ICWA – The Law of Unintended Consequences

In a recent blog post on the National Council for Research on Women, Dr. Laura Briggs asserts that the feminist attorneys who sided with the adoptive father in the Baby Veronica case were misguided.  I disagree with Dr. Briggs’ assertion[1] that feminists are “on the wrong side” of the Adoptive Couple vs. Baby Girl case. The amicus brief Dr. Briggs cited, by Joan Hollinger and Elizabeth Bartholet, made the legal case that an “unwed mother with sole custody of her children should have a due process right to make decisions concerning her children”[2].  They noted that, in most states, a biological link between unwed father and child doesn’t define a parent.  Instead, an actual relationship between father and child is required.  Those ideas make sense, and, in fact, The Supreme Court of the United States (SCOTUS) thought so, too. [3]

Here’s why the Supreme Court’s ruling is good for women:

  1. The Baby Veronica SCOTUS ruling improved biological parents’ abilities to choose adoptive placements for their child.
  2. The Indian Child Welfare Act of 1978 (ICWA)[4] has the unintended consequence of harming Native American children.  The best interest of the child should be paramount in every custody case every time.
  3. The ruling also made it less likely that a parent can change his or her mind late in the adoption proceedings and claim a child she or he had previously relinquished.

The facts of the case

But first, let’s review the facts of the case.   Christinna Maldonado, a non-native (and part Hispanic) single mother of two became pregnant by her fiancé, Dusten Brown.  However, she ended the relationship while she was pregnant.  Ms. Maldonado asked for support for the baby, but Brown demanded that she marry him, or he would not pay support.  She declined.  They communicated via text, and she asked him if he would rather pay child support or relinquish his rights.  He decided to relinquish his rights and did so legally.  Maldonado identified a South Carolina couple, Matt and Melanie Capobianco, and an open adoption resulted.  After Veronica had been with her adoptive parents four months, Brown changed his mind and decided he wanted to raise his daughter.

Court battles in SC ensued, and eventually the court ruled that two year-old Veronica must be turned over to her biological father, Dusten Brown.  On December 31, 2011, SC adoptive parents Matt and Melanie Capobianco handed 27-month old Veronica to Brown, and they continued their litigation.   The SC Supreme Court ruled that he was not considered a parent because he didn’t attempt to take responsibility for his biological daughter until she was four months old.  Even so, because of the ICWA’s additional protections to Native American peoples, Brown would maintain custody of Veronica.

Subsequently, however, the Supreme Court of the United States (SCOTUS) ruled that ICWA did not apply to Dusten Brown because he had never had custody and was therefore not an existing Indian family.

SCOTUS remanded the case to the Supreme Court of South Carolina, which directed the Family Court to immediately finalize the Capobiancos’ adoption of Veronica[5].  The Family Court finalized the adoption on July 31, 2013, approving a week-long transition plan for Veronica to make the transition as smooth as possible.  However, Brown did not show up for the transition plan and made clear that he would not turn Veronica over, despite being arrested for Custodial Interference.

The Law of Unintended Consequences

The Baby Veronica case revealed two tragedies of the unintended consequences of ICWA.  In this case, the law gave a shirking dad more rights than a biological mother.  Second, despite aiming to help Indian children, ICWA unintentionally harms many children. [6] [7]

Parents should be able to choose adoptive placements for their children and native children should have the same rights as non-native children.   However, under the ICWA, Native American children have fewer rights.

Put this in personal terms.  If you had a child to be placed for adoption, and the father was uninvolved, you would want to choose the parents of your child.  You would have that right… but ONLY IF you created that child with someone whose lineage couldn’t be traced back to certain Native American people.  If the biological father were Indian, even if not involved in a tribe or enrolled in a tribe, the tribe can step in and determine “best interest” for your child.

