Analysis Human Rights

Adoptive Couple v. Baby Girl: Who Is a Parent Under Law?

Elizabeth Chen

Yesterday, the Supreme Court heard oral argument in the case Adoptive Couple v. Baby Girl. While arguments touched on a number of topics, they centered on an issue crucial to all of us – how a parent is defined under the law.

Yesterday, the Supreme Court heard oral argument in the case Adoptive Couple v. Baby Girl. While arguments touched on a number of topics, they centered on an issue crucial to all of us—how a parent is defined under the law. This question is particularly salient as we consider immigration reform and marriage equality, both of which touch on what constitutes a family and how the law does—or does not—support it.

At stake in this case is the fundamental right of individuals to parent their biological children, and of minority and politically disadvantaged communities to protect their cultural identity and integrity.

Many of the facts in the case are disputed. But there are a few that we know to be true: Dusten Brown is Veronica’s biological father. He was estranged from Christina Maldonado, Veronica’s biological mother, at the time of her birth. Dusten was informed of Christina’s intention to put Veronica up for adoption just a few days before he was scheduled to deploy to Iraq. As soon as he found out that his daughter was about to be placed for adoption outside the family, he sought custody and formal legal recognition as her father.

Because Dusten is an enrolled member of the Cherokee Nation, and his daughter, Veronica, is eligible for membership, the federal Indian Child Welfare Act (ICWA) governs this dispute.

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And with good reason–there is a long legacy of discrimination against Native American parents, especially when it comes to raising their own children. This discrimination is largely based on unfounded myths and stereotypes about their fitness as parents and biases against traditional Native parenting styles. Beginning with federal policies in the early 1860s and continuing through the 1970s, the U.S. government deliberately took Native American children from their families and communities and placed them in non-Native homes or in boarding schools. After years of advocacy by the Native American community and with thousands of pages of testimony describing how these practices were devastating to tribal families, traumatizing to Native children and depleting of tribal populations, Congress passed ICWA.

The law enhances the ability of Native Americans to parent their children with dignity by providing two major protections: (1) deeper cultural sensitivity in child welfare placements, and (2) increased respect for tribal determinations in child welfare matters. The law has been effective at reducing rates of overrepresentation of Native Americans in both foster care and adoption from their peak during the 1970s, but to this day Native American children continue to be three times more likely than their white counterparts to be removed from their homes and placed in foster care. Biases persist, in spite of the protections set up to alleviate and eradicate them, and the law is still essential to protect Native American children, parents, and communities from abuses in the child welfare system.

The protections of ICWA extend to both Native American parents and tribes, providing them with, among other things, the right to intervene in voluntary adoption proceedings. In order to qualify for this protection, Dusten needed to be considered a legal parent. During yesterday’s oral argument, the justices were concerned with that very question. Family law and its definition of parentage varies from state to state, and also under federal law. In this case, if the justices follow the federal definition of who is a parent under ICWA, then Dusten’s biological relationship to Veronica and his acknowledgement thereof is determinative of his legal status as an Indian parent with rights under ICWA. But if the justices use the state’s definition in South Carolina, where the adoption occurred, Dusten could not object to the adoption as a legal parent because he did not support Veronica’s mother during her pregnancy or immediately after the birth, in spite of his acknowledgement of paternity days after learning of her impending adoption. The Supremacy Clause establishes federal law as the law of the land, and therefore, ICWA, rather than state law, should govern in this case.

This law only applies to children who are members or eligible for membership of Native American tribes and their parents, but it should be a best practice for all child placement determinations. Culture and community matter. While the most important things a child needs are love and stability, ideally children would have the opportunity to be raised by those who share their heritage and can teach them the culture and traditions of that heritage. Moreover, it is important for the law to presume that members of historically marginalized communities are legitimate and fit parents unless proven otherwise in order to correct for the bias that so often still exists to the contrary.

Adoptive Couple v. Baby Girl is a complex and emotionally wrenching case for all involved – the biological father, the potential adoptive parents, the Cherokee tribe, and Veronica herself – but ICWA must be upheld in order to give Native American parents the opportunity to parent their biological children and tribes the ability to protect their cultural integrity by providing consistency across states and in accordance with congressional intent.

