Tuesday, September 10, 2013

Adoption law in the U.S.: The True Villain in the Baby Veronica case


I don't claim to be a legal expert* -- only one of many millions who have watched this train-wreck of a case come to pass. I'm just another adoptee who has an unknown father out there somewhere in the world.  My father was not considered in my adoption nor was his parentage considered as important to my "case".   My father was neither notified or asked what he thought of my adoption -- according to my adoption agency.

I was talking to my husband today about how the Baby Veronica case demonstrates the larger problem of father's rights in this country.  My husband, one of the best men and fathers I know, was treated poorly by crappy divorce laws (like millions of other men) and he responded by doing the right thing (paying child support and driving out of town to visit with his daughter every other weekend for over 10 years).   Like Dusten Brown, my husband's  role and importance in his daughter's life was minimized and marginalized by not only his former wife, but the law.

The Indian Child Welfare Act (ICWA) has become the main focus on this case, which in all fairness was a technicality Dusten's lawyers could use to stop this unethical adoption in its tracks.  Because let's face it, had Dusten not been a member of Cherokee Nation, he would have likely never received his daughter for the 2 years he has been parenting her.

This does not make the ICWA a bad law or a problem.  It was put in place to stop the exploitation of Native children and should remain in effect.  It's one of the few laws that actually does attempt to keep children with their biological families and should be respected as is.  The real problem that is being covered  up by all the hoopla in the media is that unmarried fathers are in a no-win position when it comes to private adoption.

The mother, Christy Maldonado, did two right things.  She informed her attorneys who the father was and that Dusten Brown was a member of the Cherokee Nation.  The attorneys knew this, yet somehow his name got misspelled and his birth date listed incorrectly on the correspondence sent to Cherokee Nation. All three parties of this case (Christy, Dusten and the Capobiancos) have been vilified as the problem in this case; however, I say that the adoption industry along with unfair adoption laws are the bigger problem.

What jumps out for me is that had Dusten not been a member of Cherokee Nation, he wouldn't have had a leg to stand on if he had not known about Veronica when he was away serving our country. 

Dusten, being an unmarried father, would have been treated like the other unmarried fathers in this country.  As a nobody without any rights.  Mothers who relinquish have all the rights to do what they see fit for their baby. Adoption law puts the mother in a superior legal position to make decisions at the expense of the father's and child's rights. 

The child's right to continue his tie to his biological family is not even considered in adoption law as long as the mother consents to relinquish.  His very identity is not even addressed except to cover it up with an amended birth certificate.   A mother can disconnect her child's ethnicity, blood, rights to inheritance, name, and future all by signing a one page document in front of an attorney, social worker and notary outside of Court.

In other cases, we see this scenario played out repeatedly:  we have a hormonal, sad and angry mommy (with very little support by society to keep her baby), signing over her baby as soon as she is released from the hospital, many times without the father's knowledge or consent and we call this ethical?  We call this "best interests of a child"?

Make no mistake, Dusten Brown was lucky he even knew about his child.  He was lucky to get the famous "text message" where he supposedly gave up his rights.  The way the laws stand in many states, the mother had no legal obligation to tell Dusten a thing.  She could have quietly left the state, handed over the child and lied about who the father was (like mothers were encouraged to do during the Baby Scoop Era) and the adoptive parents and father would be none the wiser.

In many states, the Putative Father Registry is what allows relinquishing women to get around the unmarried fathers of their children.  The theory is, if the father is interested in parenting, he would sign up for this unheard of and unknown Putative Father Registry in order to obtain legal notice of an adoption of his child.

I know this is true in Ohio because this law applied in my daughter's adoption.  The Putative Father Registry serves a purpose (because of unknown fathers or fathers who disappear) but is a horrible idea in actual practice.  This registry is supposed to be advertised but have you ever heard of it?  The registry requires that unmarried men sign up with the names of every woman they have ever had sex with in order to be notified of a potential adoption.  No, I am not kidding. (Read Erik Smith's post about his crazy experience with the registry here).

This is an unfair burden to put on men.  We talk about men not stepping up and then we see one who does and suddenly, he is vilified and told to go back to Oklahoma because the "real parents" are in South Carolina.  It's the typically sad portrayal similar to divorce in the U.S. "Mom versus Dad"  "Adoptive Parents versus Dad" . . . couldn't we better spend our energy on thinking about how we got to this point of vilifying parents and pitting them against each other?  Until we can understand how we got here, there will be many more Baby Veronicas in the future.

Even though the law said my daughter's unmarried father had no right to know anything about our adoption petition (because he failed to sign up for the Putative Father Registry), I called him anyway.  It was the right thing to do.  He gave us his blessing.  He did not hire an attorney, he did not file a paternity case, he did not provide support nor did he ask to visit.  He did what most fathers do when they don't want to parent:  nothing.  He went on with his life. 

