June 25, 2013

Why did all 3 female Supreme Court Justices vote on the side of the father...

... in a case where the single mother — with no financial support from the biological father — chose to go forward with her pregnancy and chose adoptive parents, parents who were with her in the delivery room? The father gave up his parental rights via text message before the baby was born, and the child — a little girl — lived with those adoptive parents for 2 years before the state court gave her to the father. The only reason the father had an argument for taking the child was the Indian Child Welfare Act of 1978, a federal law intended to protect Indian families from public and private welfare agencies that Congress decided had been too aggressive. The Supreme Court majority — which included the one male liberal Justice (Breyer) — interpreted the statute not to apply in a situation where the biological father had never had custody of the child. Here is a mother who happened to have been impregnated by a man who is a member of an Indian tribe. Why was it appealing to the female Justices to allow this man to intrude on the mother's choice to give the baby up for adoption?

Here's the text of the case, Adoptive Couple v. Baby Girl.

The child is 1.2% Cherokee.



Consider that the states have traditionally handled family law, and Congress's power arises from the Commerce Clause.

147 comments:

David said...

They want to expand federal power. The hell with the kid.

How's that for empathy?

Bill in Pasadena said...

When it comes to the best interests of the child in cases like this, the law is too often an ass.

Inga said...

This poor child, bounced around like a ball between parents. After being with her bio father since age two, now at age four, she must be placed with two people she doesn't remember?

madAsHell said...

I don't understand why a deadbeat Dad would pursue custody of his daughter. Was it an economic advantage for Dad?....or is there some other gotcha agenda?

Who funded this endeavor?

Julie C said...

So I've read a bit about this case, and this little girl spent over two years with her adoptive parents, only to have her ripped out of their arms and given over to her father. Now he's had her for at least a year, close to two I think. Are we supposed to be happy that the adoptive parents won this? So now she gets to be ripped out of dad's arms and turned back over to them? Jesus, the whole thing makes my stomach turn.

I still remember that case from the 90s was it? When that little boy was pried out of his adoptive parents' arms and turned back over to the birth mother and dad? Good God, the news footage of that poor child screaming and crying ...

edutcher said...

I'm guessing they wanted to strike a blow against the white race and to punish that hussy for keeping the baby.

Methadras said...

When collective federal guilt over indian affairs trumps the rights of the adoptive parents in favor of an part indian parent who gave up his parental right to this child who is 3/256 cherokee indian, then you set up a system that can be argued that racial preferences in adoption or parental rights can now be made. This is an ugly precedent. The ICWA should have been rendered moot in favor of the adoptive couple getting the child back, but because she's already living with the father the state has already screwed things up. Now the court has added fuel to the fire.

I think adoptive parents now might be taking a second look at whether they think a potential court fight might come their way if there are racial preferences that can be used against them before or after they've adopted a child.

Methadras said...

madAsHell said...

I don't understand why a deadbeat Dad would pursue custody of his daughter. Was it an economic advantage for Dad?....or is there some other gotcha agenda?

Who funded this endeavor?


Wouldn't shock me at all if getting the kid netted him indian casino money from the tribe.

Ann Althouse said...

"I'm guessing they wanted to strike a blow against the white race and to punish that hussy for keeping the baby."

The mother is Hispanic.

Ann Althouse said...

Maybe the female Justices are thinking of what was never mentioned: abortion.

Palladian said...

Race is a bullshit concept, and anything and any law based upon race, including "Native Americans", is bullshit.

Petunia said...

Well, the most recent two appointees are completely unqualified to be there...not surprising they got this, and Zerocare, wrong...

Saint Croix said...

Maybe the female Justices are thinking of what was never mentioned: abortion

Wouldn't abortion rights cut the other way? The woman had a choice. She made it. They want to ignore her choice.

Maybe they're hostile to adoption and want to make it more difficult for women to give up their children?

But who is hostile to adoption? That makes no sense whatsoever.

The vibe I got was simple disagreement that didn't have anything to do with gender. Nothing they wrote made me think "bigotry."

Paco Wové said...

"Now the court has added fuel to the fire"

Yeah, I agree with the ruling but it should have been made about 18 months ago. The lumbering majesty of the Law is wholly unsuited to cases like this, where time is truly of the essence.

Revenant said...

Cute kid.

Pogo said...

1/3rd Latina wisdom, 1/3rd feminism, 1/3rd dementia.

edutcher said...

Ann Althouse said...

I'm guessing they wanted to strike a blow against the white race and to punish that hussy for keeping the baby.

The mother is Hispanic.


You wanted to know why.

That's as good as anything else.

Ann Althouse said...

"Wouldn't abortion rights cut the other way? The woman had a choice. She made it. They want to ignore her choice. "

That's the premise of the post, choice, writ large.

But another way to see it is, pro-abortion. She could have deleted the child who had Indian blood and she should have if she's lax enough to go forward and have the child, here generic choice issues are subordinate to race.

Ann Althouse said...

Her generic choice

bpm4532 said...

Democrats seem to still believe in the "one-drop" rule. That would make them racists.

Synova said...

If I recall the "giving up of parental rights" was pretty darn iffy. I could be remembering wrong but it was a case of the father believing the mother would keep the child and him being comfortable with her as a person and parent and the mother never mentioning even once that she was going to give the baby up for adoption. Thus the father and the grandparents never had a chance to adopt their biological child or grandchild or let their wishes be known.

There is a far cry between "I trust you with my child and if you don't want me there because I'm going to be deployed all the time anyway that's okay" and "give my child to strangers."

Maybe it only won in court because the father and his family were Indian, but as a society we simply can not insist that fathers matter and then behave as if they don't matter at all.

Synova said...

Oh, he lost?

Brilliant. Just brilliant.

traditionalguy said...

The Supremes have been enamored of their Jurisdiction since Marbury. They never give it away.

The Federal Jurisdiction from the Tribal Treaties of the 1800s is right for their display of exercise of their power. They could care less what happens to a child, really get a clue about DC players DNA.

Not that there is anything wrong with that.

Dust Bunny Queen said...