News Human Rights

Advocates Cheer New Indian Child Welfare Act Regulation

Nicole Knight Shine

The first comprehensive update issued since ICWA's implementation in 1978, it requires state courts to ask all participants in child custody proceedings whether a child is an “Indian child," legally defined as being a member of, or eligible for membership in, a federally recognized tribe.

A new federal rule issued this month under the Indian Children Welfare Act could keep more Native children in tribal communities, advocates say.

The new regulation requires state child custody proceedings to more consistently apply the federal Indian Child Welfare Act (ICWA) by imposing several new standards. The first comprehensive update issued since ICWA’s implementation in 1978, it requires state courts to ask all participants in child custody proceedings whether a child is an “Indian child,” legally defined as being a member of, or eligible for membership in, a federally recognized tribe.

The regulation, issued by the Bureau of Indian Affairs and set to go into effect in December, also clarifies when child custody cases can be transferred to tribal courts, and requires parents and the tribe to be notified when a family is involuntarily relinquishing a child, among other key provisions.

Prior to ICWA’s enactment, an estimated 25 to 35 percent of Native children had been separated from their families in what congressional testimony at the time described as an “Indian child welfare crisis of massive proportions.”

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Dr. Sarah Kastelic, executive director of the National Indian Child Welfare Association (NICWA), called the new federal rule a “historic step” in a “child welfare system [that] still falls short for our Native children.” Native children, according to Kastelic, are four times as likely as white children to be removed from their homes on their first encounter with the courts, even under identical circumstances.

American Indian and Alaskan Native children are overrepresented in the country’s foster care system at more than 1.6 times the expected level, according to a 2007 report by NICWA and the Kids Are Waiting campaign, a project of The Pew Charitable Trusts. In Alaska, for example, Native children make up 20 percent of the population, but account for about 51 percent of children in foster care, the report noted.

Proponents of the regulation point to the complex and much-publicized case of Baby Veronica. A 2013 U.S. Supreme Court decision required Cherokee Nation member Dusten Brown to turn over his biological daughter, Veronica, to a white South Carolina couple who had raised her the first two years of her life, as Rewire reported.

Critics, meanwhile, argue that ICWA’s provisions leave children to languish in foster care longer than non-Indian children.

Timothy Sandefur, vice president for litigation with the Goldwater Institute, an Arizona-based libertarian public policy organization that has ICWA-related lawsuits pending in state and federal court, said the law’s provisions ignore the “best interests of the child.”

Sandefur said he’d ultimately like the U.S. Supreme Court to find ICWA unconstitutional.

“This is a matter of racial discrimination, because this law creates a separate and unequal system for Indian children,” Sandefur said in a phone interview with Rewire.

A 2005 report by the U.S. General Accounting Office analyzing foster care in four states found “no consistent pattern” between the length of time children covered under the ICWA remain in foster care compared to children who are not.

Commentary Sexuality

Is the ‘Panic’ Over Sexting Really Warranted?

Eleanor J. Bader

Amy Adele Hasinoff’s Sexting Panic: Rethinking Criminalization, Privacy, and Consent is a reasoned, if academic, look at the ways teens use social media and the Internet to flirt, seduce, and tease, often transmitting sexual images that are intended for private viewing.

University of Colorado Denver professor Amy Adele Hasinoff’s Sexting Panic: Rethinking Criminalization, Privacy, and Consent, out last month from the University of Illinois Press, is a reasoned, if academic, look at the ways teens use social media and the Internet to flirt, seduce, and tease, often transmitting sexual images that are intended for private viewing. While occasionally glib, the book is nonetheless a thoughtful entry point for those interested in how new media technologies can be used and misused.

Hasinoff did not, herself, interview teens for the text. This is a disadvantage, since first-person narratives would have made the book more compelling. Instead, she distills numerous reports, studies, and news accounts about the phenomenon and the panic that ensues whenever adults get word that young people are swapping naked photos. Her starting argument addresses the fact that “teen sexting is often framed as a form of child pornography or as part of a cyberbullying epidemic … yet for many people, the practice is a form of interpersonal intimacy.” The truth, Hasinoff writes, is that people of all ages and persuasions sext, willingly and playfully—a reality that critics of the practice tend to ignore in favor of hyperbolically dire commentary.

