Native American adoption laws

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Joined: 04/12/03
Posts: 1686
Native American adoption laws

http://www.cnn.com/2012/01/08/us/south-carolina-indian-adoption/index.html?hpt=hp_t2

I know we've done some similiar debates, but this one seems to have a new twist on it.

Basically, a young couple are going to have a baby. They both sign a document saying they are placing the baby in an open-adoption situation. The father doesn't completely understand what he signed and when the child was 4 months old, he began fighting for custody. The court ruled in his favor citing Indian Child Welfare Act and his (now) 2 YO daughter was returned to him.

So what do you think? Did the courts make the right decision in this case? Would the deision have been the same if he didn't have the protection of the Indian Child Welfare Act?

Joined: 12/10/05
Posts: 1681

I think that is wrong. They should not have removed that little girl from her adoptive family. The bio dad should have known what he was signing. How could he not have?

I think it would have had an entirely different outcome with the Indian Child Welfare Act. I don't know much (well, anything) about it, but from what the article says, it doesn't really sound to me like those are the types of circumstances it was meant to be applied to.

Starryblue702's picture
Joined: 04/06/11
Posts: 5454

I'm sorry, if they didn't know what they were signing then they shouldn't have signed it. I think this is a HORRIBLE AND TERRIBLE thing that was done that that baby girl should be given back to her adoptive parents... her REAL parents immediately. How dare they rip that baby girl away from her mother and father, because that's who they are to her, regardless of blood, nationality, or stupid laws. All of my siblings are adopted (four in total) and my parents would be DEVISTATED AND HEARTBROKEN if someone tried to come and take them away.

Joined: 04/12/03
Posts: 1686

"Starryblue702" wrote:

I'm sorry, if they didn't know what they were signing then they shouldn't have signed it. I think this is a HORRIBLE AND TERRIBLE thing that was done that that baby girl should be given back to her adoptive parents... her REAL parents immediately. How dare they rip that baby girl away from her mother and father, because that's who they are to her, regardless of blood, nationality, or stupid laws. All of my siblings are adopted (four in total) and my parents would be DEVISTATED AND HEARTBROKEN if someone tried to come and take them away.

Wow! I'm actually surprised the debate is starting in this direction. Just like adoptions from other countries involve different laws, so do adoptions involving members of a sovereign nation. In the case of adopting of a Native American child, the tribe must be notified. The whole point behind the ICWA was to prevent things like this.

About 5 years ago, I had 2 students who were Native Americans and adopted. Their adoption papers were in their cumes and it included legal forms proving proper notification to the tribe.

If this child were adopted under different circumstances (kidnapping, claiming the father is "unknown" when he really is - not even notifying the father), would you feel differently? If the adoption isn't legal and one of the parents is fighting it, why wouldn't the care-givers for the past 2 years have to return the child?

In cases of foster care, it happens frequently that the child is returned to the bio parents after years with foster parent.

GloriaInTX's picture
Joined: 07/29/08
Posts: 4116

I'm sorry but 4 months after they got the baby the adoptive parents knew the father wanted custody. It is not the father's fault that the paperwork took so long for him to get her back. My sister is trying to adopt her OWN granddaughter with the permission of her son and the babies mother. They started the process ONE WEEK after the baby was born, but because she was already in the foster care system they didn't get custody of her as even foster parents until she was 8 months old, and the adoption process is still not even close to final.

wlillie's picture
Joined: 09/17/07
Posts: 1796

"kris_w" wrote:

I think that is wrong. They should not have removed that little girl from her adoptive family. The bio dad should have known what he was signing. How could he not have?

I think it would have had an entirely different outcome with the Indian Child Welfare Act. I don't know much (well, anything) about it, but from what the article says, it doesn't really sound to me like those are the types of circumstances it was meant to be applied to.

This. I'm sorry, but I don't believe he didn't know what he was signing; I think he changed his mind. I can't imagine going through 4 months of falling in love with a child and then having the birth parents decide they want him back. It was an open adoption and I can't imagine this guy didn't really understand what was going on. Exactly what did he think he was signing?

