Feminists and the Baby Veronica Case

Image

Dusten Brown, Veronica, and Brown’s wife Robin. Photo by John Nichols

by Laura Briggs (reposted from guest blog for NCROW)

The “Baby Veronica” case (Adoptive Couple v. Baby Girl) currently before the Supreme Court is many things—a case that could undermine a great deal of federal Indian law by attacking the Indian Child Welfare Act (ICWA); a story about the stupid, mean things a couple will do to each other when they break up; and a sad story about a little kid who, at four, spent the first two years of her life with would-be adoptive parents and the next two living with her bio-father, his wife and other children. It’s also a story about the conservative right’s uses of marriage and its adoption crusade. What it’s not is a case that feminists have been on the right side of.

Facts

First, the facts, which have been widely misreported. In December 2008, Dusten Brown and Christina Maldonado were engaged; in January 2009, she became pregnant. She lived in his hometown, Bartlesville, OK, near his parents, but as he was active duty military, he lived four hours away at Fort Sill. On learning of her pregnancy, he began to press her to marry; she refused, and in May, they broke up. In an effort to get her to reconsider, he said, he refused to support her and said he wouldn’t pay child support, either. She told him he would have to relinquish his parental rights to her. Meanwhile, without his knowledge, she contacted the Nightlife Christian Adoption Agency (yes, you have heard of them—George Bush publically thanked them for pioneering “snowflake adoptions” of cryopreserved embryos, which they call “pre-born children”). With Nightlife’s assistance, Maldonado selected a couple in South Carolina to adopt her child, a state (not incidentally) that has laws very unfavorable to birth fathers—in order to have standing in an adoption case, fathers must have lived with the birth mother for at least six months prior to the birth of the child, and to have provided financial support, neither of which Brown had done.

There was, however, a potential complication, as Maldonado told Nightlife: Brown was Cherokee, which might have made the venue for any adoption Cherokee tribal court in Oklahoma, not South Carolina. Nightlife contacted the Cherokee Nation, but the agency misspelled Brown’s name and gave a wrong birth date for him. As a result, the Nation could not verify that Brown was Cherokee or that the baby was eligible for enrollment, and did not block the removal of the case to South Carolina. Baby Veronica was born in September with the would-be adoptive parents—the Capobiancos—present, but Maldonado told the hospital to deny she was there if Brown called. Four months later, less than two weeks before Brown was to be deployed to Iraq, the Capobiancos’ lawyer sent a process server with relinquishment papers. Thinking he was relinquishing to Maldonado during his deployment, Brown signed a form entitled “Acceptance of Service” but immediately asked for the paper back, saying he wanted to talk to an attorney. The process server threatened him with criminal prosecution if he touched the paper. Brown consulted an army attorney, and filed a stay of the adoption in South Carolina, establishing paternity, seeking custody (offering to place the baby with his parents until he returned from Iraq), and promised to support Veronica. The Cherokee Nation also intervened, identifying the father as a registered member and saying that ICWA applied and had not been followed. Adoption proceedings were halted, although the baby stayed with the Capobiancos. When Brown returned from Iraq in 2011, two South Carolina courts found that ICWA applied, that Brown had not consented to the termination of his parental rights and there never should have been an adoption case, and awarded custody of two-year old Veronica to Brown.

At that point, the Capobiancos and Nightlife got considerable attention from the Evangelical Christian right, and “Save Baby Veronica” websites and petitions popped up all over. Enter Paul Clement, patron saint of conservative causes at the Supreme Court–defender of the Defense of Marriage Act, leading the charge against Obama’s expansion of health care coverage, staunch defender of Arizona’s immigration law, and the mouthpiece of the Bush administration in torture cases. Clement also currently represents a non-Indian gaming client who wants to put a casino in New Bedford, Massachusetts, and is arguing that the state law on Indian gaming amounts to an illegal racial set-aside. This may be the real key to the Baby Veronica case—if conservatives are successful in gutting ICWA, much Indian law will also fall. Not for the first time in U.S. history, the successful claim by Native people on a resource—the lucrative gaming industry—is under full-scale legal assault.