More shocking is that even if both parents (Indian or not) chose and agreed upon an adoptive placement for their child, the tribe must be notified and may step in to deny the placement chosen by the parents and place a child an in Indian home.  ICWA lays out specific placement preferences. “In any adoptive placement of an Indian child under State law, a preference shall be given, in the absence of good cause to the contrary, to a placement with (1) a member of the child’s extended family; (2) other members of the Indian child’s tribe; or (3) other Indian families.”

Even more shocking, if you were to be raped, decided to place the child for adoption, and the biological father is an enrolled Native American, the tribe can step in determine where the child is placed, including with the “father’s” family!

Do you think it’s unlikely that a tribe would ignore parents’ wishes?  You’d be wrong.  It happens in infant adoption cases, and it happens even when children are older.   The tribe has claimed children in numerous cases, several of which are high profile.  Fortunately, in many cases, appeals courts overturn the tribe’s attempts to take a child.[8] [9]  [10] [11] [12] [13] [14] [15]

When SCOTUS ruled in Adoptive Couple v. Baby Girl that ICWA doesn’t apply to a child who was never in an “Indian family,” a non-native mother will actually, finally, be able to choose a placement for her infant child without interference from an Indian tribe.

ICWA is meant to provide special protection to Indian Children.  Instead, it places specific burdens on Indian Children. [16] Unfortunately, too many cases have shown that the tribe is more concerned with keeping its children than with keeping its children safe.[17] [18] Because of the shortage of Indian foster and adoptive homes[19] [20] [21], Indian children are often placed with known substance abusers or known sexual and physical abusers who are Native rather than a safe non-Native home.[22] [23] [24] [25] [26]

Why would the tribes place Native American children in harm’s way?  It’s chilling to realize that the courts have interpreted ICWA to mean that the best interest of an Indian child is different from the best interests of other children.  What we might think of as best interest of a child, such as a stable environment, basic necessities, and lots of love and attention, is not what ICWA means by best interest.  For example, consider the following in a case before the Montana Supreme Court.  “…(W)hile the best interests of the child is an appropriate and significant factor in custody cases under state law, it is an improper test to use in ICWA cases because the ICWA expresses the presumption that it is in an Indian child’s best interests to be placed in accordance with the statutory preferences.”[27]

The ruling protects adoptions, and, as a result, children

In order for domestic adoptions to be a viable course of action for giving needful children homes, it’s important that parents not be able to change their minds after a child has bonded with his or her adoptive family.  For example, one NA biological mother who voluntarily relinquished her infant for adoption attempted to regain custody two years later.[28]  Even if unsuccessful, this sort of legal battle places serious financial and emotional burdens on both families and, therefore, the child.

Dusten Brown didn’t want responsibility for Veronica.  He signed away his rights.  But then, inexplicably, when she had been with her adoptive family four months, he wanted her.  Under SC law, he would have no rights because of abandonment and because he signed legal papers relinquishing his rights.  Had Brown not been a member of the Cherokee National of Oklahoma, there would have been no invocation of ICWA. Without ICWA, when he abandoned his child and signed away his rights, Veronica would have been happily adopted in SC with the Capobiancos, her birth mother, and her half-siblings, in a lovely open adoption.

Bonnie Cleaveland, PhD is a licensed clinical psychologist in private practice in Charleston, South Carolina.


Footnotes

[1] Briggs, L. (2103). Feminists and the Baby Veronica Case.  Retrieved from http://www.ncrw.org/public-forum/real-deal-blog/guest-blog-feminists-and-baby-veronica-case

[2] Hollinger, et al. Amicus Brief Adoptive Couple v. Baby Girl U.S.  12-399 (February, 2013)

[3] Adoptive Couple v. Baby Girl, 570 U.S. (2013)

[4] Indian Child Welfare Act,
25 U.S.C. (1978)

[5] Adoptive Couple v. Baby Girl, 731 SE 2d 550 – SC: Supreme Court 2012

[6] (2013, June 30).  Indian child welfare laws should be for children.  The Bismarck Tribune.

