myself the "how would I feel if he were not an Indian?" question about this case helped me see that. (This may say more about my ignorance of family law than anything else, and I am sure there are reasons why laws making termination of one parent's rights very difficult could cause serious problems for mothers who can't get in touch with fathers or face the possibility of abuse.) Of course, there are aspects of ICWA, including all those that rely on tribes acting as governments, that are not easily transferrable to other groups because Indian tribes are unique in the federal government's recognition of their continued sovereignty.

Posted by: ACR | Jul 1, 2013 4:21:50 PM

"Termination should be available if the father shown to be harming the child, or if he chooses to relinquish rights in a fully voluntary manner (for instance, as prescribed by ICWA, by signing papers in front of a judge in a fully informed context)."

Do you think the ICWA procedures should apply to every relinquishment of rights in order to ensure that it is fully voluntary? I'm more troubled by the idea of, say, a non-English-speaking or illiterate father being able to relinquish his rights without signing papers in front of a judge, than as in the facts of this case, a man educationally qualified to serve in the US military and with access to JAG services.

Posted by: PG | Jul 1, 2013 4:01:18 PM

The mother does not have the right to arrange an adoption and circumvent ICWA when an Indian child is involved. The law has been around over 30 years and social service agencies and lawyers know all about the requirements of ICWA. Using tactics to avoid tribal notification and compliance with the law, and getting away with it for a time, is not justification for setting aside ICWA requirements. The father didn't hurt the child, the adoptive parents did, as did the State and the attorneys for the adoptive couple.

Posted by: WJ | Jul 1, 2013 3:44:14 PM

As to ACR's post: safe haven laws do now allow in every state a mother (though statutes may be written in gender neutral terms) "to be able to easily terminate the rights of a dad who seems to be (or would be if allowed) a positive force in his child's life."

Posted by: Jeff Parness | Jul 1, 2013 3:23:31 PM

As I was writing the last one, it struck me too how invisible she is in all of our posts. She isn't named, and she is barely discussed. So thank you for an important critique. There are at least two layers to the case - the Indian law layer and the family law layer. I read ICWA as clearly requiring specific procedures here. For the reasons I explained in earlier posts, I think it is fundamentally a law about child and tribe, not a parents' rights law. It is meant to apply broadly, recognizing, for example, that tribes have a right to take jurisdiction over child custody cases that arise off-reservation. And it is meant to ensure that tribal children are not subject to varying state laws, recognizing that tribes are generally subject to federal law, but not state law. I agree that cases involving a dispute between an Indian and non-Indian parent are tricky, and in many ways they seem closer to divorce custody disputes, which are not governed by ICWA. But termination/adoption is, and termination/adoption was involved here. Judicial narrowing of the statute is, in my view, a big mistake. But what your comment really gets at is the family law layer. ICWA should compel one result (though obviously the Court disagreed), but what this case has shown me is that I don't support the contrary result for other families either (as a policy matter, not necessarily a legal one).

Speaking as a mother (and not a family law expert), I have been troubled by exactly what you point out. If I were left to raise my kids alone, I would be livid if someone who had never helped or parented tried to block my decision. I know many mothers who have had to deal with sole parenting responsibilities, and for some it has been important to be able to terminate the father's parental rights and move on. But parenting has also taught me that kids have (at least) two parents, and while it may sometimes be easier to allow one parent to make decisions, you can't go back in time and make the other person a non-parent. The child will know of him and wonder about him. Even dads who at one time didn't act like good parents may later become an important part of a child's life. And this is where the facts of the case trouble me. Full custody is available to allow one parent to make most decisions alone. Adoption, however, is permanent and should require more. Termination should be available if the father shown to be harming the child, or if he chooses to relinquish rights in a fully voluntary manner (for instance, as prescribed by ICWA, by signing papers in front of a judge in a fully informed context). And certainly a father should not be able to force a mother to retain custody and support a child that he doesn't want to help with. But here you have a father who, despite his faults, basically said "you can raise her, but if you don't want to, I will." And he has done so. It may make it easier for the mother to be able to easily edit out the father from a decision like adoption, but I don't see how it serves anyone to be able to easily terminate the rights of a dad who seems to be a positive force in his child's life. If he were as uninterested as the coverage suggests, why not secure voluntary relinquishment through more careful procedures?

Posted by: ACR | Jul 1, 2013 1:05:23 PM

Thanks for a very well-written series of articles. While I support the Capobianco's efforts to adopt Veronica and believe that the law was misapplied in this circumstance, I found your article interesting and a powerful counterpoint.

However one aspect to this case that seems to have missed your analysis is the role of the birth mother in this case. As the sole custodial parent (at the time of placement), what rights does she have to choose how her child should be raised? It seems to me that it's fundamental to parenthood that we get to make decisions about how our children should be raised -- even if (or maybe even especially if) that means electing to have someone else raise them.

We don't know what circumstances led to the dissolution of the birth father and birth mother's relationship, but irrespective of that, the fact remained that she was left as the sole custodial parent and faced with a birth father who at the time showed no interest in supporting his child and provided no support. As the parent of other children, she probably rightly worried that she would be unable to support this new child appropriately. Moreover we can hardly fault her for not being able to divine that Mr. Brown would change his mind down the road. Given the circumstances she faced, deciding that her child would be better off with another set of parents seems entirely reasonable (if not heroic).

Were it not for ICWA, her decision to place her child for adoption and to choose the Capobianco's would have gone through without a hitch. Shouldn't sold custodial birth mothers (or fathers, for that matter) have the right to make these kinds of decisions? I will sign on to a view that parents should have the right to change their minds, up to a point; but given that we can't know ahead of time who will and who won't, and understanding that an up-until-the-last-minute standard probably introduces too much uncertainty for both the adoptive and birth parents, it seems reasonable to inject some sort of "surely by some point shortly after birth" standard along the lines that South Carolina and other states use.

I think your analysis of the backdrop behind ICWA is powerful and compelling, and offers a useful justification for ICWA and its protections. But in your coverage and in others, I do find it puzzling that the impact to the birth mother in this case is not considered.

Posted by: Stephen Konig | Jul 1, 2013 12:12:02 PM

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