Wouldn't shock me at all if getting the kid netted him indian casino money from the tribe

THIS. You wouldn't believe the lengths that the tribes will go to to "disenfranchise" some families from the tribe JUST in the goal of divvying up the casino proceeds. One family in a local tribe here that had been "Indian" for several generations and who had been livin' large since the Casino, were booted off of the Rancheria and dis-enrolled in the tribe.....while amazingly enough the tribal elder who made the decision, added many of his distant relatives to the clan. It almost came to murder and there was mayhem.

Follow the money.

Gahrie said...

I don't understand why a deadbeat Dad would pursue custody of his daughter. Was it an economic advantage for Dad?....or is there some other gotcha agenda?

Who funded this endeavor?


The tribe.

Paddy O said...

If she had an abortion, wouldn't a father had a claim against her? Had this case turned out the other way?

If the father has rights, having never had custody, why does such rights begin at birth? Not having custody begins at conception.

Jupiter said...

"Why was it appealing to the female Justices to allow this man to intrude on the mother's choice to give the baby up for adoption?"

That's really the way you would frame this? That decisions of Justices of the Supreme Court reflect what they find "appealing"? Or does that only apply to female Justices? It is becoming increasingly apparent that the 19th Amendment was an even bigger mistake than the 16th and 18th.

edutcher said...

Palladian said...

Race is a bullshit concept, and anything and any law based upon race, including "Native Americans", is bullshit.

Race is a club and it defines, by who is in and who isn't, who us is.

Add to that several hundred years of wars predicated on not only culture, but race as well, and you've got quite a mix.

gadfly said...

The child is 1.2% Cherokee, so Elizabeth Warren knows all about her. Looking forward,the child's future is rosy red.

Synova said...

According to the description on the legal documents the adoptive parents legally notified the father of the adoption and he said no. He didn't decide later that he wanted the child after all.

Fathers tend to often feel that children belong with their mothers and feel okay about that and don't contest custody in divorces.

Being okay with the mother having the child and wanting it adopted to strangers is not the same thing.

Just for simple human decency the mother should have made an inquiry to the father so he and his family could have first refusal for adoption. Unless they're felons, sex offenders or child abusers, of course... but I suppose what I think of as simple human decency doesn't occur to the "I can kill it" crowd.

Synova said...

Of course the law is abusive to fatherhood in all it's forms and the best bet to win in court was the "Indian" thing, because Indian tribes do have legal rights even if father's don't.

Roger J. said...

As DBQ points out: within the tribe it is all about per capita payments. We have taught our native American population well.

Jupiter said...

"Being okay with the mother having the child and wanting it adopted to strangers is not the same thing."

Loving a child enough to devote oneself to her welfare and feeling a nagging sense of ownership are not the same things, either.

Synova said...

"Loving a child enough to devote oneself to her welfare and feeling a nagging sense of ownership are not the same things, either."

And which do men automatically feel? A sense of ownership, no doubt.

In other words... you have no clue whatsoever what the father felt for the child. None. But you bring up "a sense of ownership" anyhow because... MEN!

acm said...

Didn't the father also express that he wasn't willing to financially support the baby if she had stayed with the mother? Did he contribute to the baby's prenatal care and help cover the cost of her birth? I seem to remember that he didn't.

Synova said...

I remember that he didn't contribute support because he was deployed elsewhere and the mother never asked for it. I don't remember that he expressed that he wasn't willing. Not that he has to be willing to provide support, of course, because if the mother applies to the courts they will award it. I could be remembering wrong about him being in the military but if he was, the military will take those support payments out before the father ever sees them.

I Have Misplaced My Pants said...

This is a hard case from all sides.

If the birth father had an interest in raising the child in any circumstance he should NEVER have relinquished his rights, even in some hokey way like a text message as I recall he did. It's a bizarro position to take that he doesn't want anything to do with the child as long as the mother is raising her, but he also wants veto power over whether she gives the child up for adoption? You can't have your cake and eat it too. The child should not have been placed with the adoptive family without the informed consent of the birth father, but it's also not right for him to try this contingency-type business regarding whether he has decisionmaking rights over the child or not. Either he was all-in, or all-out.

And the racial aspect is absurd.

Jupiter said...

"In other words... you have no clue whatsoever what the father felt for the child. None. But you bring up "a sense of ownership" anyhow because... MEN!"

Well, actually, I think there are some clues here. From his actions, it is clear that
a) He didn't want to raise her himself, but
b) He wanted to decide who would.

Lem said...

Oh my God is that beautiful child again.

Its heart breaking.

I Have Misplaced My Pants said...

P.S. It took our son's birth father eight agonizing months, during which time we had our son living with us, to make up his mind about whether he wanted to raise him or give him up to us. It was utterly tortuous but I wouldn't do it any other way, because we needed to make absolutely sure we were on solid ground before proceeding. I can understand the adoptive parents' haste and apparent end-runs, but that approach ultimately cost them and the little girl dearly.

Synova said...

Hey... I might be completely wrong but it's not at all bizarro to me if the father was in the military and deployed... he's not going to be there in any case, he can't take custody of the child or if he could it would be a sorry thing to insist on custody and then leave the child with someone else... assuming the mother wanted the child.

I'd love to see a transcript of the text messages and if it's made clear that either he has no interest (instead of just making Mom's life easier by making her the sole legal authority over the child) and Mom made clear that this was an actual legal giving up contact with the child forever...

... I'll change my mind.

Lem said...

Althouse putting that picture up is cruel and unusual.

rhhardin said...

It's so important that families stay together.

Sorun said...

Shit, we're all at least 1.2% Indian.

elkh1 said...

The mother was free to choose to get rid of her baby. But it's absolutely horrifying that she gives her babe to a loving couple.

What will such thoughtless anti-choice act do to those pro-choice women? It will be such a disaster if more mothers would rather give up their babies for adoption than to exercise their human right to choose. We must save these misguided women from giving up their human right.

acm said...

His being deployed didn't keep him communicating with the mom, and giving up his rights (with, so he claims, the condition that the child live with the mother indefinitely) so I don't see how it would've kept him from transferring money by phone or sending checks for his daughter's support. He probably should've also spoken with someone in the military about getting his child support set up.

