The Fate of a Child in our Brave New World

An op-ed published in Sunday’s Dallas Morning News seemed to suggest it was defensible for a two year old child, who had been adopted by apparently loving and stable parents, to be taken from them by an illegitimate biological father – legally.

University of South Carolina law professor Marcia Zug says the South Carolina Supreme Court made the right decision when it affirmed the decision of a lower court that required Matt and Melanie Capobianco to turn over their daughter Veronica to one Dusten Brown.

Before you conclude that South Carolina is a nutty place, read on. It seems that state’s court were faithfully applying federal law, duly enacted by Congress and considered an upheld by the United States Supreme Court in 1989. The underlying rationale: It seems that Mr. Brown is 1/32nd Cherokee Indian, which makes Veronica 1/64th, at least biologically.

See:  Marcia Zug’s op-ed piece at this link.  There are a number of links to the story found with a Google search.

Recall a fin de la décennie fictional party in a 1980 Doonesbury cartoon in which one of the characters described the 1970s decade as a kidney stone. Having survived that decade more or less intact, I agree with that appellation. Your essay highlights that one of the stones, unfortunately, has not passed. That one is the 1978 Indian Child Welfare Act.

The case of he Veronica, whatever her surname ends up being, highlights the all too often outrageous misuse of law in our nation today. A tribe’s interest outweighs the rights of individuals? Well, let’s go back to the days of tribalism, and see how that works for us. There are numerous examples throughout the world, none of them pretty.

When I first started practicing law over 20 years ago. I accepted ad litem appointments in child welfare cases to help pay the bills. Surely you are aware of the appalling circumstances in which too many children are born, situations which cause Child Protective Services to have one of the highest turnover of all occupations.

One case I had involved a child born to a blue-eyed “white” (I put these race/ethnic descriptions in quotes to show my contempt for them) woman in the county jail, who was in for a number of offenses, including prostitution. She was a cocaine addict, and the child was born with physical problems caused by it. Nevertheless, the long term medical prognosis was good. CPS placed the child with a foster family, who was also “white,” who started the adoption process. There was absolutely no way to determine who the biological father was – a judge later observed that we cannot do DNA tests on every man in Dallas County – but, because, the child had somewhat darker skin and brown eyes, the CPS powers that be decided that she must be “hispanic” and declared the foster parents ineligible to permanently adopt her. The child’s “hispanic” heritage, as it were, had to be preserved. Because I was of the opinion the foster parents had bonded, I opposed this, and after considerable legal wrangling, including my request for a jury trial on the best interest issue, the foster parents were permitted to adopt the child. I may have been helped by a contemporaneous incident where a television news crew videotaped a “black” child being taken kicking and screaming from his “white” foster parents in another county. It seems that the CPS was influenced by the National Association of Black Social Workers position that the so-called trans-racial adoptions were deleterious to “black” children and families. The Texas Legislature soon thereafter amended the Family Code to prohibit consideration of race or ethnicity in determining the best interest of the child (Texas Family Code § 162.015, which does recognize the pre-emptive effect of the ICWA where it applies.) 

Although their view is dubious, at least the NABSW had the interest of the child in mind. The ICWA seems to extol collectivism, that is, the interest of a tribe. That is false to the ideals of our Declaration of Independence and Constitution (as amended) to preserve and protect individual rights. I am aware of the nice distinctions that Indian tribes are regarded as separate nations for some purposes, but Indians are United States citizens, and should have the same rights. Are tribal courts constrained by the Constitution? I would like to know.

Then, again, who is an “Indian”? I do not care for the “Native American” appellation. Natives of a country or locale are those who are born there, and the implication that those who can find an ancestor, however remote, who immigrated prior to 1492 have a greater right, however slight, to be here is troubling. In Veronica’s case, that means that, if I read Mr. Brown’s ancestry correctly, one great great great great grandparent is a Cherokee. Yet, she is described as a “Cherokee child” in Ms. Zug’s essay. That really takes the concept of hypodescent – the “one drop” rule – to ludicrous lengths. As a legal principle, hypodescent goes back to feudal times to prevent the offspring of the lord of the manor’s dalliance with the scullery maid from having inheritance rights and thus complicating the rules of primogeniture and entail and other property issues. The American version was similarly applied to slave owners and their slaves. It survived with regard to interracial marriage in many states until the 1960s. What is really troubling is it still survives in practice and statute. We have discarded numerous other Medieval practices, but the decennial census requires us to identify ourselves by race or ethnicity. (I typically decline to answer, or put down “other” – “human.”) This had the unhappy result of making identity politics and its rancorous results eclipse more important issues.

I strongly disagree with Ms. Zug’s analysis that the remedies that the Capobiancos in Veronica’s case seek are wrong. It is the ICWA that is wrong on many levels. It should be repealed in its entirety or at least amended to make the rights of individuals and the best interest of the child paramount. I am not sure we can count on the U. S. Supreme Court to redress this particular grievance, but hope springs eternal.

Ms. Zug’s phrasing that Veronica was “reunited with her father” seems disingenuous, if not an outright lie. Were they ever together as a family in the first place? Her essay and other sources concerning the controversy suggest otherwise. Mr. Brown was an illegitimate parent to begin, and reportedly knew and did not oppose the adoption when it first occurred. This suggests his motives for seeking custody might be less than honorable. Mr. Brown did post nativity go to the trouble of establishing his tenuous Cherokee credentials. To what end? Had he ever developed a relationship with the child prior to her being placed with the Capobiancos? Is the biological or genetic relationship alone enough? Much of our legislation and jurisprudence seems to indicate so. It seems that if a man were to discover some stray spermatozoa of his produced a child he was unaware of or never had a relationship with, he might have the moral compass to believe himself obligated take some responsibility for support. How can a right thinking person, committed to the idea of individual rights and liberties, countenance allowing him to intrude upon a stable family or other relationship. To my mind, that is just wrong. Is someone trying to make a point with a test case? It would be interesting to find out what’s behind this.

I have not practiced in the family courts for nearly 20 years. Stopped getting appointments not too long after the case related above. Guess I was too much of a troublemaker, so I went on to make trouble in the more mundane area of contracts and business. Keeps the blood pressure under control, but I hope I raised yours. Perhaps you’ll write your Congressman, but as I said, hope springs. . ..

 

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