Baby Veronica, Again: Still a Feminist Issue

What are the conditions under which a biological parent should lose rights to their children, and how much should marriage matter in determining that? Does it make a difference whether the child is eligible for enrollment in Native nation or not? And, finally, should the court consider the best interests of the child in determining placement?

These I think are the significant points of disagreement between me and those who have argued that it is a feminist position to defend Matt and Melanie Capobianco’s right to adopt Veronica. I would argue that the Baby Veronica case is not a “birthmother’s rights” issue, that birth mothers’ preferences should not always be determinative in disputed stranger adoptions.

Several things have happened since I wrote my post that should be updated. First, of course, the Supreme Court found that ICWA did not apply in this case. In my previous post, I made an argument about why I thought that it should. That point is now mooted, as the law is whatever the Supreme Court says it is, unless Congress changes it. The biological father, Dusten Brown’s parental rights were terminated by the finding that ICWA did not apply, and the fact that the would-be adoptive parents live in South Carolina, a state that for purposes of adoption does not recognize men as fathers unless they are married to the mother or meet other stringent criteria (although if an unmarried mother seeks TANF—welfare—in order to keep her child, the state will recognize him as a father, force him to pay child support, and deduct his presumed contribution from her eligibility for benefits. But I digress. The state is not required to treat families trying to keep their children fairly.) I would disagree with those who have suggested that treating fathers as parents was an “unintended” consequence of ICWA, but those who want to know more about the history of ICWA can look to my book, Somebody’s Children, which details both the decade-long fight for its passage and the long history subsequently of it being misunderstood and more often ignored than enforced. Suffice to say that 35 years after ICWA passed, the rate of Native kids being placed in adoptions and foster care is still more than double that of kids from other groups. That should raise political questions about whether the courts should be placing any limitations on the scope of ICWA.

Many legal experts and Native advocacy groups expected that when the Supreme Court remanded the case to South Carolina this summer, there would be a hearing on Veronica’s best interest. The SC court had previously applied a “best interest” standard when it denied the Capobianco’s petition to adopt her and ruled that ICWA applied. There was, however, no new hearing on best interest. Instead, a divided court ruled 3-2 that since Christina Maldonado had relinquished her rights to her daughter, and since Dusten Brown was not legally related to Veronica since he did not materially support her birth mother during pregnancy, there was no impediment to issuing a decree granting an adoption to the Capobiancos.

But whether or not that stands up as a legal argument (and we will see what happens), it makes no sense socially or morally to treat the Capobiancos as having a standing in this case that Brown is not entitled to. Before the Supreme Court case, they were legal strangers to her. Veronica’s biological father has been caring for her for the last two years, and taking her from a biological parent who wants her, who seemingly and presumptively has, as the South Carolina Court predicted when granting him custody two years ago, kept her “safe, loved, and cared for,” in favor of the Capobiancos seems to be only about their wealth and privilege. The court’s failure to consider Brown a parent, to simply act as if he had no standing at all in the debate over whether she should be adopted by a couple in South Carolina, precisely exemplifies why I think this case is alarming, and why ICWA was passed in the first place. It was one thing to make that argument when she was living with the Copobiancos and had never met Dusten Brown. But it seems quite another two years later, when she has been living with him all this time. He is, quite meaningfully, a parent to Veronica.

Supporters of the Capobiancos continue to argue about what happened during Maldonado’s pregnancy, but at this point, that’s a little disingenuous. Maldonado’s lawyer, weirdly, harangued Brown’s supporters after midnight on Facebook a few weeks ago, painting him as your basic deadbeat ex- who abandoned his pregnant girlfriend and turned up again later like a bad penny. Indian Country Today (which has otherwise had really exemplary coverage) described her as a bad mother who had lost her other two kids, someone with significant financial problems who had refused financial help from Brown, gotten a lot of money from the Capobiancos, and bought a fancy new SUV. Yuck. I’m more than willing to stipulate that for neither of them was this their finest hour. Nor is anyone asking whether you or I or anyone has to admire them or like them. The only question is whether they ought to be granted the same wide benefit of the doubt that all parents who do not beat or extensively neglect their children are given.

As an adoptive parent myself, I feel for the Capobiancos, who grieve a child that they raised for two years but where not able to adopt when they took her to court at 2. It happens sometimes, and it’s hard. But as someone, too, who mourned with my daughter her sense of loss over her birth parents, I wonder what they think is going to happen when Veronica turns 12 and Googles herself. Or even 7, much less 18, 21, 35. For most adoptees, especially older ones like my daughter or Veronica, who will be four in September, adoption is about loss as well as gain. To some extent, that’s because of how we in the U.S. structure it: you can have only one set of legal parents. If the adoption goes through, Veronica will get a new birth certificate; it will be as if Dusten Brown had never existed. My daughter was taken from her birth family at 2, and again at 4, following a finding of abuse. Today, at 25, she remembers that vividly, and her sense of abandonment—even though she was literally taken away in the middle of the night and ripped from her mother’s arms—still haunts her, even though we have a close and loving relationship, and, if pressed, she would say that her “real” parents are the ones who raised her. I don’t know what I would’ve said to her in the face of her longing for her birth family if the facts were different—if she had been safe and well-loved, but I took her because I wanted a child to raise as my own. If that were the case, I sincerely hope and believe I would’ve stepped aside. Every adoption begins with a tragedy, a crisis, someone’s grief, including, often, the child’s. Why would we socially engineer that for no reason except that the Capobiancos want to raise her?