Now contrast this to Dusten.  Initially, Dusten was reported as being less than enthused at the thought of being a parent again (he has another daughter).  However, when he realized that his daughter had been placed for adoption (without his knowledge), he hired a lawyer and fought.  And he is still fighting.  This is what is expected of a father who wants to parent his child:  pay a lawyer untold amounts of money so you can have a right to your own child.  Why no presumption that Veronica is better off with Dusten from the start?

In family law cases outside of adoption law, the presumption is that children should live in their original families unless the parent(s) cannot achieve the goals of a case plan.  If the case plan is completed, the family is reunited. Parents have a year or two to prove that they can reunite the family before adoption would ever enter in as a possibility.

Adoption law makes placing children with strangers too easy.  It's too easy for a mother to sign a relinquishment in many cases 72 hours after birth while hormones are pulsing through her and emotional distress is heavy on her mind.  She fears abandonment, homelessness, possibly losing her other children, and she is supposed to make this huge, life-altering decision for herself and her child and never for one moment waver or later change her mind?

It is no accident that the law makes it easy for mothers to relinquish.  The laws are in support of the money-making private adoption industry.  Lobbyists for the adoption agencies have the money and time to make sure adoption laws are slanted in their favor.

In private adoption, once a relinquishment is signed by the mother, the adoptive parents are on equal legal ground with the mother.  This is not good if the mother changes her mind before the adoption is finalized.  She is forced to fight people she many times hand-picked to parent her child.  Parents with more money and the ability to continue paying their lawyer.

We pretend that Mom having her own lawyer makes this all ethical.    If that same mother changed her mind four months into an adoption placement (before finalization), she would be vilified just like Dusten Brown and the majority of the people would cry "no-do-overs, Mama!".  Her lawyer would likely tell her to hang it up and forget it.  No do-overs, Mama. . . sorry you lost your child forever and your child has lost you and her original identity as well.

Why is this ok?  And why are there no laws in place protecting a child's right to her OWN parents and her OWN heritage instead of laws that swiftly take away these birth rights? Answering these questions with the tired, worn-out reply that adoptive parents are the real parents doesn't hold water.

Handing adoptive parents an amended birth certificate in no way changes the reality of who gave birth, who fathered the child, who their ancestors are and who they look like. A final adoption decree does not necessarily mean an adoption of a child was handled fairly and ethically.  When we leave fathers out of the picture, how can we say adoption is ethical?

As it stands now,  the unmarried father -- if he is even aware there is an adoption petition filed-- is on even lesser legal ground than the mother and the prospective adoptive parents, unless he has jumped through the prescribed hoops:  providing support to the mother and child in utero and after birth, signing up for the Putative Father Registry, filing a paternity action, and asserting his rights in Court. And even then, he has to prove he is more fit than married, financially stable adoptive parents. (Fathers, go here to find out how to stop your child from being adopted without your consent).

If a father has not jumped through the prescribed hoops, he has legally abandoned his child.  The legal abandonment is what allows many adoptions to become finalized. (One glaring problem being - how can a person truly abandon a child when he doesn't even know the child exists?)

The father has to be psychic (sometimes) and super-human to ever stop an adoption of his child. And we wonder why some men give up and walk away from their children.  We demoralize fathers before they have had even had a chance to show what they can do.

And the general public stands on the sidelines cheering this injustice on.  We cheer for the adoptive parents, many who are infertile, because we feel they deserve to be parents. They put in the sleepless nights for the first few months and should be able to keep the child, right?  They paid medical bills for the mother, and home study fees and their lawyer, so giving back the child to his or her original family would be too much to ask, right?

Note that foster parents put in the same commitment and work in as do prospective adoptive parents but we would be outraged if they refused to return children to their biological families.

When a child was removed from a parent's home in the custody cases I used to work in, there was a "due diligence search" required, meaning the case worker has to make every attempt to find a family member where this child could be placed before putting the child into foster care.

Why no due diligence search in private adoption?  Why is the mother's preference more important than the what the father and his family wants?  Why no law that protects Veronica's right to her original family (other than the ICWA) until the Judge is absolutely certain nobody in her family wants to parent her and is fit to provide for her? 

My position is that all fathers, even unmarried ones, deserve to know they fathered a child.  If this slows down an adoption, then so be it.  DNA tests should be ordered and proof of notification of the biological father and consent should be received before an adoption is finalized. Good fathers should not be penalized for the sins of the deadbeat dads.