That said, problems routinely arise when a photo recipient decides that she or he wants to share the images with others. When pictures that are meant to be private become public without the consent of the sender, Hasinoff notes, the person who spreads the images is violating implicit assumptions about privacy, trust, and the relationship itself. As Hasinoff sees it, just as medical records cannot be shared without the explicit consent of the patient, violators should face legal consequences for any infraction—no matter with whom they share the photos, or how innocent they believe their intent to be. Sexting is an issue of consent and privacy, Hasinoff writes: simultaneously a sex act and a speech act.

The unauthorized sharing of pictures can present tremendous problems for teens, she continues, because it can lead to law enforcement involvement; this is especially problematic since the law defines any and all explicit images of a person under the age of 18 as child pornography. In terms of practical implications, Hasinoff writes that “a number of teenagers the United States involved in sexting have been charged with producing, possessing, and distributing” illegal imagery—in other words, pictures of their friends in various states of undress. This leaves consensual sexters extremely vulnerable: Although the numbers are small, it’s worth noting that in 2009, 134 people younger than 18 were arrested for, Hasinoff writes, “consensually creating or sharing images in the context of romantic relationships or for sexual attention-seeking.” Yes, you read this correctly: 134 young people were arrested for texting images of themselves to someone else. Surprisingly, it did not apparently matter whether the recipient was their age or an adult.

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Although Hasinoff offers no hard facts about the who, what, when, or where of most of these arrests—which weakens her argument somewhat—she does offer a realistic assessment of the probable enforcement patterns. “Since texting is a relatively common behavior and decades of research have demonstrated systemic racism and homophobia in the justice system, both new sexting misdemeanors and existing child pornography laws are likely being disproportionately applied to queer youth, lower-income youth, and youth of color.”

Hasinoff illustrates the irrationality of current law-enforcement behavior with several anecdotes. One takes readers into Tunkhannock, Pennsylvania—recent census reports describe it as a middle-income borough of about 1,800 people—where in 2009, parents of nearly 20 kids attending the local high school received a letter from the Wyoming County district attorney’s office informing them that a random search of student cell phones found their children in possession of “child pornography.” At issue were photos of three then-13-year-old girls in white bras, standing outside a shower with towels covering their torsos. The photos of the girls were found on the phones of every child whose parents were contacted.

The DA offered the parents a deal: The charges would be dismissed if their kids spent six months on probation, submitted to random drug tests, and completed an unspecified “education program.” Most accepted the offer but the three bra-wearers did not. They contacted the American Civil Liberties Union of Pennsylvania to contest the charges.

According to Hasinoff, the ACLU bungled the case by arguing that “forcing the girls to attend [the] education program would violate their parents’ right to control the upbringing of their children and the girl’s right to freedom from compelled speech.” Although Hasinoff concedes that the ACLU was sympathetic to the teens, the lawyers’ exclusive focus “on desexualization and innocence—that the girls took the photos for ‘fun’ and were topless only because of the summer heat—precludes a larger discussion about teenagers’ right to freedom of expression.”

Perhaps unwittingly, she writes, the ACLU reinforced the notion of teen girls as irresponsible, hormonally driven, and flighty, too young to be aware of their sexual prowess. Although the ACLU triumphed by avoiding criminal charges for the arrested teens, Hasinoff believes it was a hollow victory since it did not reinforce the idea that girls had a right to send photos in a deliberately flirtatious manner to whomever they pleased. What’s more, she is annoyed that schools, parents, and lawmakers typically “punish girls who sext consensually while ignoring boys who violate their privacy.” And of course, policymakers typically place far less emphasis on boys who send photos of themselves to friends or potential hook-ups.

Nonetheless, while Hasinoff is clearly right to acknowledge the blatant gender disparity, she is a bit off the mark in other ways. By not differentiating 13-year-olds from 17- or 18-year-olds, she sidesteps the enormous developmental differences between the two cohorts in terms of maturity levels and knowledge of legal and social systems. Still, she is correct that “the idea that innocent girls need to be protected from themselves—from their innately irrational brains and the overwhelming biological forces of their sexuality” is pure bunk. This notion of girls who send photos as suffering from low self-esteem and a need for attention—the mantra of many child advocates—needs to be turned asunder, since many girls know exactly why they are sexting potential hook-ups.

