The Truth about Baby Veronica

STORY BY Holly Ramos

Published: July 4, 2013

For months the Supreme Court was keeping me up at night. Why was I, a leftist who has never voted or leaned right in my entire life, rooting for Clarence Thomas and Chief Justice Roberts’s opinions to prevail?

Why would I, someone outraged by the devastating treatment of Native Americans throughout this country’s history, an advocate of all students reading Bury My Heart At Wounded Knee, a fighter of injustice my entire life, find myself on the opposite side of the Native Americans in this particular case?

In the strange politics of Adoptive Couple v. Baby Girl, No. 12-399, which the Supreme Court of the United States decided on yesterday, many of the liberals in the media and some on the Court had been, and still are, siding with the Native Americans and they are missing the point.

The case, both heartbreaking and complicated, appeared to be about either enforcing or ruling against a federal law that applies to Native American rights. What was at stake, though, was the rights of mothers, adoptive parents, and more importantly, the rights of children and their best interests, all of which are affected by the legal status of a Native American biological father’s paternal rights.

If you do not know the back story, here is the short version: In December 2011, The South Carolina Appellate Court ruled that a two-year-old child be taken away from her parents, her prospective adoptive parents who she lived with since birth, and given to her biological father, a stranger whom she had never lived with. That court’s decision was based solely on the fact that the biological father is a registered member of the Cherokee Nation, entitling him to rights under ICWA, the Indian Child Welfare Act.

The Indian Child Welfare act is a federal law passed in 1978 to protect Native American children from being taken from the tribes and adopted out to white families, something that was happening to at a great rate at that time, around 33% of Native children, according to various sources.

While I am not a lawyer or an expert, to the best of my understanding the law basically entitles the Native American Sovereign Nation to intervene and override an otherwise legal American adoption if the adopted child is “eligible for membership in a federally recognized tribe”[1],  meaning a child has some percent of blood from certain Native American tribes. In this case the birth mother is Hispanic and the birth father is 3/128th Cherokee, with the result that their baby is 3/256th Cherokee. “The intent of Congress under ICWA was to ‘protect the best interests of Indian children and to promote the stability and security of Indian tribes and families’ ”[2] While I deeply believe in Congress’s intent, and I support the best interests of Native American children and their families, the appellate court’s use of  ICWA to trump state law is troubling to say the least.

Let me backtrack back to the birth parents. The couple was engaged, got pregnant, and broke up at some point. Then the birth father signed a document in which he agreed to not pay child support and gave up his paternal rights. This man had signed up for the military and served in Iraq, and he had children prior to this pregnancy, so it can be argued that he was a grown adult who knew the implications of singing a document and of not paying child support. Apparently, he had no issues with the birth mother raising the child by herself with all of the hardship that would entail. It was only when he learned that she had chosen to put the child up for adoption that he decided he wanted the child.

Thankfully, getting some one pregnant does not entitle a man to paternal rights according to US state law. When a woman carries a child in her body and cares for it before birth, she has maternal rights. In order for a biological father to have paternal rights he must establish himself as a father by either marrying the mother or financially supporting her during the pregnancy. This particular birth father did neither of these things, but because he had Native American blood, the appellate court allowed him to stop a legal United States adoption, over riding what the birth mother wanted for her child. The blatant disregard for the mother and child’s rights was considered legal.

The issues the Supreme Court looked at were, “whether a non-custodial parent can invoke ICWA to block an adoption voluntarily and lawfully initiated by a non-Indian parent under state law; and whether ICWA defines “parent” in to include an unwed biological father who has not complied with state law rules to attain legal status as a parent.” [3]

I am thrilled to report that the Supreme Court served up justice yesterday, ruling in favor of the adoptive couple. The court recognized that since the biological father had never parented the child, he did not qualify as a parent under ICWA and thus was unable to use the ICWA law to stop the adoption, which is a great victory for women and children’s rights, and a personal victory for the birth mother and adoptive couple in this harrowing case.

As an adoptive mother, I do not see a biological parent as any more or less of a parent than an adoptive parent is. At 3am if my daughter wakes crying, it makes no difference whose body she came out of - she is my daughter and I am her mother and I am up with her, comforting her, simple as that. The very first moment a child enters the world they need to be parented and if it is not by the biological parent then it needs to be by someone else. Ultimately the very act of parenting gives someone parental rights. I am very happy that the court agrees with this idea.

Ultimately, we are all responsible for our reproductive choices. It is indeed sad when we make a choice that we regret later, but our sadness does not give us the right to go in and break up a family. One’s bloodline or biology should never trump the bonds of a child and a parent, whether adoptive, or step or other.

Oddly enough, there is one glaring issue that the court did not take into consideration in yesterday’s ruling. One of the primary problems with using the ICWA to take a two-year-old from the only home she had ever known is that such an upheaval is not in the child’s best interest. It took my becoming a parent to truly understand where a two-year-old is at developmentally and how injuring a separation from his or her parents would be. I imagine that most any parent reading this would find it unbearable to think about a two year old being uprooted from his or her family, the people who lovingly raised them from birth, and turned over to a stranger. Most mental health professionals can agree that removing a child from a healthy, secure, familiar home ignores a child’s developmental need for consistency and for caretakers they know and trust. The detrimental outcomes of such trauma as court ordered relocation are hard to measure or predict, but are real nonetheless. These issues seem to me to be the overwhelming reason to overturn the initial ruling but they were not a factor in this case. Law is a peculiar philosophical science, imperfect, but at times gallant.

Ultimately, yesterday’s Supreme Court ruling sets a great precedent. The ICWA legislation often serves a good purpose and I fully support the intent of Congress when they enacted it. All children deserve to have their heritage considered in adoption, but as Joan Heifetz Hollinger wrote in the New York Times, The goals of the Indian Child Welfare Act are not well-served when tribal ties are invoked to justify the dismantling of a child’s existing non-Indian family rather than to protect tribal custodial families against the loss of their children”.

The tragedy of removing baby Veronica from her home cannot be undone and the court ruling may not reunite her with the only people who ever unconditionally supported and wanted her. Family court will rule on that. Hopefully baby Veronica’s best interests will be served.

 

To read the Supreme Court’s entire opinion please go to:

http://www.supremecourt.gov/opinions/12pdf/12-399_8mj8.pdf

 

For more information from both sides of the spectrum please check out:

http://www.michiganlawreview.org/articles/em-adoptive-couple-v-baby-girl-em-two-and-a-half-ways-to-destroy-indian-law

http://www.supremecourt.gov/Search.aspx?FileName=/docketfiles/12-399.htm

http://www.nytimes.com/roomfordebate/2013/01/24/adoptive-parents-vs-tribal-rights

http://www.nicwa.org/indian_child_welfare_act/faq/

 

References

  1. ^  National Indian Child Welfare Act website
  2. ^  National Indian Child Welfare Act website
  3. ^ The Supreme Court website 
Other Stories by Holly Ramos
[^] comments powered by Disqus

Have a topic you want covered? Let us know.

hdr
hdr
hdr
hdr
Shop