Thursday, December 31, 2009

Applying the Goldman standard to foster care


I suspect most people are familiar by now with the story of nine-year-old Sean Goldman, the boy from New Jersey abducted by his Brazilian mother. She claimed to be taking him to Brazil for a visit, but once she got there she filed for divorce from her American husband, David Goldman. Later, she married a powerful, well-connected lawyer. Even after the mother died, her relatives refused to return the child to his father. The court battle dragged on for five years, finally ending with the boy's return to his father earlier this month. During most of that time, David Goldman could not even visit his son.

It was plainly an abduction, in violation of international law. Goldman garnered enormous public sympathy, and rightly so. T he Facebook page set up by Goldman's friends has 61,000 members.

His Congressman lobbied for him and Secretary of State Hillary Clinton intervened on his behalf.

But what was truly remarkable is what wasn't said. I saw nobody in American media play the bonding card. Nobody said: "Well, yes, the mother was wrong to abduct the child, but, after all, this is the only family he's known for all these years – they've bonded. What about the best interests of the child?"

Sean's Brazilian relatives said it, of course, (and they tried to spin the case as a "custody dispute" not an abduction). But this time it didn't play in America. Partly that's just a matter of American nationalism. That can be seen in how the entire legislature of the State of Nebraska behaved in a strikingly similar case in which the obstructionists are Americans, and the parent who lost the child is Canadian.

But mostly, David Goldman had the support of public opinion, the support he - and, I would argue, his son - deserved, because you can't play the bonding card against a white, middle class parent. In America, this argument is reserved for cases in which the parent who lost custody is a birth parent who is poor and/or minority and the parent who has the child is affluent and/or white.

The best-known such cases involve private disputes between birth parents and adoptive parents, such as the notorious "Baby Jessica" case in Iowa and Michigan nearly 20 years ago.

The baby's real name was Anna. Her birth mother's signature wound up on a surrender agreement less than two days after the birth – that's illegal in Iowa; there's supposed to be a three-day waiting period.

Just five days after Anna was placed, her mother changed her mind and asked for her back. The father came forward, took responsibility, and married the mother. Had the adoptive parents really been thinking of the "best interests of the child" they could simply have returned her then and there. Instead they changed her name and went to court. They lost time and time again. But each time they would find a way to stall; a new motion, a new appeal. And then, after two-and-a-half years, when all the appeals finally ran out, they turned around and played the bonding card: You can't take this child from us, they said. We're the only parents she's ever known!

Though they lost in court, the media almost universally sided with the adoptive parents. So did many co-called child advocates. In a similar case involving foster parents in Arkansas, who wanted to keep a child who had been with them for two-and-a-half years (apparently over the objection of both the birth parents and the child welfare agency), the foster parents were represented by a young "children's rights" attorney named Hillary Clinton. She won.

As the Arkansas case illustrates, this doesn't happen only in private disputes. Sometimes it's not only the child protective services agency that takes the child, but also the CPS agency that, years later, is either proven wrong or may even admit it was wrong, but argues that: "It's too late now, the child has 'bonded' with the foster parents."

And what's wrong with that? Why shouldn't we stand up for "children's rights" and let all children stay wherever they are said to have 'bonded', no matter how they got there?

For starters, knowing what really is in any given child's best interests is a lot more difficult than those who throw around the phrase so cavalierly would have us believe. The last time the media checked up on Anna, for example, she was 12, and doing just fine with her birth parents.

But also, the vision of "children's rights" advocated by backers of Baby Jessica's adoptive parents – and by Hillary Clinton in her Arkansas case - is way too narrow. It would only further encourage both child welfare agencies, and childless couples with good lawyers, to turn child welfare systems into the ultimate middle-class entitlement: Step right up and take a poor person's child for your very own. They'd know that if all else failed, they could just stall long enough to play the bonding card. And it ignores the right of all children to live in a just society – where they will not grow up to fall prey to anyone who is rich enough and powerful enough and wants their child.

Indeed, by the logic of those who play the bonding card in these situations, if someone kidnaps a child at birth, flees to Mexico, takes good care of the child and then comes back two years later, the kidnapper should be allowed to keep the child.

That's why what might best be called the Goldman standard, also known as the rule of law, should be the standard whenever a child welfare agency says: "Well, yes, we were wrong, but now the child has 'bonded' with the substitute parents we always liked better in the first place." And that's why I hope Americans remember how they responded to the Goldman case, the next time a "Baby Jessica"-type case hits the headlines.