If the child was kidnapped or one of the birth parents didn't consent to it, I'd feel differently. Both of the parents consented so this case doesn't really apply. Some random law that just happens to help in this case doesn't really change my feelings about adoption. You usually have around 6-9 months to think about it before the child is born and most states have a period afterwards. Not to mention that most adoptive parents end up paying a crap ton of money to ensure that they do everything possible to have the right to the child. I bet he signed a lot of paperwork before that child was handed to her parents.

He may be right legally, but morally he's wrong. The adoptive parents are wrong too though. I imagine their legal counsel warned them this was comign and they chose to ignore it when they could have been helping their child get used to her new surroundings and family. Pretending like this was going to go away was very selfish IMO though I know I'd probably do the exact same thing. I can also imagine that at 4 months the transition would have been easier on everyone, but I'm guessing they never thought to lose to some outdated law that they probably didn't even realize applied to their case.

There isn't a foster care issue here. Each state has their own rules and I'm guessing that that particular circumstance adds to each states timeline for adoption. If you are going from birth mother with the father's consent to adoptive parents it has to be a shorter time period than if there are a minimum of three sets of parents involved along with a whole crapton of extra paperwork.

eta- You could never tell me that after caring for a newborn for 4 months that that child wouldn't be yours forever in your heart; especially if you believed that she was legally yours to keep forever. It is 100% the Father's fault. Only fools sign things they dont' understand. It doesn't take but a smidgeon of intelligence to realize you may need legal counsel if you want the kid your baby mama is trying to give up for adoption.

Spacers's picture
Joined: 12/29/03
Posts: 4100

I don't really care whether he knew what he was signing or if he simply changed his mind. That's his right, as long as it's exercised with the time frame allowed by law. I believe most adoptions, including open adoptions, require a six-month waiting period before they are finalized, and he protested it at four months. That waiting period is in place because people can change their minds. I say shame on those adoptive parents for stringing this out for another year & a half fighting him on it!

wlillie's picture
Joined: 09/17/07
Posts: 1796

"Spacers" wrote:

I don't really care whether he knew what he was signing or if he simply changed his mind. That's his right, as long as it's exercised with the time frame allowed by law. I believe most adoptions, including open adoptions, require a six-month waiting period before they are finalized, and he protested it at four months. That waiting period is in place because people can change their minds. I say shame on those adoptive parents for stringing this out for another year & a half fighting him on it!

If that was the case, then he wouldn't have needed the tribal law. Right? He could have got the kid back at 4 months. Each state requires different things. On one of the 16 and pregnants (yes, I admit to watching it), the adoption was finalized within weeks. He wouldn't have made the news if he was just a birth father who changed his mind. His race and this law are the reason his situation warranted the media. Most adoptive parents wouldn't have gotten a call back.

Not really researching the laws, but it looks like (to me) that he legally lost when he signed the consent form. Otherwise he wouldn't have had to wait the 2 years.

http://adoptionlawsc.com/adoptive_parents.html

Can a birth parent change his/her mind after the consent is signed?

Once the adoption consent is signed it is binding and irrevocable, unless overturned by a court for fraud or duress.

How long does it take for the adoption to be finalized?

Finalization normally occurs within 4 to 6 months of placement, but can be delayed for various reasons.

Joined: 04/12/03
Posts: 1686

"wlillie" wrote:

If that was the case, then he wouldn't have needed the tribal law. Right? He could have got the kid back at 4 months. Each state requires different things. On one of the 16 and pregnants (yes, I admit to watching it), the adoption was finalized within weeks. He wouldn't have made the news if he was just a birth father who changed his mind. His race and this law are the reason his situation warranted the media. Most adoptive parents wouldn't have gotten a call back.

Actually, there have been quite a few articles and specials on the adoption laws of UT. I'm still following the Baby Emma Wyatt case and can't believe UT law trumps all others. I hope that one makes it to SCOTUS.