[7] (2013, February 5).  Native Americans; For sake of a theory, law tears at adoptive families.  The Atlanta Journal-Constitution.

[8] Adams, B. (2010, September 28). Navajo Nation can’t fight adoption of tribal kids.  The Salt Lake Tribune.  Retrieved from http://www.sltrib.com/sltrib/home/50372614-76/navajo-nation-state-child.html.csp

[9] McCarty, M.  (2010, July 4). ‘Don’t take my child,’ a mother begs;

A California woman prepares for a custody battle with a Dayton man. Dayton Daily News.  Retrieved from http://www.daytondailynews.com/news/news/local/dont-take-my-child-california-mother-begs/nNFCC/

[10] Klien, G. (2009, August 15). Mother invokes Indian law in victory over Marin child welfare authorities.  Marin Independent Journal.

[11] (2008, December 16). Couple to appeal for return of Indian baby. South Jordan, UT. UPI.

[12] (2007, August 29) Children, Discrimination and the Indian Child Welfare Act. U.S. Newswire.

[13] Dvorak, T. (2005, July 6) American Indian mother frustrated by laws that let tribe block adoption. The Associated Press.

[14] Miller, J.  (2004, September 3) Applicability of Indian Child Welfare Act to private adoption explored by NYC family court.  The Daily Record of Rochester.

[15] (2013, July 15).  Whiteshield Pleads Guilty in Death of Spirit Lake Toddler.  Valleynewslive.com. Retrieved from  http://www.valleynewslive.com/story/22622418/update-lawmakers-calling-for-action-in-spirit-lake-child-death

[16] (2007, October 9). A Tribal Question;

Native American children should not be harmed by a law intended to preserve Indian families.  The Washington Post.

[17] Williams, T.  (2012, September 19).  A Tribe’s Epidemic of Child Sex Abuse, Minimized for Years.  The New York Times. Retrieved from http://www.nytimes.com/2012/09/20/us/us-steps-in-as-child-sex-abuse-pervades-sioux-tribe.html?pagewanted=all&_r=0

[18] Williams, T. (2012, July 7).  Officials See Child Welfare Dangers on a North Dakota Indian Reservation.  The New York Times. Retrieved from http://www.nytimes.com/2012/07/08/us/child-welfare-dangers-seen-on-spirit-lake-reservation.html?pagewanted=all&_r=0

[19] (2012, July 15).Race Should not be Overriding Factor; In Adoption Process, only one Cultural Identity is KeyThe Daily Oklahoman.

[20] (2012, March 28) Goveror Susana Martinez: Foster Care System Needs More Native American Foster Families.  States News Service.

[21] (2004, September 4) Indian children need foster careDeseret Morning News.  Retrieved from http://www.deseretnews.com/article/595089155/Indian-children-need-foster-care.html?pg=all

[22] Collinsworth, A.  (October 4, 1997). Report details child’s abuse, death.  Edmondsun.com Retrieved from http://www.edmondsun.com/local/x519222174/Report-details-child-s-abuse-death.

[23] Kelly, A. (2011, January 27). Hearing in foster child’s death yields no decision about trial.  The Oklahoman.

[24] Cunnif, M.  (2008, April 4). Toddler’s Killing by Convict Leads DSHS, Yakamas to Update Caregiver Policies.  Spokesman Review.

[25] Manson, P. and Sanchez, J.  (2008, February 20) Abused siblings now have loving home – and $1 million from feds The Salt Lake Tribune.  Retrieved from http://archive.sltrib.com/article.php?id=8310879&itype=NGPSID

[26] Clay, N. and Ellis, R.  (2007, October 4). U.S. law pushed boy home before he died; Tribe fought state’s move to cut mom’s parental rights. The Oklahoman.

[27] In re CH, 997 P. 2d 776 – Montana Supreme Court 2000.

[28] Harrelson, G. (2007, May 4). A case of two mothersSt. Paul Pioneer Press.