In addition to the speculative question of how Veronica will feel as she grows, there is the broader context of adoption, which this case seems to reinforce the worst aspects of. People who lose children to adoption are almost always poor, Black, brown, or Asian (or the teenage daughters, sometimes, of white evangelicals, who have treated adoption sometimes as a position in a culture war, as the Nightlife Christian adoption agency and lawyer Paul Clement seem to have in this case). People who adopt are wealthy, generally from the U.S., Western Europe, Australia, or Israel, and usually but not exclusively white. In short, adoption follows gradients of power, wealth, and privilege. In the 1950s and sixties, those who relinquished children for adoption were generally young, dependent white girls (other groups’ children were generally considered un-adoptable). In the early 1970s, as soon as white girls started to be able to make enough with their own wages to minimally (even miserably) support their children as single parents, they stopped placing their infants for adoption. Since then, the faces of those placing children for adoption has gotten darker and poorer, are more often from the global South, and those adopting have gotten wealthier. As international human rights treaties have demanded more transparency in where those Guatemalan and other overseas children have come from, or given their birth parents more rights to contest those adoptions, the “supply” of these children, too, has begun to dry up (and as political events make adoption an issue). The whole edifice of adoption as a massive, rather than occasional, practice has relied on finding more and more powerless people to provide adoptable babies and children.

It is a mistake, I think, for feminists to look to a dispute between a working-class father in the military and an impoverished and desperate mother and say, let’s take up this woman’s particular cause and call it a women’s rights question. Because overwhelmingly, the people who suffer when it is easy for wealthy strangers to adopt and difficult for birth parents to mount an effective legal challenge are women. In the original fight for ICWA in the sixties and 70s, it was birth mothers who had lost their children who provided the testimony that made Congress initially take notice of the crisis of people taking children from Indian Country. It has been birth mothers—and adoptees—who have campaigned for open records and greater legal protection from would-be adopters. This is not an anti-feminist “father’s rights” case. This is a case about whether poor people of color are going to have meaningful protection of their rights as parents.

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  • Lorraine Dusky  On September 2, 2013 at 10:12 am

    Good job. Though I lived through just what you said–gave my child up in 1966–it is reassuring to read an adoptive mother who has been through the emotional turmoil you have and who also understands and writes about the great disparity between the have and the have nots, and who supplies the babies, and who gets them. The Christian right and their determination to promote adoption and stop abortion are doing a great disservice and great harm to the teens who they insist must give their babies up. In a few generations hence, they will be the ones writing blogs and talking about the harm their parents did in the name of “god’s way” and other claptrap.

    In the meantime, we wait and worry about Veronica.

    I do have a question: What possible standing can the Cherokee court have against the decision of SCOTUS? If they decide that the girl belongs with her father, what then? Will there be a stand off?

    • Laura Briggs  On September 3, 2013 at 5:43 am

      Thanks Lorraine! It’s all a little murky at this point–there are competing claims about jurisdiction. As I understand it, the Cherokee Nation is taking the position that it has standing in all of this separate from Dusten Brown. That is–ok, fine, he’s not the father you say, but Veronica is still a member of the Cherokee Nation. They have a point. Some have suggested that there may have to be a separate Supreme Court case on that issue. But even if that claim falls, there is a separate question of whether an Oklahoma state court or South Carolina state court should have jurisdiction. SC ruled as if they did, but there’s no good reason to think they did have jurisdiction–the Capobiancos are legal strangers to Veronica (there was no adoption, as you know, despite what the press keeps reporting), and Veronica resides in Oklahoma.

      Right now, what we know is that following a hearing in Cherokee tribal court, a sealed mediation agreement was filed in Oklahoma state court, and both parties have been forbidden to speak to the press. This seems like a good thing after all the media nonsense that the Capobiancos tried before–dragging a camera crew onto Cherokee land, trying to get the star of “The Locator” to snatch Veronica on the strength of the decree by the South Carolina court granting them an adoption.

      And yes, I know there are plenty of adoptive parents who don’t “get it” about the politics and inequalities of adoption. But lots of others of us do:)

  • Maureen Fielding  On September 6, 2013 at 12:43 pm

    Dr. Briggs, As an adoptive mother, a graduate of UMass, and an associate professor of Women’s Studies, I want to say thank you for your insightful analysis of this situation. I’ve been following this closely, but I’ve been discouraged that more academics have not weighed in on this. It boggles the mind that in 2013, despite the publicity about corrupt adoption practices, this can still happen to a fit and loving birth parent and educated people can still do this to a fit and loving birth parent.

  • kym  On September 6, 2013 at 2:54 pm

    Thank you, Dr. Briggs, for another excellent piece.

    You already answered my question in your comment – I believe too that ICWA still applies to Veronica, no court ruling has said otherwise.

    The other correction I want to make is the adoption agency in SC is NightLIGHT Christian Adoptions

  • Maybell  On September 7, 2013 at 6:49 am

    Appreciate thiis post. Let me try it out.


  • By Posts I enjoyed… | The adopted ones blog on September 1, 2013 at 11:02 am

    […] The author of “Somebody’s Children” Dr. Laura Briggs has a new post up that also brings different thoughts to the same case.  Baby Veronica, Again: Still a Feminist Issue  […]

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