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man repairing girl bike smallApril 18th, 2013 by Robert Franklin, Esq.

Bad facts make for bad law. It's an old saying around legal circles that's proven itself correct far too often to not still be hanging around. Put simply, when the facts of a case are heart-wrenching, judges, being only human, sometimes rule in order to reach the right conclusion even if that contradicts legal precedent. So, for example, in a particularly gruesome murder case, a judge might tend to ignore the policeman's violation of constitutional protections of the suspect in order to make sure the perpetrator goes to prison. The facts of the case are bad, the judge rules with his heart, not his legal training and, if the case becomes a precedent, the ruling will apply to cases in which the facts are much less compelling. What looked good in the first case turns out to curtail the rights of other defendants regardless of their guilt or innocence. In that way the judicial system, once on the wrong track, tends to stay there.

I have the sinking feeling that we're in for another proof of the adage. An adoption case has reached the Supreme Court that heard oral arguments on it yesterday. And sure enough, the facts are bad.

A man and woman had a relationship, but weren't married. She became pregnant and gave birth to a daughter whom she placed for adoption. The father's name was on the birth certificate and he signed at least one document terminating his parental rights and acceding to the adoption. (At one point he claimed to have been unaware of the nature of what he was signing.) In due course, the little girl was placed with an adoptive family. But when she was two years old, the father either changed his mind or realized for the first time that he'd signed away his rights. He then filed documents in court asserting his parental rights.

He was able to do that because he is part Cherokee Indian and the adoptive parents are both of non-Indian blood. In that situation, there is a federal law that governs the case called the Indian Child Welfare Act that places Indian parents above all others when the rights to an Indian or part-Indian child are concerned.

The historical context of the law leave little doubt about why Congress passed it. Among the seemingly endless stream of outrages perpetrated against aboriginal Americans by people of European ancestry, one of the basest was the taking of Indian children away from their parents to be placed with Anglo adults, educated in Anglo schools and steeped in the Christian religion. This deeply offensive act of cultural imperialism finally came to be seen by Washington for what it was and, 100 years or so too late, The Indian Child Welfare Act was passed.

Under it, the father in the case before the Supreme Court, Dusten Brown, was able to assert his parental rights because he is some fractional part Cherokee Indian. The lower courts read the Indian Child Welfare Act and turned the little girl over to him to raise. He's currently doing so in Oklahoma. Meanwhile, the adoptive parents, Matt and Melanie Capobianco claim the adoption was completed, Brown voluntarily terminated his rights and that should be that.

This article gives us some idea of the questioning by the justices at oral argument (CNN, 4/16/13).

"If the choice is between a mother, a biological father, or a stranger, and if the father's fit," asked Justice Sonia Sotomayor, "why do you think that the federal statute requires that it be given to a stranger rather than to the biological father when the statute defines 'parent' as the biological father?"
But Chief Justice John Roberts questioned the assertion Brown was initially enthused about becoming a father.
"There is no doubt he paid nothing during the pregnancy and nothing at the time of the birth, to support the child or the mother," he said. "So he was excited by it; he just didn't want to take any responsibility."

The Roberts line of reasoning is what we see in adoption cases all too frequently, and there's a big problem with it. Actually, there are several. The whole concept behind it is that an unmarried father, unlike every other parent, must prove his parental bona fides before the law will accord him parental rights. An unmarried mother can be the world's worst, but nowhere does the law say "she's has no parental rights." If she proves herself to be unfit, she can lose those rights, but she at least had them and the opportunity to exercise them. Plus, the state has to give her notice of its intention to terminate them and an opportunity to rebut the state's case.

But a single father finds himself playing an entirely different ball game. He has to prove his parental worth before a court will say he's a parent with rights to his child. For her, biology is all it takes; for him it's biology plus. Plus what? Well the law doesn't say. It's clear he has to do something, but what's enough and what's not is left for him to guess at, even if he's read the statutes and case law.

So the blatant sexism of much adoption law is one of its problems. Another is that, by requiring the dad to do the things required to be a father, many states place a father's rights in the mother's hands. If she tells him about the child and permits him to be part of his/her life, fine. But if she doesn't, she can easily deprive him of his rights and the child of its father. That's precisely what happened in California two years ago in the case of a young Hispanic father I wrote about at the time. He was thrilled with the prospect of having a child, but Mom did just enough to keep him out of the little boy's life, including refusing the money he offered, that the court approved the adoption.

Indeed, the Supreme Court itself approved a very similar adoption in the case of Lehr v. Robinson. The dissent in that case excoriated the majority by pointing out the lengths to which the mother had gone, moving from state to state for example, to keep the father out of the child's life. What does it mean to have rights if someone else is empowered to decide whether you can exercise them? Not much.

Finally, as I've said many times before, when a child has a fit father who wants to care for it, what sense does it make to force it to be adopted? Again, not much. That's particularly true given the fact that qualified adoptive parents are a scarce resource. They're far outnumbered by the children without parents who are crying out for them. So our court's zeal to force adoption on children with fit fathers simultaneously deprives children who don't have parents of the adoption they desperately need.

So, when Justice Roberts talks about Dusten Brown's short-lived failure to do what Justice Roberts wants him to have done, that's what he's talking about. Roberts is arguing for a rule of law that uniquely disadvantages unmarried fathers, placing their rights in the hands of the mothers who bear their children, all the while depriving other children of adoptive parents. It's a thoroughly awful legal regime under any circumstance and moreover one that's not to be found anywhere in the Indian Child Welfare Act.

On the positive side, Sotomayor's take on the case makes complete factual and legal sense. If there's a fit father, the child doesn't need to be adopted. It's a simple concept, but it's also one that those who are determined to treat fathers and mothers differently regarding their children find hard to grasp.

And when the facts are bad, it becomes all the easier. We'll see what happens.

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