Baby
A has been adrift in foster care for years. Born in November 2009, the
child’s non-Indian mother had disappeared soon after its birth. The
father, a member of the Choctaw Nation of Oklahoma who is from the Los
Angeles area, took over raising the child and was described by friends
and family as, says one, “a great father, who really tried his best to
step up.”
Currently, an appellate court in Los Angeles is reviewing whether or
not Baby A should be placed with relatives under the “preferred
placement preferences” of both state and federal Indian Child Welfare
statutes, or remain with a foster couple who are claiming “de facto
parent” status, with the same rights as biological parents. The foster
couple, Summer and Russell Page, are the child’s third foster home since
it was placed into state custody.
According to friends, family and court watchers with knowledge of the
case, all of whom declined to be identified because of the privacy
rights of a minor child, although Baby A’s father was “rough around the
edges,” he was a loving—even doting—parent. A mechanic for many years,
he was arrested and sentenced to jail in 2010 for grand theft auto and
selling stolen auto parts when the child was approximately a year old.
Since he was a single father with no other family in the area (his
Choctaw mother had recently passed away), Baby A was swept into the
oceanic California foster care system.
“He was not fumbling or unsure of himself,” says a friend of the
family who declined to be identified because of fear of retaliation by
the state. “It was clear that he was experienced with babies and
children and knew how to change a diaper and even used a particular kind
of diaper because he explained that his baby had sensitive skin and was
prone to diaper rash. Some guy uninterested in being a father wouldn't
even bother with that. He was a good parent in spite of his [jail
sentence].”
After the father was released from jail on December 31, 2011, his
child remained in foster care while he worked to complete a “case
plan”—which is a series of checklists, forms and services mandated by
the court, including parenting classes, drug testing and counseling. At
one point, he even had unmonitored day visits over weekends.
And yet he never regained custody of Baby A. Eighteen months and
three foster homes later, the process began to sputter as he kept
getting his hopes up, only to get more additions to his case plan. Even
though he had cleaned up his act, gotten a job, completed parenting
classes and a multitude of other mandated programs, the father began to
bristle at the seemingly endless demands placed on him by the Department
of Social Services. Friends say he fell into despair, and said he
considered the court keeping his child away from him as a punishment
that did not fit his crime. As a non-violent offender he felt he had
already paid his penance, including jail time and lengthy reunification
efforts with his child.
But there were other obstacles. Some of the court-ordered classes,
for example, were offered only during his work day, and he could not
take off because he had just gotten hired. He did not like the
court-ordered therapist he was sent to, but was not given the
opportunity to find another one. He went for his regularly scheduled
drug testing, but missed an appointment, which was marked as a
“positive” test under California law. Nonetheless, Baby A’s father felt
he was doing the best he could, according to friends.
Subsequently, sources close to the father say that he became “tired
and fed up” with the endless checklists and requirements. In the
meantime, bickering with the latest round of foster parents erupted
after the couple had “fallen in love with Baby A” and set their sights
on getting permanent custody of the child. According to people familiar
with the case, the Pages began to dictate the terms and length of
father's visits and began documenting a list of complaints, including
that Baby A “smelled like cigarettes” when the child returned from
visits with its father; that he “seemed intimidating,” among others.
Depressed and frustrated, he told friends and family in the summer of
2013 that he was “tired” of fighting with the Pages and what he called
DSS’s “stalling.” So, in order to maintain some kind of relationship
with his child, the father of Baby A requested that it be placed with
his relatives in Utah under the “preferred placement” provision of the
Indian Child Welfare Act. With the consultation and consent of the
Choctaw Nation, which has 175,000 members and is the third largest tribe
in the U.S., an ICWA-compliant home was found with extended relatives
in Utah.
In December 2013, however, a Los Angeles judge issued a stay denying
Baby A’s placement with its ICWA-compliant relatives in Utah pending
further appeal, citing the foster parents’ contention that they were now
the child’s “de facto” parents and that they had become “attached” to
the child.
According to family friends, Baby A’s father and extended family were
devastated by the decision. Legal experts contend the stay ignored five
key facts in the case: 1) That he is the biological Indian parent of
Baby A; 2) his parental rights have not been terminated; 3) that he
still has standing in the case; 4) that he therefore has a say in
determining where his child should be placed; and 5) that the Choctaw
Nation of Oklahoma, who also has standing in this case, supports
father’s placement wishes.