 Baby Veronica Case Goes to the Supreme Court

Clement successfully brought the Baby Veronica case to the Supreme Court, making a series of interrelated arguments. First, his brief insists that Brown is not legally or meaningfully a father because he and Maldonado were not married. For me, as a lesbian mother who raised a child in Arizona where I could not adopt her because her other mother and I were not married, this argument terrifies me. Second, he makes an old (and racist) blood quantum argument, saying that the child is “really” Hispanic, because she doesn’t have a sufficient fraction of “Indian blood” to count—a point on which the Cherokee nation begs to differ. Finally, he says, ICWA is a law that gives unfair racial preferences to Native people in adoption and custody cases. In this, he is following Antonin Scalia, the Supreme Court Justice he clerked for. Scalia, commenting on Baby Veronica, said that the most wrenching case he ever decided was Holyfield, where he had to “turn [a] child over to the tribal council,” removing it from a “wealthy rancher” in an ICWA case. This is a strange description of Holyfield. What the Court actually did in Holyfield was determine that the jurisdiction for the adoption would be tribal court, much as it might find that one state rather than another was the proper place to hear an adoption or custody case. In Holyfield, the “wealthy rancher’s” family in fact adopted the children (there were twins); the tribal court found it was in the children’s best interest. This is a crucial point: ICWA does not determine who gets a child. It determines jurisdiction–who gets to decide who gets a child.

Jurisdiction matters a lot in adoption. State laws vary widely, and many Sunbelt states (plus Utah), are known as “easy adoption” states where Christian adoption agencies, in particular, often relocate pregnant women because they, and the birth fathers, have few rights there. ICWA is the only federal law that offers birthparents rights in adoption cases, so that enrolled members of Native Nations, at least, have uniform and enforceable rights. The jurisdiction is always tribal court, and the law is consistent.

As I have argued elsewhere, ICWA does not provide special “racial entitlements”; it treats (some) American Indians as having a distinct political status conferred by treaty rights. In fact, in 1974, the Supreme Court ruled on this very point. In Morton v. Mancari, the court held that Native people could be treated differently from non-Native people, not because they belonged to a distinct racial group, but because tribal nations are “quasi-political entities” whose status is determined by federal treaty. Being the parent of a child eligible for tribal enrollment is not a “race.” People otherwise identifiable as Native may have children that are not ICWA-eligible because they belong to a non-recognized or terminated tribe (of which there are about 200 in the United States), because of arcane blood quantum requirements, or because they are indigenous but from Latin America, Canada, or Hawaii. Two, all ICWA does is give birth parents rights that many think they should have regardless, and often do. If the Baby Veronica case had been in Massachusetts, for example, Dusten Brown would be treated as a legal parent, and his daughter could not be adopted unless he either relinquished his parental rights or was shown to be unfit—the same standard as ICWA.

“Where is the outrage from women’s groups over this issue?”

“Where is the outrage from women’s groups over this issue?” asks a recent blog post on the Christian Alliance for Indian Child Welfare’s website, wondering why feminists are not angry about an unmarried father demanding a say in the placement of a child for adoption. I’d ask the same question, but with opposite intent. So far, the only feminist voices in this debate have been Joan Heifetz Hollinger and Elizabeth Bartholet, who support Paul Clement and Nightlife Christian Adoption Agency in their brief in the case, which argues for a standard some states have invented, that ICWA should only apply when it disrupts an “existing Indian family,” a standard that has been interpreted very narrowly—a married heterosexual couple living on a reservation. Why feminists would think that is a good idea, when 48% of children are born to single mothers, is beyond me.

Why Feminists Should Care

Here’s why feminists should care about this: it’s a racist case designed to gut federal Indian law. It’s a “states rights” case, which should haunt anyone who thinks slavery was a bad thing. It involves a high-profile cast of right-wing actors, from an evangelical Christian adoption agency to lawyer Paul Clement. Making adoption easy and giving birth parents and unwed parents few rights has been a conservative anti-abortion agenda for a long time. It’s time feminists noticed, and opposed it. When unmarried fathers are not really parents, unmarried mothers are vulnerable too, as when Newt Gingrich threatened to take the children of welfare mothers and put them in orphanages. If this case is successful, it would make it much easier for poor people to lose children, including against their will, which mostly affects mothers.

