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.