Additionally, the idea of “girls gone wild,” reinforced by the disproportionate punishment of female sexters, ignores the fact that many teenagers and young women responsibly manage their sexuality.

This is actually the crux of the matter, since far too many adults continue to believe that it’s normal for boys and young men—but not girls or young women—to seek sexual expression. Needless to say, victims of sexual assault have long been blamed for provoking attacks, and Hasinoff points a finger at a similar tendency when it comes to sexting. That is, “out of control” girls are blamed for photos going viral, whether by peers or by adult men who somehow gain access to them. The implication of this punishment framework, she writes, is that posting images online is always dangerous and should always be avoided. A better approach: Teaching young people that they should never share photos non-consensually, and creating a system of justice to reinforce that.

Sadly, she writes, this message is rarely promulgated since the bulk of youth programs “focus on changing girls’ attitudes and behaviors instead of trying to modify male behavior to reduce the incidence of sexual violence and harassment.”

In addition, Hasinoff notes that the mistaken assumption that all digital images are public is pervasive, which is why she argues for a legal crackdown on those who share images without the explicit consent of the person depicted. Unfortunately, she makes it sound simple, but it is not. Indeed, the issue of consent in this context is incredibly complicated and layered, at least for me. For example, what happens when a person receives a photo and then forwards it without first asking permission, and the second recipient then forwards it to his/her friends, with the cycle repeating? How might we enforce consent laws? Would every person who forwarded the image be considered complicit and at fault? What would an appropriate punishment look like? If such consequences were to be put in place, these and other questions need to be considered by policymakers, youth leaders, parents, and child advocates.

In the absence of much legal precedent, Hasinoff’s alarm about the way sexism is used to punish and police girls who sext, rather than cracking down on those—mostly, but not exclusively, men and boys—who violate privacy by sharing images without authorization, provides a cogent reminder about the magnitude of concerns governing digital etiquette. Many of Hasinoff’s insights are spot-on in this respect: “The idea that criminalizing sexting protects teens, especially girls, from their own ill-considered decisions,” lies at the core of contemporary responses to sexting, she writes. To date, the response has rested largely with girls: Telling them not to sext, as if this alone will protect them from being harassed, menaced, raped, stalked, or intimidated. Hasinoff further explains that “men and boys are rarely asked to do any work to resist the ill effects of sexualization; this task falls almost entirely to girls and women.”

Although I am certainly sympathetic to Hasinoff’s argument that telling kids not to sext is meaningless—they’ll clearly do it anyway—I’m simultaneously sympathetic to parents who want to caution their children about the behavior’s potential to wreak havoc. As Hasinoff herself says, there are presently few consequences for recipients who spread sexts nonconsensually.

To her credit, Hasinoff does offer a list of sexting tips and recommendations that zero in on present-day realities about rape, rape culture, and the prevalence of sexual assault. It shouldn’t be necessary to do these things, she writes, but it is nonetheless wise to crop or blur one’s face or other identifying marks out of suggestive photos; delete old photos often and ask partner(s) to do the same; and consider using an app that deletes pictures automatically after they’ve been viewed. She further urges state legislatures to decriminalize consensual sexting, repeal age-specific sexting misdemeanors, and add age-span exemptions so that if there are fewer than four years between partners exchanging photos no one can be prosecuted for distribution of child pornography. Likewise, she tells adults to learn the difference between consensual texting and privacy violations and suggests the development of a “harm-reduction approach to deal with privacy violations and harassment.” Finally, she prods us to demand that media companies build privacy protections into the design of their devices so that it becomes more difficult to forward photos from person to person.

Common sense? Absolutely.

Although Sexting Panic diminishes sexting’s downside by paying too little attention to the psychological and physical abuse that can result when images meant to be private go viral—whether post-break-up, as an act of revenge, or simply by accident—it is a solid counter to moralists who can’t fathom anything good coming from the practice. This makes it an important contribution to an important social issue. Indeed, as Hasinoff argues, sexting is not likely to go away, so we’d best figure out how to maximize the joy it can bring while minimizing the harm it can cause.