But the concrete wall for the non-Indian foster parents and their
legal team, however, is the federal- and state-mandated placement
preferences under Section 1915(A) of the Indian Child Welfare Act, whose
specific requirements are as follows: “1. A member of the
child’s extended family; 2. A member of the child’s Indian tribe; 3.
Other Indian families; or 4. an institution for children approved by an
Indian tribe or operated by an Indian organization which has a program
suitable to meet the Indian child's needs.” Additionally, the act
specifies that if an Indian child is to be placed into adoptive or
foster care that “the Indian child's tribe shall establish a different
order of preference by resolution, the agency or court effecting the
placement shall follow such order so long as the placement is the least
restrictive setting appropriate to the particular needs of the child.”
In January 2014, Lori Alvino McGill signed on as counsel for the Pages. Alvino McGill worked on
Adoptive Couple v. Baby Girl last
year as a spokesperson for Veronica's mother, Christy Maldonado, who
had given Veronica up for adoption to Matt and Melanie Capobianco of
South Carolina before the girl’s birth in 2009. As Maldonado’s pro bono
counsel, Alvino McGill argued in the media and on social websites
against Veronica’s father Dusten Brown, using foul language and, in one
particularly heated late-night exchange on Facebook, referred to
Veronica’s biological father as a “sperm donor.”
RELATED:
The Fight for Baby Veronica, Part 5
Some Disturbing Facts About Baby Veronica's Birth Mother
Alvino McGill is collaborating on this case with Stephanie Grace, a
Harvard-educated attorney with Los Angeles-based Latham & Watkins,
who, as a third-year law student, came under fire in 2010 for an email
in which she asserted the following: “Everyone wants to take 100 white
infants and 100 African American infants and raise them in Disney utopia
and prove once and for all that we are all equal on every dimension, or
at least the really important ones like intelligence. I am merely not
100 percent convinced that this is the case.” The email was subsequently
forwarded to the Harvard Black Law Student Association.
Alvino McGill and Grace, along with four other attorneys, are seeking
to overturn ICWA in federal court on the basis that it is
“unconstitutional” for its race-based placement preferences. The team is
also seeking to terminate Baby A’s father’s parental rights, arguing
that the Pages should retain custody of the child.
RELATED:
Veronica's Birth Mother Drops Bid to Overturn ICWA in South Carolina
Baby A, however, is not the first child this foster couple has tried
to adopt out of foster care. The first child was eventually reunited
with its parents—but only after they fought in court with the Pages to
regain custody.
“These folks are attempting to use foster care as an ad hoc adoption
agency, [but it] is not a rubber-stamp to adopt the kids in their care.”
says J. Eric Reed, member of the Choctaw Nation of Oklahoma and a
former Special Assistant U.S. Attorney who specializes in federal Indian
law. “They knew when they signed up for duty that foster care is only
temporary custody. They are meant only to care for the child until the
child is reunified with the biological parent. But now they're trying to
switch horses in the middle of the race again and gain permanent
custody with the help of Baby Veronica's legal team. But let's be clear:
Dad's parental rights have not been terminated. Therefore, under the
law, his rights are still in play. They cannot go into court and pretend
otherwise. To do so is not only a direct violation of ICWA, but
California State ICWA statutes, as well.”
Reed, who is now a Dallas-based criminal defense attorney in private
practice, says that states across the country “consistently mandate
complicated, near impossible goals” in their so-called reunification
plans for Indian parents that create a more favorable climate for the
adoption of these children by foster parents.
Jumping Through Hoops, Hoops and More Hoops
Across the United States, Native parents have complained that they
face seemingly never-ending rounds of requirements and checklists that
thwart their attempts to regain custody of their children after they
disappear into state custody.
The problem has become so widespread that the Bureau of Indian
Affairs commenced hearings at an ICWA Summit in Rapid City, South
Dakota, last year in which dozens of Indian parents testified before a
panel of approximately two dozen government officials, including
Assistant Interior Secretary Kevin Washburn, that their parental and
human rights were routinely violated by the South Dakota Department of
Social Services, which forced them to “jump through hoop after hoop”
which did not result in being reunified with their children.
Since those hearings in Rapid City last year, Secretary Washburn, who
is a member of the Chickasaw Nation of Oklahoma, has never publicly
commented on the case, which is under current review by the 8th Circuit
Court of Appeals. Additionally, he has declined numerous requests from
Indian Country Today Media Network to speak on the record regarding the
nationwide issues with the Indian Child Welfare Act and the friction it
creates between the tribes and the states under his purview.