But really, that matters little to me. When you give up your rights and say "this person I trust with all the major decisions for this child's life" that's it. He told her to make the decisions without his input, and this is the decision she made. A birthmom can't say to adoptive parents "Yes this is your child now unless _______" and expect the court to enforce it, so why should a nonsupporting birthdad get to do that to a birthmom?

Jupiter said...

" Ann Althouse said...

Maybe the female Justices are thinking of what was never mentioned: abortion."

You got that one right. The vast majority of abortions could just as easily end as adoptions, if the woman involved were willing to tolerate a few months of pregnancy. The idea that a woman has a compelling right to "choice" depends upon denying this obvious fact. Of course, part of what a woman has a compelling right to decide is whether a man will have to tolerate twenty years of income reduction.

Synova said...

"Shortly after her birth, Brown, a U.S. Army solider not married to the birth mother, deployed for one year, (...) Four months after Veronica's birth, Brown took legal action, seeking custody of his daughter."

So I hadn't forgotten.

I Have Misplaced My Pants said...

If I were that guy and I did NOT want the child given up for adoption but I was not in an immediate position to care for her myself due to military obligations, I would get myself to the JAG or Fleet & Family Services (or whatever his branch equivalent is) immediately and find out what my options & obligations are. He's hardly the first soldier to father a kid unexpectedly. I don't think they would advise him to sign anything or give any assurances via text that would enable an adoption to move forward. That is not a mistake that should cost him his parental rights necessarily, but I would be curious to know what information he gathered to handle this situation.

Honestly I'm speculating, mostly--but this whole case seems full of people making strange and ill-considered decisions.

Synova said...

Gawd acm... have you ever been deployed to a war zone? I'm amazed that he got the legal process going by the time his daughter was four months. And... he was being deployed. It's not as though he could have taken custody of the baby. Leaving the baby in the care of its mother would seem to indicate a responsible decision. Yes, he should have done a great deal of stuff, no doubt his FOB had a great military family lawyer right there to help him through the process. Sure they did.

Still, it's clear that he decided *right away* that he wanted custody.

It's also entirely believable that he signed a bunch of legal paperwork before he left. The First Gulf War was a family centered legal fiasco because it never occurred to the services that without powers of attorney families would be left unable to get pay out of the bank for groceries or to pay mortgages or rent or authorize medical treatment or any number of really important shit. Mothers and Fathers who are sent on deployments *now* routinely fill out legal paperwork to give full legal authority to the custodial parent. The raft of "you have full legal authority" legal stuff is *standard*. Did he think that was what he signed? Can you be sure?

Emil Blatz said...

If she is 1.2%, how much casino royalty income does she get?

elkh1 said...

Sorun said...
Shit, we're all at least 1.2% Indian.

But up to 4% Neanderthals.
http://news.bbc.co.uk/2/hi/science/nature/8660940.stm

sean said...

I just can't believe the evil of those women, who would take a child away from her parents just to be politically correct. I remember when my wife and I could not have any more children, we thought about adoption, but I was too worried about the courts giving us a child and then taking her away, I wasn't interested. As a father, I wouldn't be able to take that.

acm said...

How would being the child's sole legal parent have made life easier for the mom? You can only collect child support from a legal parent, so it wouldve made her life financially more difficult. And again, making her the sole legal parent means the decision to pursue adoption is hers and hers alone.
If you put your house in your ex's name " to make life easier" and don't contribute to the taxes or upkeep, sorry, but you don't get to decide who lives there.

The deployment thing is an excuse. He could've had money sent and a record of ir kept by the military. He could've refused to give up his rights until he got back. Even if the mom was hellbent on not keeping the baby, he could've attempted to arrange for one of his relatives to care for the baby til his deployment ended, as other military families do.

acm said...

Synova he's not the first unmarried military dad. If he really thought the mom was going to keep the baby, then it didn't matter that he wouldn't be there immediately to take custody.

I Have Misplaced My Pants said...

Synova, he's a grownup, responsible for what he did or didn't sign. I admire your compassion for the unique challenges posed by military life but how far should that go? Again, is he the first guy to knock up a girl back home? There aren't ways to deal with this that don't involve him dismissing his rights enough to facilitate placement in the first place?

acm said...

The other point---that four months should've been soon enough to change his mind---Iis much more sympathetic to me then the argument that he thought the mom was going to raise her alone. I'm not sure what the perfect timing is, but a waiting period makes sense. I just really object to the idea that a birthparent should get to call backsies if the situation changes.

creeley23 said...

Sotomayer, Kagan, and Ginsburg are all serious lefties. It's about the leftist agenda -- in this case minority rights.

Remember how women in 2008 turned away from Hillary, a woman, to vote for a black man? This is even better -- the chance to side with a Native American.

And it's not that the mother is Hispanic, as Althouse points out, it's that the adoptive couple is white. The liberal pecking order of race is very clear.

Maybe abortion is part of the calculation, but I have to kind of squint to see that one.

Joe said...

I spent some time studying this case and two points are apparent: the mother intentionally refused communication with the father and went to great legal lengths, using money from the proposed adoptive parents, to do so. It is my opinion that the mother sold this child to the adoptive parents and the father's rights have been trampled.

I find the stereotyping that the father is a deadbeat and so forth shameful. He was deployed in the military and acted within his capability with very limited funds and legal representation.

Ironically, I agree the law used doesn't require the child be returned to the natural father. However, common decency and fairness dictates such. It is shameful that in the 21st century, you can still buy children.

Eric said...

THIS. You wouldn't believe the lengths that the tribes will go to to "disenfranchise" some families from the tribe JUST in the goal of divvying up the casino proceeds.

The word you're looking for is disenrollment.

GrandpaMark said...

If Coy can choose to be a girl, this kid should choose her parents

acm said...

Even though I think a waiting period for finalization makes sense, I absolutely think birthparents have a responsibility to support their kids during that time. The poor kid doesn't sit in a bubble waiting for his parents to figure out what to do. Really, 9 months should be spent figuring it out.

I also wonder what the mom waa supposed to do? The das says he wants nothing to do with the kid. Sure the military will make him pay support, but who knows how long he'll stay in? Even if he stays in forever, if she plain doesn't want to parent, shouldn't she do exactly what she did, make an adoption plan?

