What's Best for Veronica? Amend the Indian Child Welfare Act.

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What Women Really Think
Aug. 28 2012 10:00 AM

In the "Baby Veronica" Case, Shouldn't We Ask What's Best for the Child?

Marcia Zug knows a lot about family and Indian law. In her recent Slate piece, she swims against the strong current of outrage that ensued when “Baby Veronica,” age 2½, was taken from her adoptive parents, the Capobiancos—with whom she’d been placed at birth—and returned to her biological father, Dusten Brown, a member of the Cherokee tribe. Zug does a great job explaining and justifying the Indian Child Welfare Act, a law necessitated by the disgraceful practice of separating Indian children from their tribal parents.

Zug is probably even right that a strict reading of the law requires that the child be returned to her birth father—who voluntarily gave up his rights as a parent before he changed his mind several months later. But she avoids the most important question:

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What’s best for Veronica?

Here’s where I think my personal rather than my legal experience gives me a different perspective on the case. My partner and I became foster parents to our twin daughters, now approaching their eighth birthday, when they were just 2 months old. To safeguard my daughters’ privacy, I will spare you most of the details about the long and often anguishing process by which we moved from foster to adoptive parents in Philadelphia—when our kids were the same age (2½) as Veronica. But one moment in the bureaucratic mess sticks out in my mind as especially relevant: It was during one of many long conversations with the social work supervisor who had done the most to help us from the start. As I tried to make sense of the insanely protracted process, she cut me off and made a weary statement she’d probably made many times before, to many other frustrated dads: “It’s not about the kids.”

No, it wasn’t. It was (kind of) about the law, about the perceived importance of biology, and about the almost cultish faith in rehabilitation. And with the children’s welfare set to one side, Philadelphia has been rocked by several tragically sensational stories involving kids returned to their birth parents despite the red lights flashing in everyone’s eyes. In one particularly gruesome case earlier this year, Khalil Wimes died after years-long physical abuse and neglect by his birth parents. After Khalil had been in a foster home for more than two years, Judge Charles Cunningham returned the little boy to his biological parents despite manifest warning signs (not the least of which was the plain fact that all five of his siblings had been removed from the mother’s care).

Cases like Khalil’s are enough to suggest a serious flaw in the strong presumption given to biology over day-to-day reality, and though there is absolutely no abuse alleged in Veronica’s case, in some ways the principle behind it is even more troubling—because it’s not about a parent’s right to his child, but rather about a tribe’s. It’s tribalism in its most literal, and block-headed, sense. Never mind that Veronica’s birth mother voluntarily gave her up for adoption. Never mind that Brown didn’t want anything to do with the soon-to-be-Veronica during the pregnancy. Never mind that he later renounced all rights as a parent. Because of the Indian Child Welfare Act, he was able to wipe the slate clean and get her back. In the legal but not necessarily actual “interests of the tribe,” even Brown’s agency is erased, with the law seeming to imply that Native Americans need protection from themselves as much as from the white majority.

Zug never discusses what’s in this child’s best interest, probably because doing so would be inconvenient for her lawyerly defense of tribal cohesion. But there’s no getting around the plain fact that, in this case, the law punishes the child in the much less direct interest of the tribe. That’s not all.  By allowing Brown to unravel the adoption, the ICWA contributes to the destructive narrative that an adoption is never a sure thing, and could make even more difficult the search for adoptive parents.

Zug says that everyone in this case knew what the law requires. But as a parent who struggled to navigate the complexity of the whole adoption process, my experience teaches that even a legal background is sometimes scant help. One practical suggestion: Amend the law to impose sanctions on the adoption agency that should have known better. But we should go further than that, including placing a strict time limitation on a biological parent’s right to change his or her mind and employ ICWA to that end.

By the age of 2 1/2, a child has formed deep attachments to those she’s spent time with. Tearing that child away from her parents surely will cause emotional harm, which is one reason that the federal Adoption and Safe Families Act requires that, if a child is in foster care for 15 months out of any 22 month period, the goal must shift from reuniting that child with his or her parents to a different permanency goal—usually, adoption. But according to Terry Cross, Executive Director of the National Indian Child Welfare Association, the harm isn’t enough to counter the rights Veronica will gain, including “voting in tribal elections, running for office, taking advantage of tribal scholarships and benefits, participating in customary and ceremony rights, plus [her] relationships with extended families.” Does anyone really think that these benefits—which Veronica might or might not take advantage of in any case—outweigh the psychological harm to a child taken from the only home she knows? If you’re still wavering, keep in mind that she’d be eligible for membership in the tribe even if she’d remained with the Capobiancos.  

There’s an irony here that I’m hesitant to acknowledge, but that’s inescapable: Applied in this kind of case, the law betrays the same kind of abstract, dehumanizing thinking that has allowed the horrific treatment of Native Americans in the first place—including the involuntary disintegration of families that Zug eloquently decries. To the extent that the ICWA compels the outcome in this case, the law is, to quote Dickens, “an ass,” and it needs to be amended immediately.

John Culhane is professor of law and co-director of the Family Health Law and Policy Institute at Widener Law Delaware.

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