Tuesday, April 16, 2013

Defining parentage under the Indian Child Welfare Act -- why it matters

The Supreme Court will rule in a family law dispute this term, an unusual enough circumstance.  This one is in federal court because of a federal statute -- the 1978 Indian Child Welfare Act.  ICWA is an important statute, designed to reverse the shameful practice of removing Native American children from their families and placing them for adoption with White families.  The most important fact to remember here is that Indian tribes have a type of sovereignty no other sub-group of our population possesses, and for good reason.  We (the United States) did steal their land, and the little bit of sovereignty we allowed them through various treaties is all they have left of what was once theirs.  One of the most important provisions of ICWA says that for children whose parents are domiciled on a reservation, the tribal courts, not state courts, have the authority to decide who adopts a child those parents place for adoption.  That jurisdictional provision of ICWA is not at stake in this case.

Instead, the case is a conflict between the decision of the child's non-Indian birth mother, Christy Maldonado, to place her child for adoption with a couple, the Capobiancos, in South Carolina, and the subsequent claim of the biological father, Dusten Brown, a member of the Cherokee Nation who wants to raise the child himself.  Every state has specific statutes designed to identify those unmarried fathers whose consent to an adoption is required.  Without such statutes, precious time could pass without placing the child in a permanent home while agencies tried to track down anyone who might be the biological father, and men with nothing but a biological connection to the child could undo an adoption on that basis alone after a child was fully embedded within her adoptive family.

The critical fact for this case under South Carolina law is that Dusten did not live with Christy for the six months prior to the child being placed for adoption and did not support the child or pay for any expenses connected to Christy's pregnancy.  If he had met one of those criteria his consent to the adoption would have been required.  But he didn't.  The US Supreme Court has to decide whether a biological father who is enrolled in an Indian tribe need not meet those requirements.  ICWA does indeed define a parent by biology with no qualifications, except that it reads that "it does not include the unwed father where paternity has not been acknowledged or established."  Of course Dusten did acknowledge and establish his paternity, but not until the child was four months old and he realized the child had been placed for adoption.  While Christy was pregnant, Dusten told her in a text message that he would surrender his parental rights rather than pay child support, but he says he thought he was surrendering his parental rights to her, which made sense to him since he was about to deploy for Iraq.  He says he didn't realize the child was going to be adopted until he received papers to that effect when the child was four months old (and had been with the Capobiancos since birth), at which time he got a lawyer to fight the adoption and got the Cherokee Nation involved as well.  He doesn't come off well for implying (or flat out stating) that he didn't want to pay child support, but that won't matter if South Carolina law is inapplicable to Indian fathers.

Here are the things I am keeping in mind about this case.  Dusten is not challenging the South Carolina law.  He is not trying to expand the constitutional rights a man has to raise a child based on biology alone.  This is important.  Lesbian couples often use known donors to have a child.  State laws do vary on this (and in some places there are no laws and no relevant case law precedent), but Supreme Court cases establishing constitutional principles do make clear that biology by itself is not sufficient to create a constitutional right to raise a child.  In an important Kansas case some years ago, the Kansas Supreme Court upheld the constitutionality of a state statute that a semen donor was not a legal parent absent an agreement in writing with the recipient to the contrary.  There is no danger that the current case involving ICWA will produce a constitutional ruling that throws a decision like that into question.

On the other hand, the brief of some law professors I greatly admire, who are supporting the father, includes a sentence that "children deserve to grow up with their biological parents when it is possible and safe for them to do so."  This is precisely the kind of thinking that leads courts to rule against nonbiological mothers and fathers who have raised children with a same-sex partner.  It is also the kind of thinking that can accord a semen donor parental rights over the objection of a lesbian couple who were expecting to have the authority over their child's life. I suspect those lawyers support same-sex couples raising children.  But when I see a sentence like that in support of the father I blanch.