I don't think it was a grand conspiracy on her part to deny him or the Cherokee Nation a baby. The only issue there was that she (or the adoption agency) spelled the fathers name wrong (using the traditional spelling instead of his kre8tiv spelling) on one form.

acm said...

Joe, the infamous text exchange couldn't have happened if they weren't communicating.

Michael Haz said...

That child is that man's daughter. His rights are no less inferior to the mother's rights. The mother gave her up; he wants to raise her.

A man steps up to do the right thing and is castigated for it. Society is sick.

The justices did the right thing.

Inga said...

Michael, do you mean the female Justices did the right thing? The male Justices took the child away from him and Placed her back with the adoptive parents.

Drago said...

Synova: " The First Gulf War was a family centered legal fiasco because it never occurred to the services that without powers of attorney families would be left unable to get pay out of the bank for groceries or to pay mortgages or rent or authorize medical treatment or any number of really important shit."

Actually, we were provided all the necessary powers of attorney forms necessary (with legal assistance) to allow for sufficient flexibility prior to deployment for the first gulf war.

The problem was getting limits on what could be done once those forms were signed.

Synova said...

I'd like to see a transcript of the text exchange.

The lawyers (and father) decided to do this from a Indian Nation perspective, likely because it seemed the most sure way to win.

None of that addresses if he understood the legal documents he signed or if text messages count as giving up legal rights. (Or how about phone answering machines and irate parents declaring "you're not my daughter!" does that give up a parent's legal rights too?)

And the adoptive parent's moral authority for outrage over the trauma of ripping the child from the family she knows isn't worth much when they've now done the exact same thing.... guess they don't think it's so bad after all.

NotquiteunBuckley said...
This comment has been removed by the author.
NotquiteunBuckley said...

Could someone volunteer to read the article to Inga?

Slowly, pausing for questions after every sentence?

A time-line would be in order, maybe Chip could make it dance?

Thanks in advance.

Synova said...

The legal decision on what was actually ruled on may well have been the right one.

The fact that fathers who aren't Native American have few legal rights is a separate issue.

And I've got no problem at all if the courts want to put a time limit on how long a father can deliberate signing or not signing papers, once notified, including signing "I want custody" in a proactive way so everyone in an adoption process isn't left hanging.

creeley23 said...

That child is that man's daughter. His rights are no less inferior to the mother's rights. The mother gave her up; he wants to raise her.

That's not a fair summary.

It's not that the father's rights are inferior to the mother's. The mother gave the child up and the father did too. Another couple chose to raise the child and did so for over 2 1/2 years.

Then the father changed his mind, sued, and won her back and has raised her for the past year and a half.

At this point, IMO, there isn't a "right thing" to do in this case except I don't believe it should be settled based on racial concerns.

Michael Haz said...

Inga, as stated on the top of the post, all three female supreme court justices voted to give the child to the child's father.

My comment was a concurring opinion.

Inga said...

Could someone please tell NQUB to make sense for once?

Inga said...

Just wanted to make sure Michael.

Synova said...

It's not at all proven that the father gave up his rights and then changed his mind.

That was never ruled on. It wasn't part of the case.

Can you give up your legal rights in a text message? Can you? His lawyer said he didn't understand what he was signing when he signed some legal documents. No court ruling addressed either thing, if legal rights can be given up during a text message conversation or if, in this case, the legal documents signed (whatever they were) were binding if he didn't understand them.

The court ruling was only on the question if the law required this child to be adopted by Indians.

Bender said...

The couple was engaged to be married. When they found out that mother was pregnant, father wanted to move up the wedding date. Mother balked, then broke off the engagement.

So let's end this lie about dad not wanting the kid.

Meanwhile, this alleged waiver of fundamental rights by text message is about effective as you folks waiving your rights by combox comments. The law requires more due process than that. It requires a showing on the record - usually in-court - that the party's waiver was knowing, intelligent, and voluntary, with a full understanding of the nature and consequences of the waiver. A text does not do that by any stretch of the imagination.

Synova said...

"It's not that the father's rights are inferior to the mother's. The mother gave the child up and the father did too. Another couple chose to raise the child and did so for over 2 1/2 years.

Then the father changed his mind, sued, and won her back and has raised her for the past year and a half.
"

This is so misleading. You imply that the father "changed his mind" 2 1/2 years later. He made his wishes known *legally* when his daughter was only 4 months old. Not 2 1/2 years later. FOUR MONTHS.

Bender said...

He made his wishes known before the child was born.

Synova said...

Oh hey... engaged to be married and she couldn't spell his name?

Wow.

Bender said...

And, yes, there is grounds to suspect a case of baby selling with the buyers providing money to the mother and failing to use due diligence in providing notice to the father.

creeley23 said...

This is so misleading. You imply that the father "changed his mind" 2 1/2 years later. He made his wishes known *legally* when his daughter was only 4 months old. Not 2 1/2 years later. FOUR MONTHS.

Yes, I can see why you say that. I was writing quickly and did not mean to convey that impression.

So:

It's not that the father's rights are inferior to the mother's. The mother gave the child up and the father did too. Another couple chose to raise the child.

After four months the father changed his mind, sued, and won her back. The adoptive couple raised the child for 2 1/w years. The father has raised her for the past year and a half.

Ben Morris said...

If you're actually looking for a "female" reason rather than a legal one, perhaps as women/mothers they just feel the biological bond more keenly, even as applied to the father, and possibly even more than the actual fathers on the court do.

As anatomically impossible as it is, imagine if somehow the roles were reversed, and a mother were denied lifetime parental rights over a few months of estrangement from her baby's father. I'd bet judges (female and otherwise) would bend over backwards to interpret statutes like this in her favor.

Otherwise (and more plausible I think), legal coincidence.

RichardS said...

Perhaps women, or these women, think of parenthood as primarily biological, rather than something based upon actions or an agreement.

Might that connect to gay marriage?

There are some cases in which sperm donors have been sued to pay child support. Here's one:
http://www.cnn.com/2013/01/04/us/kansas-sperm-donation

Bob Ellison said...

The ICWA of 1978 is un-American.

Bob Ellison said...

The ICWA of 1978 is un-American.

CWJ said...

