Archive for June, 2013

The Baby Veronica Case: Call It Anything, But Not a Win

In the entirely justified celebrations that have followed the Supreme Court’s striking down of the Defense of Marriage Act, another, less well-known case has gotten lost in the shuffle.

On Monday, the Supreme Court held that the Indian Child Welfare Act (ICWA) does not apply to a case where a part-Cherokee child’s biological father never had custody of her, and no Cherokee relatives stepped forward to adopt her before she was adopted by a family with no Cherokee heritage.

The birth father, Dusten Brown, is a member of the Cherokee Nation under that tribe’s rules regarding who can be a member. The birth mother, Christy Maldonado, is not Native American. Maldonado got pregnant while engaged to Brown, but the couple broke up. Brown did not support Maldonado financially during her pregnancy, and the two had an exchange of text messages (before the baby was born) in which he said that he would consent to the adoption. When he was notified that adoption proceedings were pending, he signed a consent before meeting with a lawyer. Once he had met with a lawyer the next day, he immediately attempted to revoke his consent, oppose the adoption, and gain custody of the child.

A few things jumped out at me about this case. I have always thought that ICWA as applied to private adoption is a terrible idea. The statute was designed to prevent abuses (very serious ones, and still ongoing from what I understand) where the state was removing Native American children from their homes and placing them in foster care when no abuse or neglect had taken place. A huge, disproportionate number of Native American children were removed this way, and in the 1970′s it was egregious enough that they passed a Federal law to try to prevent it. The explicit purpose of the statute is to prevent children from being removed from their families against the will of the parents and without sufficient cause. I personally (and there are many who disagree with me) don’t see how the purposes of the statute are served by allowing tribes to intervene in adoptions, where state laws protect the parents’ rights without respect to race. If the parents want the child to be adopted, why involve the tribe? I’m uncomfortable when race comes into cases where it really doesn’t belong.

That being said, I’m very troubled by the fathers’ rights issues implicated in this case. This is a dad who intervened in the case as soon as he learned that an adoption was contemplated. Granted, he wasn’t exactly a standup guy during the pregnancy, but it’s not clear from anything I’ve read that he was ever even notified when the baby was born. The court made much of the fact that he had not supported the birth mother financially during her pregnancy, and that indeed his lack of support may have been a factor in her decision to place the baby for adoption. However, there’s so much that we don’t know about why that was. If the birth mother told Dad to eat dirt and never contact her again, that sheds a very different light on his lack of support, in my view. Be that as it may, as soon as Dad got notice, he objected. The Supreme Court states in its opinion that he would not have had the right to intervene under South Carolina’s law; ICWA was the only reason he was still in the case at all. This says to me that South Carolina’s law does not adequately protect fathers. I feel similarly about our laws here in Virginia, where I practice. The law doesn’t give good-faith fathers much of a chance, and that is wrong. Of course, only ICWA, and not father’s rights in general, was the issue before the Supreme Court in this case, so they could not have ruled on that ground.

But the Court also made much of the fact that ICWA was designed to prevent the “breakup” of Indian families, which it interpreted to mean that a child should not be removed from an intact family. Are we to believe that keeping a father who wants to parent his daughter from doing so does not count as the “breakup” of a family, merely because he never had custody? He wanted custody! He just was unable to get it in South Carolina’s courts.

I read a post on an adoption forum where someone stated that the Supreme Court’s verdict was “a win for the best interests of the child.” Wrong. Veronica spent the first two years and three months of her life with her adoptive parents, then went to live with a father who was a total stranger to her. How the South Carolina court came to the conculusion that this wasn’t clearly detrimental to the best interests of the child I have no idea, but it’s completely unsupported by child development science. Separating a two-year-old child from the only family she has ever known is an inevitable recipe for an attachment disorder. But (big But!) at this point, she has been with her father for 18 months. If she is indeed returned to the adoptive parents, that is not a “win.” It’s a tragedy no matter how you slice it.

I agree with the majority insofar as I think the purposes of ICWA are more geared towards keeping children in intact families, not in disrupting adoptions where everyone has consented properly under stat law. But I am troubled that state law in SC gives dad so little opportunity to exercise his rights. Most of all, I hope that these parties can come to their damn senses and agree do what is right for the child, which is most probably for her to stay right where she is rather than have her life turned upside down yet again.

Do you have more questions about adoption? Contact The Vaughan Firm to speak with an adoption attorney.

A Victory for Love in the DOMA/Prop 8 Case

Congratulations to my clients who are same-sex couples on this beautiful victory in the Supreme Court today. It is still unclear how this change will apply, particularly to those who live in states where same-sex marriage (and adoption) is still illegal (including my home state of Virginia). There is still so much work to be done to obtain equality for families and children in this country. However, today’s ruling is a huge step forward.

I am especially excited by the Supreme Court’s explicit ruling that same-sex marriage is beneficial for children. My practice is centered on children, and I know that aside from simply being the right thing to do, marriage equality protects children by giving them two parents with equal rights and responsibilities, as well as making more families eligible to foster needy children and adopt them from foster care. Justice Kennedy wrote that DOMA “humiliates tens of thousands of children now being raised by same-sex couples.”

I am a straight child-welfare lawyer in an egregiously discriminatory state. I believe in the equality and dignity of all people before the law. I believe that all loving families are beneficial for children. If you are a GLBTQ person with a child-related legal issue, I make you this pledge: I will help you make it through this shameful period in our nation’s history. Take heart — it is getting better.

This is so great — and there’s still so much to be done! Let’s celebrate and then get back to work.

Do you have more questions about adoption? Contact The Vaughan Firm to speak with an adoption attorney.

In Finland, a Complete Newborn Kit – Just Add Baby!

From the “great ideas” department, I just learned from this article that in Finland, every expectant mother gets a “maternity package” – a box containing diapers, bedding, clothing, bathing supplies, outdoor gear, and a picture book. The box that it comes in has a small mattress in the bottom so it can be baby’s bed. Expectant mothers who visit a doctor before their fourth month of pregnancy have a choice between the box or a cash grant of 140 euros (about $186), but most choose the box, because the contents are more valuable. Why give the box during pregnancy, rather than when the mother is discharged from the hospital? It encourages expectant mothers to get obstetrical care during pregnancy. Not surprising, then, that Finland has one of the lowest infant mortality rates in the world. What a smart way to give babies the right start in life!

Another thing I love about this idea is that it highlights how very little babies truly need. While the baby-stuff industry would like us to believe that babies need wipe warmers and head bows and crib bumpers and singing night-lights, the truth is that all babies really need is milk or formula, something to wear, a safe place to sleep, a little wash now and then, and lots and lots of love.

Do you have more questions about adoption? Contact The Vaughan Firm to speak with an adoption attorney.

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