Even outside the context of same-sex couples raising children, I think a woman who bears a child is entitled to maximum flexiblity in making plans for that child. She can, after all, have an abortion.  If she chooses adoption instead, when she has reason to believe she won't get support from the child's biological father or when he's the kind of guy she is pretty sure will not be a good parent, she should be able to effectuate that plan.  Every state gives an unmarried father the right to raise his biological child if he fulfills certain basic requirements.  Dusten was still in the country when this child was born.  He wasn't there.  He thought his text message meant he was surrendering his rights to Christy.  Well, he must have really meant he was walking away since he made no efforts to find out anything about the child after she was born.  Christy wasn't hiding.  Dusten doesn't allege that she was.  There are cases of men who assert they want to raise their child, who make it clear to the pregnant woman that's what they want.  Dusten isn't anywhere close to that category.  The law in South Carolina gave him a fair shot at being a father and he blew it.  His regrets about that shouldn't amount to a basis for disturbing an adoptive placement.

But, I keep in mind that tribal sovereignty is regularly under attack from the right.  ICWA is sometimes characterized as racially discriminatory because it mandates a preference for adoptive placement with a tribal member or a member of another tribe before placement with a non-Indian.  That characterization, however, overlooks the tribal sovereignty issue at the heart of ICWA. You can oppose restrictions on interracial adoption and still understand why the law can prefer placement of Indian children with Indian parents.  In addition, a minority of courts have narrowed the scope of ICWA to find that it only applies to a child already living in an existing Indian family (which this child obviously was not).  The adoptive parents in this case are asking the Supreme Court to interpret ICWA in that narrow way.  That would be wrong.

When I ran the facts of this case by my (not a lawyer) partner, who has a percentage of Indian blood but is not, nor was her mother, an enrolled tribal member, she wanted to know whether the father was actually connected to his tribe.  I realized that I had not flagged that as a relevant issue so I looked more closely at the facts in the South Carolina Supreme Court opinion.  That opinion relates part of the home study done in the case and demonstrates the connections of the father's parents to tribal customs and cultural practies.  That was enough for my partner.  It satisfied her that placement with the father was really going to connect the child to her Cherokee heritage and that this isn't a situation where ICWA amounts to a "loophole" getting rights for a biological father who initially showed no interest in being a parent.  News reports mention the father's miniscule proportion of Indian blood (and so the child has even less), but the Cherokee Nation says he is Cherokee and that has to suffice.  Every tribe has its own definition of who is eligible for enrollment as a tribal member, and it is certainly not the place of anyone outside the tribe to question that.

There are other specific details of what was and wasn't done when this child was an infant concerning the tribe.  For example, the child was born in Oklahoma and the adoptive parents (who were present for the birth) needed paperwork to take the child back to South Carolina with them.  That paperwork did not identify the child as an Indian child.  Had it, the tribe says it would have blocked removal of the child from the state.  Also, the mother did report the father's Indian background but a check with the Cherokee Nation showed him not a tribal member.  Problem is, his first name was spelled incorrectly and his date of birth was incorrect.  Deliberate or accidental?  I don't know.  It does mean everyone acknowledges that rules governing Indian children had to be taken into account in the first instance.

But here is another fact that troubles me.  I feel for the adoptive parents, who had been unable to have biological children.  I'm an adoptive parent.  They knew the father had texted his willingness to surrender parental rights and really didn't think he was going to be a barrier to the family they were creating with their daughter.  But they found out the contrary when she was four months old.  They did have the option of turning her over to Dusten at that point and chose not to.  They made an open adoption arrangement with Christy.  I wonder if they tried this with Dusten.  Were they full of love for this child?  Of course.  Reluctant to put themselves through the pain of giving her up?  Of course. Scared their dreams of a family with children would be dashed forever? Of course.  But now the talk is how the South Carolina Supreme Court ruling took a 27-month-old child away from the only parents she had ever known.  If that's what tips the equities towards the Capobiancos, aren't we encouraging other possible adoptive parents to keep litigating when they should actually minimize the heartbreak all around by returning the child to a biological parent who stands a good chance of winning?

