Time to Fix Indian Child Welfare Act

Thursday, 26 Sep 2013 10:50 AM

By Susan Estrich

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This week, Baby Veronica finally went home — for good.
She was adopted at birth by a South Carolina couple who raised her until she was just over 2 years old.
Then she was sent back to live with her biological father, Dusten Brown, who had signed away his parental rights but then sought to invalidate the adoption because his tribe had not been notified of it.
In June, the United States Supreme Court ruled that the Indian Child Welfare Act — the basis for the biological father's claim that the adoption was invalid — did not apply because he didn't have legal or physical custody of the child when the adoption proceedings began.
The court remanded the case to the South Carolina courts, which upheld the adoption.
The baby's adoptive parents have made clear all along that they are open to allowing her biological father to have a role in their child's life.
Even so, I keep finding articles attacking the courts for supposedly taking the child away from her father. Chief Justice Roberts, in particular, has been excoriated because he is the father of two adopted children.
There was a time when Native American children were taken away from their biological parents and put up for adoption without adequate protection for the rights of the parents. That's why the statute was passed.
But this is simply not such a case. The father signed away his rights. He was, it appears, perfectly happy to give up his right to a relationship with his daughter.
It was only because the mother did what she believed was best for her child — allowing a childless couple to adopt — that Brown had any basis for complaint. And technically, he wasn't the one whose rights were violated. He gave up his rights.
It was the tribe whose rights were supposedly violated.
I am sure I will receive many angry emails for saying this, from people who will claim that I just don't understand tribal law. Even so.
Why should the rights of the tribe trump the rights of the adoptive parents?
What gives the tribe ownership of a child whose father has given up his parental rights and whose mother has decided that adoption is in her best interests?
Why should the rights of the tribe force a woman to raise a child she may not be capable of raising — in which case, no one in the tribe could complain — rather than allowing the child to be placed with a loving family?
Children are not chattels.
The adoptive parents were in the delivery room when their daughter was born. The real father — the adoptive father — cut the umbilical cord.
Of course it's heart wrenching. But the reason this is so painful is because this child never should have been taken from her adoptive parents. She was ripped away — not from the tribe, but from the only parents she ever knew.
If this is what is allowed under the Indian Child Welfare Act, which was passed in 1978, then it is time that law was changed.
In my book, to be a parent is a privilege, a sacred trust. By signing away his parental rights, Brown shielded himself from any obligation to support his daughter. Apparently, that's what motivated him to sign. He didn't want to pay. But, he claims, he didn't realize that meant the child could be put up for adoption.
Too many kids live in limbo, technically not "adoptable" because one of their parents won't give up their parental rights, even if that parent refuses to provide for the child's well-being. And the older these children get the more scarred they are from bouncing from one foster home to another and the less likely they are to find a "forever home."
Baby Veronica is going home to her forever home. Justice delayed, but still justice.
Susan Estrich is a best-selling author whose writings have appeared in newspapers such as The New York Times, Los Angeles Times, and Washington Post, and she has been a commentator on countless TV news programs. Read more reports from Susan Estrich — Click Here Now.

© Creators Syndicate Inc.

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