Children want and deserve their parents, even if they live on a dirt floor (with thanks to my sociology professor).  Even if there are others out there with more money waiting in the wings to rescue them.

Their parents can include adoptive parents but adoption should only occur after all efforts have been made to preserve the original family. We need laws in adoption that better protect and support mothers, fathers and children.





 *all legal opinions expressed here are solely the opinion of this author. This article is not to be construed as legal advice and is not to be copied without this author's express permission.







11 comments:

  1. We are on the same wavelength this week, sister. I'm also working on a post re: father's rights. As I was reading this, I kept repeating "Amen!" in my mind. So glad you wrote this post (and happy to see you still blogging)!

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    1. Thank you, Karen. There is something about going through a private adoption and realizing how inherently unfair it is to fathers, children, and mothers that really sticks with a person. The law in adoption also works for people who are educated in law or have money to hire people educated in law, which as we know, are usually adoptive parents and not original family members.

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  2. Wow! Very good article!

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  3. Great article. Totally agree with some of your points.

    I'm an adoptive mom. In both my children's adoptions, the birth fathers were considered. It seemed like their rights were considered to be the same as the birth mothers' rights. In one case, the birth father was named and he had to sign away his rights or there would've been no placement. In the other case, due diligence was done to find the birth father and a notice was published because he couldn't be located. These were two different states. So it seems like the laws in regards to birth father rights vary greatly. There needs to be a big overhaul in adoption laws.

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  4. Thanks for sharing your experiences. Yes, many times fathers do sign documentation -- it does depend on many factors -- if the father is considered the legal father, then he has more rights than a "putative" father (unmarried)and would have to sign documentation for his child to be adopted.

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  5. Actually, Dusten Brown was thrilled when he first learned of the pregnancy. When he became less than enthused was when Maldonado dumped him, never mind they were engaged before he even learned of the pregnancy.

    Now. That said. You know as well as I do that while every child does have two parents, and also every right in the world to know who they are, men and women do not become parents in the same way. Think about how we'd have to raise kids if we didn't have all this nifty gadgetry now. Mom would have to nurse the baby. Mom would have to carry the baby. And with her doing all the baby care out of necessity, baby would be more attached to mommy. That's nature. That's how we got to where we are today. About a million years later.

    Baby has that attachment to mommy because mommy is putting in all the work. And even now, in two-parent families where daddy is working 40 hours a week, mommy is putting in most of the work. Doesn't matter if she's got a job too, then she comes home and does the second shift of home work and child care work. And don't tell me she doesn't, because you know in most cases she does.

    Guys want EXACTLY fifty percent of the custody when they were not doing 50 percent of the parenting.

    Bullshit.

    I absolutely agree kids need to know who their parents are, even when they are adopted (hint: it's not the people who bought you and faked your birth certificate--they can't pass any traits on to you and they are not the reason you are here). I absolutely agree that when no abuse is going on, a child should get a significant amount of time with their father where possible. I also absolutely agree that when the mother is neglectful (and I mean significantly, not "she lets the kid stay up past 8pm") or abusive, that the father gets next dibs on custody, and preferably *permanent* dibs, unless he's a screwup too.

    But don't tell me it's exactly the same. It's *not* exactly the same. And way to buy into the men's rights movement, too. Because before the feminist movement came along and worked to change child custody law, men just about ALWAYS got the kids--and there were a whole hell of a lot more stay-home moms back then than there are now. Moms had no rights. Period. Now it's closer to something like realistic and we're all going to have a fit. Lovely. I'm sure that's a swell example for the children as well.

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    1. Thanks for your comments. You make some good points. Yes, men did have rights to custody at one time, and now we have swung the other direction. It's not that fathers necessarily want exactly 50 percent (that is not feasible in many cases), it's the Standard Order of Visitation that is inherently unfair to the noncustodial parent (men and women alike). There will be many men who don't want to raise their children (or even visit) -- true and women do have the brunt of the work for the most part -- but we still cannot leave fathers out of adoption decisions and call it an ethical decision. Children deserve to know their fathers -- and if that makes me a father's rights advocate, I am guilty as charged!

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  6. Neither of my children's birth mothers were married to their birth fathers. It probably varies a lot by state which I think it part of the problem. The putative father registry is just odd.

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  7. States should have uniform adoption laws. It is too easy and common for babies to be transferred from one state to another to support adoptions without full disclosure and avoid due diligence. In many states if the birth mother applies for public assistance, of any kind, they are required to disclose the birth father. The stated birth father(s) are then required to submit DNA. Why should adoption have lesser standards? Plain and simple American children are NOT for sale.

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  8. you are absolutely correct. Going to different states to avoid the laws the of the residential state is another problem in private adoption . . . .there are too many problems for one article to be sure!

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