If the birth father's relinquishment of his parental rights was so Shakey, and his wish to raise the girl was so strong, why did he have to rely upon the 3/256 Amerindian claim?

No way do I think the adoptive parents could have seen that one coming. And as a couple who has had neighbors say to our faces that we are not "real" parents, we're used to the dismissal of adoptive parents that I'm hearing from Synova and Inga in this thread.

acm said...

Let's say that the text message doesn't count, that it doesn't matter that he said he would give up his rights in exchange for no child support. I'd like to see the exchange, too, and really, people do say things in the heat of the moment. Okay, forget the text message.

What about his lack of support? Another military dad, Terry Archane, went through a similar situation (baby's mother tried to place the baby for adoption without his consent, while he was away) and the state courts ruled that he should get his daughter back because he showed a good faith effort to support his daughter by continuing to have money set aside for her (the military is very good about this) even after he and the mother split up. Why couldn't Dusten Brown have done what Terry Archane did? And, how long should any parent, male or female, be allowed to simply not support (or attempt to support) a child before that child can be placed for adoption?

Bender said...

The purchasers (whom some call the "adoptive parents") are hardly pure and innocent here. Even if one ignores the cash money they paid to the mother, still they moved the newborn baby to the other side of the country days after she was born, precluding the father from seeing her. Then they did not give notice of the proceedings until some months later, even though the mother had told them who the father was and that he was a registered Indian. In other words, they took active measures to frustrate and impede the father in knowing what was going on and in asserting his rights.

Bender said...

And to argue that the father should have paid the strangers who took his daughter is absurd.

Inga said...

There s no dismissal of adoptive parents in my comments, CWJ. This adoption was based on a false premise that the birth father gave up his righs to the child, that he did not want her. Also there may be some truth to the baby selling element here, as Bender alluded to.

Bender said...

That the father should pay the people who took his daughter is especially absurd given that they had not given notice to him during that time he allegedly refused to pay support. Who was he supposed to send the money to when he had not been given notice?

CWJ said...

BS Inga,

Like I said, if the adoption was so shaky, why is he relying on the 3/256 Amerindian claim.

FedkaTheConvict said...

The father gave up his parental rights via text message before the baby was born

Who knew that was even legally possible? I'm sure there are thousands of men currently on the hook for child support who would gladly give up their parental rights via text message. So where do the send the message? Family Court? Just the child's mother?

The entire notion that one could give up one's parental rights via text message, and that such an action is legally binding, is absurd.

bagoh20 said...
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Cedarford said...

Palladian said...

Race is a bullshit concept, and anything and any law based upon race, including "Native Americans", is bullshit

-------------
One only has to attend a track and field and swimming event, or attend a class within academia that cannot be "race-jiggered" - like a Masters class in quantum mechanics...to realize the person that is full of shit is Palladian.


Race is an undeniable factor in human abilities and detriments within groups of a race or certain ethnicities of one race, it is not, as liberals still scream - a "meaningless social construct.

Inga said...

Because he was a desperate father who used whatever legal means he could to get his child back.

CWJ said...

Inga, if that's the best case he could muster then he had precious little rational legal ground on which to stand in the first place. So if desperation trumps adoption, that sounds an awful lot like dismissing the adoptive parents to me.

bpm4532 said...

A menstrual cycle synchronization thing?

Inga said...

His rights as the biological father who was fraudulently parted with his child trumps the adoptive parents rights to the child. We don't buy and sell children in America.

El Pollo Raylan said...

Why was it appealing to the female Justices to allow this man to intrude on the mother's choice to give the baby up for adoption?

Because they sense that family laws have disfavored men for too long just as workplace laws and customs disfavored women in the past. Turnabout is fair. When a dad steps and wants to parent instead of just run away, they saw this as a good and legal thing.

A problem I see is suppose the facts were different? Suppose the dad had waited too long to change his mind. How long is too long in the next case after this one?

CWJ said...

Then prove fraud Inga. To my knowledge that's not on which the case hinged.

wholelottasplainin' said...

Ann Althouse said...

"I'm guessing they wanted to strike a blow against the white race and to punish that hussy for keeping the baby."

The mother is Hispanic.
**********

Since when are all people whose ancestors came from Spain and Portugal considered non-whites?

As Americans use the term, they instead using a "one drop" racial theory, that if you're 99% Amerind and 1% Hispanic----you're a Hispanic!!!

Tell me, Ann: is Sophia Vergara "Hispanic", or "white" , and how---absent a DNA analysis-- can you tell the difference?

Methadras said...

Michael Haz said...

That child is that man's daughter. His rights are no less inferior to the mother's rights. The mother gave her up; he wants to raise her.

A man steps up to do the right thing and is castigated for it. Society is sick.

The justices did the right thing.


According to the stories I've read, he gave up his right as a parent. Did I read them wrong?

El Pollo Raylan said...

Inga said...
His rights as the biological father who was fraudulently parted with his child trumps the adoptive parents rights to the child. We don't buy and sell children in America.

It didn't sound like fraud to me, but I have only a layperson's grasp of that legal term of art.

He had a change of heart. The defense did show that he had initially relinquished something akin to responsibility--but later found it.

I do think that the Tribe got in involved for racist reasons, to echo Palladian. That's tribalism.

acm said...

Bender, he could've set up a separate account and held money for his daughter that way. The money Terry Archane set aside for his daughter didn't get to her for some time either but he was given credit for it. Or he could've sent money to the biomom while she was still pregnant. The baby had a right to care and food throughout her life, including the time spent in utero and the 4 months outside before Brown changed his mind. If the man who wants to raise her shouldn't provide that food and care (or make some documented attempt to do so) who should?

acm said...

And yes, the mom in the Archane case did just up and vanish midway through her pregnancy. In fact she actually told him she was in a different state with family. The biomom in this case doesn't seem to have disappeared the same way.

Real American said...

She's the Indian Elian Gonzalez.

Synova said...

"Inga, if that's the best case he could muster then he had precious little rational legal ground on which to stand in the first place"

Fathers do generally have no rights at all. They weren't married so he had even less.