Correction August 15: Due to a writing mistake, the paragraph that begins “There was however a potential…” mistakenly said that Veronica stayed with the Maldonados. She didn’t. She stayed with the Capobiancos. Much has happened in this case since I blogged about it last May. Keep up with it at http://Indiancountrytodaymedianetwork.com/ and http://splitfeathers.blogspot.com/, among other.

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Comments

  • Alison Price  On June 3, 2013 at 6:12 pm

    Here’s why femminist should care about this: any loosely defined Indian biological father can force his wishes over the Mothers, even after he’s given up parental rights. YOU GOTTA BE KIDDING ME. I’m suprised Native American women put up with this crap from the Native American men. Quite the patriarchal set up. And the women take it?? I never knew they were so submissive.
    This case isn’t designed to gut ICWA , it’s designed to bring it up to date. ANd it’s not about who ‘gets ‘ the child. What ICWA is missing is what is in the best interest of the child.
    Let’s hope the Supreme Court can take the ‘ick’ out of ICWA.

    • Marsha  On July 20, 2013 at 1:38 pm

      Exactly! This boy did nothing to establish his parental standing and as your article admits he attempted to blackmail the mother into marrying him contrary to her wishes by denying child support. When she didn’t submit to his blackmail and arrange to have the child adopted he continued with the terrorist behavior.

      • kym  On July 28, 2013 at 2:31 pm

        He is her father, always was and forever will be. Unless he is dangerous for her, it is her fundamental right to grow up with him, knowing him, and seeing him. He is a part of her and nothing can take that away from her. No, he’s not perfect, neither is her mother, and nor are her pre-adoptive parents. But she has absolute rights to grow up with her biofamily and NO ONE has the right to take that away from her unless it would be harmful for her.

  • teddy1975  On June 6, 2013 at 11:48 pm

    The best interest of the child is being protected from having the legal recognition of her birthrights stolen from her by cheating lawyers and legal trickery. The mother abandoned her child, gave up all rights so the child could be adopted, at this point when the mother has voluntarily rejected her daughter, the biological father, gets the rights the mother had. If you abandon your child, you do not have the right to rob the child from her other parent too.

    • kym  On July 28, 2013 at 2:25 pm

      Thank you, teddy1975. You said my sentiments exactly and so concisely. The child is not unhappy nor unsafe with her father, her half-sister, extended family, and step-mother. She does NOT need to be adopted out-of-state to grow up with unrelated strangers.

  • zoozig aka lorraine dusky  On July 29, 2013 at 3:00 pm

    Thank you for this comprehensive piece on the case.

    Well, Jane Edwards and I, who write First Mother Forum, are certainly feminists, but because we are also first/natural mothers, this gets overlooked. I’ve blogged about this case a number of times.

    Incidentally, Bartholet is an old enemy of mine. She has never met an adoption she is not in favor of. I;m surprised she doesn’t urge that babies be picked up at supermarkets and handed out to better off parents.

    ‘Baby Veronica’ adoption will go forward

    and Adoptive parent shares thoughts on having returned a girl to her mother

  • Erin  On August 3, 2013 at 7:36 am

    From a feminist perspective, I am upset at the way Brown tried to trap his pregnant girlfriend into marriage by denying any financial support. This is the elephant that is being overlooked by all. Something made her not want to be with him, and when she rejected him, he told her he would not pay anything in child support or help her financially. Where is her side to this story. I think something is being left unsaid.

    • kym  On August 6, 2013 at 9:54 pm

      So, they had a spat perhaps. I don’t know and I don’t really care. This girl has a right to grow up with her people, her blood if possible. If one of her parents wants to raise her, has been raising her, and he shouldn’t have to fight with genetic strangers over custody of his daughter.

      • Heather  On September 3, 2013 at 3:25 am

        Exactly!