Here it is, almost 1:30 pm on the day of the oral argument, which ended two hours ago. ScotusBLOG has just posted its recap of the argument. I can't find any news reports yet about the argument.   What a constrast to last month's same-sex marriage cases.  It may mean just that the public is less interested in Native Americans than in gay people, but I consider that a sad commentary.  We aren't undoing the warfare and land grab that displaced Indians from their homes, but ICWA takes a shot at undoing the efforts to obliterate tribes by stealing their children.  I take it very seriously.  I hope the Court does also.


Rebecca Herman said...

I understand the reasoning behind ICWA, but I find its application to mixed children disturbing - by this I do not refer to low blood quantum but to children who have a non Indian parent, such as in this case. By saying such children are the Tribe's, in my view the law is basically making children into some kind of reparation for the children the Tribe lost. A humanclare being is not a reparation. Under this interpretation, a father can pull a bait and switch to end up with sole custody, which is also troubling. Such a father could even hide his Tribal membership. The results achieved under an interpretation of this law, an interpretation that would give fathers all the rights and none of the responsibilities, that would declare that children of mixed relationships are the Tribe's children with no regard for their other parent's heritage, is to me just as morally indefensible as the situation that prompted this law in the first place.

Rebecca Herman said...

Oh, and one other point I would make - if the Supreme Court goes with an interpretation of the law that would allow a deadbeat father to manipulate the situation like this just because he is Indian, then the mother really ought to get her rights restored as well. She gave up her baby after the father said he'd rather give her up if it meant he'd have no responsibility for her. To reward a father who does that with sole parental rights is really pretty sick.

Nancy Polikoff said...

Thanks for your comments. Your second point first...I totally agree, if that's what she wants. As for your first point, I agree as to prospective fathers in general, but I do think it is different when the father (or mother) is a tribal member. The tribe does get to say who counts as a member of the tribe, just as countries get to say who their citizens are. If the mother had decided to keep the child, the child would still be eligible to be a tribal member through the father, who presumably would have had visitation rights (and the obligation to pay child support no matter what his text said!). This issue arises because the mother made the decision not to raise the child. If the ICWA rules had been followed in the first place, the child likely would never have gone to live with these adoptive parents. I understand you may want to scrap ICWA entirely, but I can't agree with that, even for children who have one parent who is not at all Indian.

Rebecca Herman said...

No, I don't want to scrap it entirely, but yes, I disagree with it when one parent isn't Indian. It totally erases the heritage of one parent from all considerations - that parent was just a vessel or sperm donor (depending on if they were female or male) to provide the Tribe with a child to pass traditions on to. Why is it the job of the mixed child to replace the child lost years ago? The Tribe is not the only entity or culture or community with an interest in that child. I am curious why you think such a child should be placed with the Tribe most of the time if not to make up for lost numbers? Yes, countries determine who their citizens are - but generally don't inflict laws on citizens in other jurisdictions. No one forced this man, or any other Tribal member in a mixed relationship, to have such a relationship in the first place. That's why Russia gets to decide international adoptions, but has no say if a Russian moves to the US, has a child with an American, the child is born in the US and never lives anywhere else, and is given up for adoption in the US, US law would apply, would it not? Russia can't say "we're coming to take this kid back to Russia or at least make sure a Russian American family adopts them."

Ultimately, I just feel a non Indian parent, non Indian land, they should be able to count on the child's other parent having the same legal responsibilities as any other American citizen, and if that parent refuses those responsibilities (and this isn't one of those awful cases like in Utah where the dad files and gets paternity in the home state so the mom runs off to take advantage of Utah law) the parent left with the child should get to decide on their own. I get that you disagree, but I don't think that my viewpoint is unreasonable or racist (like some who support ICWA would say) - I'm just curious why you think it's so important the tribe gets racially mixed kids,

And I am concerned with why she decided not to raise the child, since the father's words and actions certainly could have contributed. Most of the articles and court documents indicate the mother was struggling financially and was a single mother of two children from previous relationship(s). If she was having a hard time financially with the children, that indicates that first, she probably didn't make much money, and second, she either was having a very hard time getting child support enforced, or the father(s) simply did not have the money - which may have led her to not have much confidence she'd get support this time around either?