What legal grounds do you think he had? People keep on claiming that a text message was a legal document. The legal notification didn't reach him promptly because his former fiance forgot how to spell his name correctly. He had a lawyer assert for him that he wanted custody when his daughter was 4 months and didn't gain it for 2 1/2 years at which time "oh...it's so horrible to tear the child from the only family she's ever known...best interest of the child!"

What are men supposed to do? Other than everything exactly perfectly?

bagoh20 said...
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creeley23 said...

I'm curious how this case got to the Supreme Court. Surely there hundreds of thorny custody cases each year. What makes this one special?

I imagine it was the Native American issue. If so, as much as I care for father's rights -- I come from a family where my mother prevented my siblings and I from seeing our father -- frankly I'd prefer Brown lost. This was an American problem between American citizens.

I want a sunset on all laws making racial exceptions.

acm said...

What are men supposed to do?

Click on the text of the case. He admits that he refused to provide any financial support (after they discovered the pregnancy, but before he left on deployment) because the mother wouldn't move the wedding date forward. That's a bit troubling. So, one thing men are supposed to do is support their children, even when the mothers of those children don't act they way they want them to.

I'm not expecting perfection out of this or any other man. Perfection on both parents parts would've avoided the whole thing. But supporting your kid financially, or at least TRYING to, before the kid is four months old seems like a really low bar.

I really do wonder how long a parent ought to be allowed to go without supporting (or, again, making a reasonable effort to support) the kid. Four months (if we're not counting the prenatal care, which the baby should have a right to) seems to be on the edge, for me. I would probably put the legal limit at three months, even if I feel for a guy who has regrets after that and changes his mind.

I don't know what the mom was supposed to do, either. It sounds like she really thought he was only interested in the baby if she would marry him, and that seems reasonable from the facts provided. When is she allowed to take him at his word, and proceed with the adoption plan? Is she expected to just hang on in case he comes around forever?

Synova said...

How about this one... require a father's permission for adoption... give him a set time after notification (before or after the child is born, starting from when he is "served" with the papers)... if Mom says she doesn't know who he is or can't find him then she makes a legal thingy saying so... if later it turns out that she lied and that the father could have been discovered or notified leave the child in it's adoptive home and put the lying birth mother in jail for a couple of years. Statute of limitations 18 years.

Synova said...

acm... if he was in the military the absolute best "support" he could possibly give the child and mother would be legal status as dependents. He'd get more money and they'd have access to hospitals and doctors, possibly housing (or at least a housing allowance,) and be covered under all his insurance.

That she wouldn't do that is... troubling.

Moving the wedding date up, certainly before his deployment, is NOT him on a controlling power trip trying to make her do what he wanted.

Synova said...

Heck... marrying him and getting all the benefits "for the baby"... housing and doctors, the prenatal care you are so concerned about... he had the ability to ensure she got first class prenatal and medical care and benefits while he was gone... he offered and she said no.



acm said...

In ordinary circumstances, yes, it would be a good idea to move the date forward. But, a guy who refuses to support his kid unless he's married to the mother does seem like a guy on a power trip. He didn't just say it once, he followed through and didn't financially support his kid at all til the adoption agency contacted him. So, yeah, it does look to me like he attempted to manipulate the biomom and that he didn't particularly want his kid til then.

I do agree that when a birth father can be located (and clearly he could) permission should be obtained before the adoption is finalized. It looks like they did try to get his permission four months in? I'm curious as to why it took so damn long for the result to be reached---she was four months when the biodad first was contacted by the agency and 27 months when she was moved, that's crazy.

But morally, I do think you should have to do more than say "marry me" even "marry me NOW" in the space of ten months (cutting three months off the pregnancy) to claim your parental rights. A woman who left her baby with the neighbor or with her own mom or some such for four months and didn't try to resolve the situation would also get no sympathy from me.

acm said...

To be clear: Urging the mom to move the wedding date forward = good idea. No objection from me, that was a good move on his part.

Refusing to support the kid until they were married = bad idea, and manipulative, and gives the very impression that he was only interested in the kid if mom was there too. That's pretty clear.

It's like any other divorce/breakup. I don't care who cheated on who or who didn't try hard enough to save the marriage. If you want to be considered a good parent, you do have to support your kid even when the ex is acting stupid.

Again, though, I wonder if she even wanted the kid? If he had shown some interest in raising the kid, with or without her, maybe she would've turned the baby over to him (or a relative of his, if he was deployed when the baby was born) and been the absentee parent paying child support?

Synova said...

Good night. Pleasant dreams to all.

acm said...

I've read more now and it says that the biofather actually did sign official papers relinquishing the baby, when he was contacted four months after the baby was born. So, it wasn't just the text message. Huh. I wish the damn text message didn't get so much play. He changed his mind one day after signing the real papers, and that's why he had to rely on the Indian thing. The damn text message never really counted at all, except perhaps motivating the mom to pursue adoption in the first place. Well, that's actually kind of boring.

Good night, Synova. Wish I could sleep :(

Lem said...

"Why did all 3 female Supreme Court Justices vote on the side of the father..."

That question insinuates a distinct female perspective that could trump the various legal considerations.

But then again... I didn't read any of it, aside from what is posted here and a few comments.

rcommal said...

Why was it appealing to the female Justices to allow this man to intrude on the mother's choice to give the baby up for adoption?

Because in so doing, it would empower overriding other choosers and thus support distinct choices.

rcommal said...

Hey, how'd I do on the quiz?

zefal said...

Ann Althouse said...

"I'm guessing they wanted to strike a blow against the white race and to punish that hussy for keeping the baby."

The mother is Hispanic.


Are the adoptive parents white?

No way, if the father were white, would these three vote the way they did even if he hadn't given up his claim before the baby was born.

Saint Croix said...

If she had an abortion, wouldn't a father had a claim against her?

Roe v. Wade does not discuss the father at all. (He is relegated to footnote 67).

Three years after Roe, in Planned Parenthood v. Danforth, the Supreme Court finally got around to discussing the missing father. The issue in the case was whether a father has any rights in regard to his unborn child.

The answer, of course, was no.

Danforth involved a dad who wanted his child to live. The Supreme Court did not care. "The obvious fact is that, when the wife and the husband disagree on this decision, the view of only one of the two marriage partners can prevail. Inasmuch as it is the woman who physically bears the child and who is the more directly and immediately affected by the pregnancy, as between the two, the balance weighs in her favor.”