  • http:Trace A DeMeyer (@Trace15)  On August 9, 2013 at 12:07 pm

    The adoption agency is the key. They didn’t abide by federal law. Falsifying documents is a crime. I have more thoughts at American Indian Adoptees blog.

  • Felicia  On August 10, 2013 at 8:18 pm

    Well, where was this man and his “rights” when this mother was pregnant and needed help? He ignored his child for 4 months. Every idiot knows how long it takes to have a baby and he didn’t attempt to take her to court so he could see his kid? He should have never gotten any custody back.
    Indians should have to live by the same laws. He signed the paper. He didn’t know what the paper meant, but as soon as he signed it he tried to grab it??? Suddenly remembered how to read??? This story doesn’t sound right.

    • kym  On August 12, 2013 at 2:15 am

      felicia,
      no, your story doesn’t sound right. Have you read what the father says? Do you know that the mother had herself listed at the hospital as do not list, so that her ex-fiance couldn’t find her or their daughter.
      http://www.nativenewsnetwork.com/dusten-brown-baby-girls-father-speaks-out-i-did-not-abandon-my-daughter.html

      And the child shouldn’t be deprived of growing up with ALL of her bio relatives just because her mother didn’t want to raise her. And don’t tell me about open adoptions – they aren’t legally enforceable. In ANY adoption in most states, the child loses her LEGAL rights to know some basic facts about herself. Every other child has a legal right to their own factual history, except adopted people. There is no reason why this girl should be deprived of her supportive family and community to satisfy the needs of a couple who paid money for her.

  • Mo Flatley  On August 17, 2013 at 8:49 am

    Liberal feminists have allowed the adoption system to become the epicenter of hypocrisy in American public policy. While eagerly demanding careful and expansive federal regulation in a host of other areas from family planning to health clubs they (and esp the would be adopters among them) have become laissez faire libertarians when it comes to adoption. Allowing birth mothers and children to be exploited here and abroad they have actually fostered – not limited – bad practices they would excoriate in any other context. We need consistent, coherent national policies on adoption that gives women and children at least the same protections we currently accord to fish but not people.

    Thanks for framing this tragic case based on facts not hysteria.

  • Patty Hayes  On August 18, 2013 at 12:45 pm

    Thank you for this article. The reaction from many women to this case appears to be rooted in an unfair bias against unwed fathers and knee-jerk conclusions based on incorrect media accounts and erroneous statements by the Capobiancos. If, as feminists, we demand that society condemn men who use the legal system to manipulate and coerce women into forfeiting their rights, we must also be prepared to concede that some women do the same thing. And it is the children who suffer. I am reminded of the Elian Gonzalez case, when the far-right and their cohorts in the Cuban-American community, sought to keep Elian from being reunited with his father in Cuba. They were/are opposed to Cuba’s govt. and for that reason alone, they knew what was best for Elian. Your article has, hopefully, done much to dispel the misconceptions about the importance of baby Veronica’s case, and I urge feminists to take heed.

    • Julie Price  On August 23, 2013 at 5:25 pm

      Patty, You are mistaken regarding Elian. He was retuned to his father for the same reasons Veronica should be returned to the Capobiancos. His early childhood relationships and his early childhood world, were with his family in Cuba. He was not returned because his father was his biological dad. It was the quality of the relationship. I spent a day in NYC listening to the psychoanalysts, who advised the US government on Elian’s case, present their findings and their recommendations. Dusten was absent from Veronica’s life for the first 27, profoundly important, months. He callously removed her from those who provided love, care, and a good enough home for her. Biological ties do not guarantee good parenting. This case is
      not about adult rights, or feminism, (though I am a left wing feminist) it’s about Veronica, a vulnerable child and who can best care for her. Within an hour of meeting her, Dusten harmed her deeply. Why are so many of you overlooking this?

  • kym  On August 29, 2013 at 6:36 pm

    Many have accused Dusten of being a deadbeat. Here is a blog that includes the complete SC SC transcript about that. bit.ly/12N94ug

    Here’s also the complete SC SC cross examination of the birth mother: scribd.com/doc/163797058/BM-cross-exam

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