This is a re-occurring and incredibly frustrating ICWA fact pattern–if the ICWA compliant placement is out of state, or far away from the parents, and the goal is reunification, it makes sense for the tribe and state to allow for a non-compliant ICWA placement near the parents. What happens, however, when reunification fails? As in this case, a court is often unwilling to remove the child from the home she has been in for anywhere from one to three years. Honest, actual, concurrent permanency planning could help with this, but while that is a best practice, it does not seem to be happening with any regularity at the state.
Concluding that the ICWA’s adoptive placement preferences do apply to this case, we then review the trial court’s order finding that the P.s failed to produce clear and convincing evidence of good cause to depart from those placement preferences. We determine that the court applied the correct burden of proof by requiring the P.s to prove by clear and convincing evidence that there was good cause to deviate from section 1915’s placement preferences. However, the court erroneously required the P.s to prove a certainty that Alexandria would suffer harm if moved, and failed to consider Alexandria’s best interests or her bond with the P.s in determining good cause.As also often happens, the parties start arguing about the very constitutionality of ICWA, making this case a “not as bad as it could have been” case–the court didn’t find ICWA is unconstitutional, nor does Adoptive Couple apply (as the de facto parents argued) to this fact pattern. And yet, the trial court decision placing the child with her extended family is still overturned based on the child’s best interest standard. Getting courts to acknowledge that the best interests of a child ought to include the child’s whole life, not just the one transition in front of the court at that moment, is both vital and seemingly impossible.
We recognize that a final decision regarding Alexandria’s adoptive placement will be further delayed as a result of our determination of the merits of this appeal. That delay is warranted by the need to insure that the correct legal standard is utilized in deciding whether good cause has been shown that it is in the best interest of Alexandria to depart from the ICWA’s placement preferences.
For the (depressing) record, here is Evelyn Blanchard writing the same thing in 1977 in The Destruction of American Indian Families, ed. Steven Unger (Association of American Indian Affairs 1977).TODAY: NICWA’s statement:
We are disturbed by this weekend’s flurry of negative media attention regarding the attempted reunification of a child with her family in Utah. In this contentious custody case, there have never been any surprises as far as what the law required. The foster family was well aware years ago this girl is an Indian child, whose case is subject to the requirements of the Indian Child Welfare Act (ICWA), and who has relatives who were willing to raise her if reunification with her father was unsuccessful.In fact, the only surprising turn of events is the lengths the foster family has gone to, under the advice of an attorney with a long history of trying to overturn ICWA, to drag out litigation as long as possible, creating instability for the child in question. That the foster family now argues bonding and attachment should supersede all else despite testimony of those closest to her case, seems like a long-term, calculated legal strategy based on the simple fact that the law was always clear, they understood it, but just chose not to abide by it.The purpose of foster care is to provide temporary care for children while families get services and support to reunite with their children, not to fast-track the creation of new families when there is extended family available who want to care for the child. The temporary nature of these relationships is also the reason we view those who serve as foster parents as selfless and nurturing individuals. Reunification and placement with extended family whenever possible is best practice for all children, not just Native American children.We call on the media to provide balanced reporting and to ask vital questions regarding these facts before inflaming the public and subjecting the privacy and future well-being of a little girl to national debate.
Previous coverage of the appeal of this case is here.
As always, we remain concerned with the lack of privacy for a child who doesn’t get to make decisions about her identity being put forward into the press. In perhaps no surprise to anyone, this case involves repeat players from the Adoptive Couple v. Baby Girl case.