In short, a man has no right to choose. Under our law, a man can be made a father against his will. And, as Danforth makes clear, you can also have fatherhood stripped from you against your will. And this is not simply a loss of custody in a divorce case. Your wife actually makes your baby disappear. And the state says this is “right,” and you are legally helpless to stop it.

In Danforth, the Supreme Court defines the man as a second-class citizen in regard to any pregnancy. Can he be made a father against his will? Yes. Can he have fatherhood stripped from him against his will? Yes. The man has zero choices, as far as the Supreme Court is concerned. When a woman is pregnant, she is given absolute control, vis-à-vis the two sexes.

Saint Croix said...

But is it true that a man has no choices in the matter? After all, a man picks his sexual partner. He might choose a nice, loving woman instead of a shallow or selfish one. He might choose to use birth control. And if his birth control fails, he might choose to step up and be a dad. He might decide to love the mother of his child, and the baby the two of them created together. These are all choices.

Of course this state of affairs is exactly the same sort of choice a woman had prior to “the right to choose” found in Roe v. Wade. She too has a right to choose to have sex with a good man who would make a good father, to use birth control, and to be a happy mom if birth control fails.

In both cases, it is presumed that both mother and father are responsible for baby-creation. If you create a baby, you have moral and legal obligations to that child.

Roe v. Wade upsets all of this. Now we say that men have moral and legal obligations, while women do not. Decades of feminist rhetoric have made it absolutely clear that human reproduction is a choice that only women are allowed to make. Indeed, the Supreme Court writes babies and fathers out of the opinion, as if they do not exist at all.

The Supreme Court has identified the woman as the legal authority who gets to decide if the baby is going to exist or not. If she says “yes,” then it does not matter what the father wants. After saying the father is legally irrelevant and having a baby is a woman’s choice, what do we do with men who choose not to be fathers? We shame them. We put their photographs up at the post office and call them “deadbeat dads.”

“It’s my body. It’s my choice. It’s my baby. Now pay up!”

Under the logic of Roe v. Wade, why doesn’t a man have a constitutional right to terminate his fatherhood? Why can’t he sign a piece of paper that says, “I don’t want to be a father”? Why do women get to terminate their obligations, not to mention the baby? Men get lectures about duty and responsibility, while women get compliments about how autonomous they are, and how right it is for them to have an abortion. This is a double standard, and there is nothing egalitarian about it.

Of course, we are hard on men because we are thinking about the baby. Babies need fathers. And so our strict rules in regard to fathers are justified. But men are right to scoff at the hypocrisy of a feminist legal system that disdains fathers, and babies, until a woman decides to value them.

Carl said...

I find it depressing, but not very surprising, that this entire question is discussed in terms of procedural bullshit. The minutiae of pettifoggers.

It is statistically implausible that the child has an identical emotional bond to both her father and the adoptive parents. One, or the other, loves the child more and better, and stirs in the child a deeper and more resilient response. Observe them quietly for a day and which it is would be clear enough.

But it does not apparently occur that that criterion -- the present quality of parenthood offered by each party with respect to the present and future child -- should determine who rears her.

Nope. We need to see who signed what piece of paper when, or did which kind of meanness to another adult in the controversy, or who is using this small person in service to the more noble utopian social goal.

American fertility is falling below replacement. Perhaps we deserve no better.

Renee said...

Why? Because Indian laws applied.

Did it matter how little Native American the child was? No.

Some states give rights to fathers, some don't.

I could be a resident of Massachusetts and at 38 weeks pregnant move to a state, where the biological father had no rights.

Does it matter I was only a resident for two weeks? No. It only matters that I'm resident.

That dad was an enrolled member. The rules applied.

A father can only assert his rights after birth. If he isnt informed of the labor/delivery and the birth mom has the adoptive parents present at birth. Exactly.... when was he suppose to assert these rights, before the adoptive had the baby.

Biological fathers are scared of asserting their rights, because the mom may used a restraining order to stop being harassed by dad.

Mary said...


Still, it's clear that he decided *right away* that he wanted custody.
----

the beauty of babies is:
you get 9 months forewarning that they're coming...

the adoptive parents were in the delivery room for this one.

clearly the adoption was set up pre birth, pre his being deployed...

the bit about his being willing to provide financial support just not being asked or knowing how to independently do this without special military hand holding: who did he think was providing for the child he believed he 'owned' -- your words; or taking care of her mother when she was still incubating in the womb?

without food, clothes, diapers or money for proper shelter, his baby would not have survived its earliest days. he gave no thought apparently to the child's survival, and let others make those choices.

another man was there, and his wife, in action and in presence and that beautiful child you see there is the result of the head start in life the adoptive parents and birth mother collectively provided.

he dudn't own the kid.

good luck to him in caring for his next one *right away*...

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gerry said...

The mother is Hispanic

White, red, brown, or black Hispanic?

Dante said...
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Dante said...

This bothers me in the Supreme Court Ruling. Dad wanted the baby. Yet, it seems if his parents, brother, sister, or even a member of the Indian tribe had sought to formally adopt the child, the non Indian adoption could not have taken place. Or if he had attempted to adopt the child? Then there would be no case whatsoever.

It seems to me a condition in this clause was missing, but the intent is clear:

Section 1915(a) provides that “[i]n 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.” Contrary to the South Carolina Supreme Court’s suggestion, §1915(a)’s preferences are inapplicable in cases where no alternative party has formally sought to adopt the child. This is because there simply is no “preference” to apply if no alternative party that is eligible to be preferred under §1915(a) has come forward.

I'm sad to see the intent of this clause worked around by the Supreme Court, even though, as others have noted, the whole thing sucks for the child.

TMink said...

"Consider that the states have traditionally handled family law, and Congress's power arises from the Commerce Clause."

What a quaint statement. Totally true from a constitutional point mind you, but sadly outdated.

Trey

Nathan Alexander said...

I'm saddened that the father was not able to win custody.

But I'm pleased that the court refused to grant him custody based on laws that discriminate on the basis of race.

That's a step in the right direction.

The 3 female Justices did not vote on the side of the father. They voted on the side of racial discrimination and the primacy of Federal Govt Authority.