Not really researching the laws, but it looks like (to me) that he legally lost when he signed the consent form. Otherwise he wouldn't have had to wait the 2 years.

http://adoptionlawsc.com/adoptive_parents.html

Can a birth parent change his/her mind after the consent is signed?

Once the adoption consent is signed it is binding and irrevocable, unless overturned by a court for fraud or duress.

How long does it take for the adoption to be finalized?

Finalization normally occurs within 4 to 6 months of placement, but can be delayed for various reasons.

You are quoting SC adoption laws. In his case, tribal laws apply. Proper notification was not given.

wlillie's picture
Joined: 09/17/07
Posts: 1796

You asked
Would the deision have been the same if he didn't have the protection of the Indian Child Welfare Act?
I feel like it wouldn't have been for the fact that it's SC law.

One filing on behalf of the Capobiancos says Brown testified that he would give up his rights to Veronica to Maldonado so long as he "would not be responsible in any way for child support or anything else as far as the child's concerned."

Brown's attorney, Shannon Jones, said her client never made that statement. Jones said Brown thought that Maldonado planned to raise their daughter, and he thought he had signed away his rights to her.

"In his mind, he thought that would make her happy, and she would come back and marry him," Jones said. As soon as Brown learned of the adoption, she said, he fought it.
http://www.postandcourier.com/news/2012/jan/01/couple-forced-to-give-up-daughter/

So *according to his lawyer* a man that already has a child that he has no contact with wanted his ex to come back to him. Hoping signing the documents would bring her back to him, he signed away his rights to his second child. Then a few months into a year long Iraq tour, he started fighting the adoption (I'm guessing this is about the time the baby momma told him to f off). And because one of his ancestors is a race that is very protected (now) in our society, he gets the kid back despite the fact that he was fine with never seeing her again as long as the baby momma came back to him...hmmm. Sounds like fantastic father material to me.

It should always be about the child's best interest and this time the system failed her.

eta- This man was freaking 27 years old with free access to all the legal advice he wanted. It'd take a lot to get me to believe that he didn't use a loophole to get the kid back just to piss off his ex-fiance.

eta-just googled the emma case and it was obviously not just a changed mind either. People who change their minds within the legal period and get their kids back *Don't Make the News*, because it's not newsworthy. This is newsworthy because most people don't expect someone's race to trump the law. That's just not OK. Can you imagine the outrage that would happen if a white baby was placed in a black home and taken away two years later (or even four months later!) because the baby should have been placed in a white home? Or reverse the black and white. Or take one of those out and add Asian. Do a double whammy and use Hispanic and Asian. Wouldn't fly, would it? This law tore apart a family.

Starryblue702's picture
Joined: 04/06/11
Posts: 5454

"Spacers" wrote:

I don't really care whether he knew what he was signing or if he simply changed his mind. That's his right, as long as it's exercised with the time frame allowed by law. I believe most adoptions, including open adoptions, require a six-month waiting period before they are finalized, and he protested it at four months. That waiting period is in place because people can change their minds. I say shame on those adoptive parents for stringing this out for another year & a half fighting him on it!

That's not the case at all, at least it wasn't with the adoption of my brothers and sisters. I'll use my sister Mariah's adoption as an example. No papers could be signed by either party's until after the baby was born (obviously to give the birth parents ample time to change their mind about the adoption after the baby had been born)... two weeks after I believe it was. I remember we flew to Nashville from Ft. Lauderdale the day that the baby was born, and the baby came back to Florida with us after she was discharged from the hospital. After the two weeks the birth mother flew down with her dad (the bio father had signed away his rights and the OK to the adoption when we were still there in Nashville, as he wanted nothing to do with the baby from jump street and was no longer in a relationship with the mother) and it was then that everything was signed and done. There was no legal way that she could change her mind once those papers were signed. Now, maybe each state has their own laws in regards to these situations... but I know that wasn't the case with any of my siblings' adoptions (and I have two adopted brothers and two adopted sisters, I'm the only bio child).