More on Adoptive Couple v. Baby Girl (5 of 4)

In response to some of the comments received on our series about the Baby Girl case (posted on Prawfs earlier this week; the final post, with links to the others, is here), my co-author Kim Pearson addresses some of the family law issues:

Our original posts elided the issue of the mother’s rights to make decisions about the child, and several of the comments pointed out her invisibility.  Her role is as complicated as the father’s and subject to nearly the same level of media scrutiny, albeit in a much more positive light.  There are a few things that are worth mentioning about the media representations of the birth mother, Christina Maldonado.  Something that troubles me is that the media casts Maldonado as the smart, loving, heroic birth mother who willingly relinquished her child to a better life because she couldn’t afford to raise the child.  I have no idea if that was her actual thought process, but the media represents her choice as being a combination of love for Veronica and economic reality. 

This version represents the all too familiar narrative applied to many women of color and low-income women who relinquish their children to higher income “ideal” couples.  Many other feminist scholars have thought about this and cover it well, particularly when looking at the transfer of children worldwide in the aggregate, where poor women often believe that they can’t be good parents because of their income status.  If you want to know more about this work, a good place to start is with Laura Briggs’ book, Somebody’s Children, a critique of transracial and transnational adoption.  Kim Park Nelson, who did her dissertation on Korean American adoptees, discusses birth mothers here who don’t believe they’re worthy parents because they are poor. 

If a woman does not wish to raise a child, I completely support her decision to relinquish the child to the other biological parent or adoptive parent(s).  However, if she is relinquishing because she has internalized the belief that being a person of color, low income, single, or generally non-normative and thus an inferior parent regardless of how much she loves the child, then that’s much more problematic.  In the earlier post, I was trying to draw a connection between mothers who are in this second category and Brown’s situation, not trying to erase Maldonado altogether.  Imagine a terrifying future for poor women where they are offered the choice of paying for their children’s costs themselves or relinquishing them.  To be clear, I’m not commenting on Brown’s ability to pay support or not, but pointing out the dangerous possibilities when this choice completely defines the meaning of parenthood for men and women. 

Some comments also expressed concern about the possibility of a law that would allow dads (or any parents) to change their minds about adoption up until the last second. I agree that a cut off time makes sense.  But, I worry that the media representations of Brown as a deadbeat dad obscured the fact that he was trying to do the things required to establish that he wanted to parent Veronica well before the adoption was anywhere near being finalized.  We never know until terminations of parental rights are properly executed and adoptions are finalized if people will change their minds.  That happens, but there’s a very strong bar to disturbing final adoption decrees. But, I wasn’t arguing for giving time for a change of heart up to the last minute. It’s not as though Brown was bursting into the courtroom as the Capobianco’s were finalizing the adoption.  Veronica was a very young infant when he began trying to establish and exercise his rights.  I want to disrupt the idea that men and women both know at the same time that they are parents and receive the same treatment in regards to decisions about terminating rights.

In practice, messing up a termination is bad, bad business because doing so results in personal suffering and malpractice suits. So, lawyers will often take the belt and suspenders approach to parental rights terminations.  Some counsel birth parents and have them sign and initial paperwork attesting to the fact they understand the process and legal significance of termination in addition to the termination paperwork itself.  Some require birth parents to appear before a judge to prove up the termination so that there is a record that the process and meaning of termination has been explained and voluntarily executed.

My critique is really about state law and seeming approval the Court gave S. Carolina’s formulation of fatherhood.  If Brown weren’t subject to ICWA and he appeared in court with evidence that he changed his mind before the adoption was finalized, that he didn’t understand fully the ramifications of signing a questionably legal document to terminate his parental rights, that he made good faith efforts to support the child, tried to place the child with his parents while deployed, and wanted to raise the child now –  all this evidence could have been viewed as part of establishing paternity.  Rather than framing his actions as infringing on Maldonado’s sole legal and physical custody of the child, it could have been the usual division of rights when a fit, biological parent seeks to establish a legally recognized relationship with a child.  Their disagreement about whether to place the child for adoption or grant him sole legal and physical custody would have been like other kinds of disagreement between birth parents and the fate of their children.  Birth parents frequently disagree about their children, so the state has to balance parental rights and children’s best interests.  A birth mother wouldn’t be forced to parent against her will.  If she wished to place her child for adoption and believed she had sole custody, she could place the child with the prospective adoptive parents.  Once notice of the pending adoption is served and if the birth father contests it, then the court would weigh the rights of the birth father (does he have any?) against the rights of the birth mother (does she really have sole custody?) and the interests of the child who has formed an attachment to the prospective adoptive parents.  

In Brown’s case, we have the possibility of a fit father who needed some time to come to terms with his existing fatherhood while his intimate partnership was dissolving.  As I stated before, I’m not giving him a pass for failing to help support Maldonado during the pregnancy and first months of Veronica’s life – that can be a difficult time in the best circumstances and she was struggling with the dissolution of the relationship, too.  But, I’m concerned about the apparent ease with which courts diminish the possibilities for men to become legal and functioning fathers because of media representations, masculinity norms, and difficult legal standards. 

I don’t think taking an approach that gives men the possibility of acting before adoption proceedings are finalized would destabilize the entire process or infringe on women’s rights to make determinations about adoption. There are also processes in place to prevent women from being in limbo indefinitely if a birth father does not wish to sign a consent for termination; it’s not as if women have no recourse.  There are deadlines and standards in place for demonstrating an active interest in establishing paternity and custody of a child.  In response to the concerns about men without educational attainments, I agree that they are vulnerable. I worry about parents who do not understand the culture.  There are several accounts of international birth parents who thought adoption meant something more like foster care, and they signed away their rights to their child.