That their vote, if it prevailed, would have benefited the father is only a coincidence.

Abortion Rights are just an issue to keep single-issue women on the Liberal Plantation. When it comes to brass tacks, the Liberal Cause of Lazy Moral Superiority always wins.

C R Krieger said...

Our Professor said, at 6/25/13, 7:14 PM, in response to the assertion:

"I'm guessing they wanted to strike a blow against the white race and to punish that hussy for keeping the baby."

"

The mother is Hispanic."

While we use "Hispanic" as a race, I doubt it is.  I bet you can corner 100 people and at least a quarter will till you "Hispanic" includes people from Brazil.  It is a terrible way of expressing what is going on in this Hemisphere.  There are serious issue out there, like the treatment of Indigenous People in some countries in this hemisphere, but the term "Hispanic" does nothing to help us see those issues.

As for "I Have Misplaced My Pants", he may be a "grownup" but chances are his brain is still developing. What, 23, 24 years of age to get there?

I did like the E Warren comment, since G2 lost yesterday.

Regards  —  Cliff

Lem said...

I take it the period when splitting the baby, the biblical time window when the child could have been cut up and divided among the relevant interested parties, has elapse.

People never pay attention to deadlines.

Bryan C said...

"One, or the other, loves the child more and better, and stirs in the child a deeper and more resilient response. Observe them quietly for a day and which it is would be clear enough."

That's a dangerously subjective standard. But if we go there, why stop with parents? If I show greater love for your newborn, do I get to keep it? If the appointed expert says so, what possible reason for appeal would you have?

No. We won't fix anything by giving family court judges yet more power to arbitrarily control people's lives. Laws are also arbitrary, to some extent, but they're also transparent, consistent, and determined by the people.

X said...

no your honor, you're out of order. I don't owe child support. didn't you read my tweet?

Freeman Hunt said...

If he wanted to be involved with the child, he should have supported the child whether the mother agreed to marry him or not. Kids aren't a "when I feel like it" gig.

But that has nothing to do with this outcome, which was a ruling on a race-based law.

Freeman Hunt said...

If he signed the papers and withheld support, I'm not sure what else the other people involved should have done. I feel for him, but decisions have consequences.

Big Mike said...

Why did all 3 female Supreme Court Justices vote on the side of the father..."

They received their orders and they followed them. Ideology trumps gender when you are a far left-winger.

Freeman Hunt said...

In a suddenly perfect world, all of these adults would put aside their grievances with one another and work out visitations and involvement. Even though the adoptive couple won, they're certainly not required to cut out the biological father entirely. Certainly the girl sees all of these adults as family by now, might help her develop a view of the world as stable if the adults make it so after these years of tumult.

Birches said...

Dang. I wait all day for a thread that opens up after I have dinner guests.

A couple of points:

Those who believe that the 3 women felt some sort of pang of guilt about the lack of rights for fathers are wrong. Scalia did. That's why he has a dissenting opinion that no one else signed onto. The others were just playing racial politics.

And a point about the whole marriage thing. Servicemen these days are all about marriage, because then they get more money. How permanent or real these marriages turn out to be is another question. At first I was puzzled why a pregnant woman who's partner wanted to marry would so soundly reject him. But now I think I suspect it was the money factor. I don't think she trusted his motives.

One of my own family members is in the Army. He secretly married a girl near his base in Alaska and didn't tell any of us (or his former girlfriends whom he visited on leave). Yeah, big mess, but his pocketbook didn't really mind. I know another guy who's brother was KIA. Three months later a girl shows up on their doorstep claiming to be his wife. The family had no clue.

lemondog said...

If Wiki is correct, and the facts undistorted, under Case History it reads like a screw-up in the initial notice of proposed adoption:

Although Oklahoma law requires that an Indian tribe be notified, Maldonado's attorney misspelled Brown's name and provided an incorrect date of birth, so the tribe was not put on notice of the proposed adoption.[fn 2][20] After receiving permission from Oklahoma authorities, based in part on the misidentification of the child as Hispanic instead of Native American, the Capobiancos took the child to South Carolina.[fn 3] Four months after the birth of the child and just days from deployment to Iraq, Brown was served with notice of the proposed adoption.[21] Brown signed the document, believing that he was relinquishing rights to Maldonado.[fn 4][21] Brown, once he realized what he was signing, immediately tried to retrieve the document, and failing that, contacted the Judge Advocate General at Fort Sill for assistance.[21] Seven days after being notified of the proposed adoption by the Capobiancos, Brown had obtained a stay of the adoption proceedings under the Servicemembers Civil Relief Act[fn 5][21] and he deployed with his Army unit to Iraq.[fn 6][21]

Beautiful, beautiful child.

Amy H said...

I agree with (non-female) Scalia:

"While I am at it, I will add one thought. The Court’s opinion, it seems to me, needlessly demeans the rights of parenthood. It has been the constant practice of the common law to respect the entitlement of those who bring a child into the world to raise that child. We do not inquire whether leaving a child with his parents is “in the best interest of the child.” It sometimes is not; he would be better off raised by someone else. But parents have their rights, no less than children do. This father wants to raise his daughter, and the statute amply protects his right to
do so. There is no reason in law or policy to dilute that protection.
"

Additionally, this ruling does not turn this three year old back over to the people who wanted to adopt her, it just remands the case back to the South Carolina courts. the Indian Child welfare Act is still the law and I think the courts will likely not remove her from the custody of her father who has been ably raising her for the last 18 months absent a showing that he is unfit.

Additionally also, these cases gripe my cookies for this reason: adoption should be about finding a child a home not finding a home a child. In this case, in the Baby Jessica case, in the Baby Richard case; if the putative adoptive parents had handed the baby back to its biological parent when that parent first declined to give away their child, the adoptive parents would have been distressed but the child would not have been. Instead, these people fought the return of baby girl (and baby Jessica and baby Richard)until these children were toddlers and bound to be traumatized.

HA said...

Race trumps gender in the leftist grievance-monger pecking order. If you don't believe me, ask Hillary.

GREGORY S.J. BEUKE said...

This poor child doesn't need to suffer from these people. This case can be best handled with Wichita Family Lawyer . Thank you