At the Rapid City summit, Indian parents complained that each
completed checklist was met only with yet another checklist and more
court-ordered programs and classes, while non-Indian foster parents and
facilities across the state were being paid to care for over 750 Indian
children who were swept into foster care every year. Additionally, many
Indian grandparents, great-grandparents, aunts, uncles, et al, testified
that even though they had become certified as foster homes, they were
denied the opportunity by the Department of Social Services to care for
their own relatives, in direct violation of the Indian Child Welfare
Act.
In response, the Oglala and Rosebud Sioux tribes and three Indian
parents in South Dakota filed a class action suit in March 2013 against
the state in federal court [
Oglala v. Van Hunnik]. For the
first time in U.S. History, the two tribes have sued the state under the
doctrine of parens patriae—which means on behalf of all current and
future tribal members. Currently, the legal team for the plaintiffs are
awaiting a judge’s opinion in their suit, which asks for immediate
declaratory and injunctive relief from the daily practices, procedures
and routines in family courts that ignore ICWA.
The plaintiffs charge that for years, Native children have been taken
on virtually a daily basis by social services and placed into state
custody by judges and social workers who completely ignored the
provisions of both the Indian Child Welfare Act and even South Dakota
state law, according to the suit.
RELATED:
Swept Away: South Dakota's Native Children Denied Due Process in Custody Cases
Swept Away, Part 2: Suing South Dakota to Protect Native Children
“[The social worker] said I couldn't see my kids because I didn’t
fill out a form properly,” according to one parent in South Dakota who
declined to be identified because of her fear of retaliation by the
social service workers in that state. “I said I had filled it out three
times already, how many more did she need? So she wrote down in her
report that, ‘Mother appears hostile.' Well, what did she expect? A
cupcake? I want to see my kids. I'm done with the forms. Let me see my
kids!”
“It's a classic legal strategy,” says Alicia Nevaquaya, an Eagletown,
Oklahoma-based lawyer and member of the Choctaw Nation of Oklahoma.
“It's known as 'Drown them in paperwork to the point where you break
them.' And it's understandable that these parents are frustrated,
because it is, in fact, a 'hostile takeover' of your kids. They're
actively taking them away. But the facts in [Baby A] are clear that this
Native father was broken. They broke him into giving up.”
“I can't do it anymore,” he tearfully told a friend in the summer of
2013, around the same time that the Supreme Court handed down its ruling
on
Adoptive Couple v. Baby Girl. For 18 long months since his
release from jail, dad had fought to regain custody and was only given
more to do, which only gave the Pages more time to establish their “de
facto” parent status. After losing his mother, being left with an infant
to raise on his own, the arrest, the jail time, the separation from his
child and his quest to regain custody had taken its toll. He
reluctantly ceased reunification efforts, which were officially
terminated in June 2013. But—his parental rights and standing in this
case, however, remain in tact.
His only request was that his child be at least be placed with
ICWA-compliant relatives in Utah so that they could maintain some kind
of relationship. In early December 2013, Superior Court Judge Amy
Pellman ordered a change of custody ruling that under the law, the child
should be placed with the father’s ICWA-compliant relatives in Utah.
On December 12, 2013, the Pages filed a motion with the court to stay
the child’s removal to relatives to Utah, which was immediately
granted. From that point forward, attorneys for the foster couple began
referring to them as the “de facto” parents of Baby A and that they
therefore had the same rights as the child’s biological parents.
In spite of the legal wranglings by the foster couple and their new
legal team, two obstinate facts remain: Father’s rights in this case
have not been terminated; he still has standing under state and federal
law.
Says Reed, “So what if Dad was in jail? Does that entitle the state
to take his child away forever? No it does not. Prison inmates have more
parental rights than Indian parents. Unless there was clear and present
danger to this child or evidence of abuse—and I do not see that there
was—then they should have returned the kid to him by now. But they've
stacked the deck against him, just like they did with Dusten Brown.
“Even in prison, inmates still get access to their children and they
still get visitation, because maintaining the relationship with the
children is a central part of the rehabilitation process of the criminal
justice system in the United States. They have parenting classes for
both men and women in prison. So, whether the legal team wants to
confront reality or not, Dad [still has rights] under state and federal
law and I think they're putting the cart ahead of the horse. They have
yet to initiate a termination of parental rights hearing, so that has to
happen first. That's the law. Now the question arises: What active
efforts has the state made to help him in this unique situation to
reunify with this child? What could [DSS] have done to promote and
protect his parental rights with this Indian child? Very little, it
would appear.”
The Ugly Legacy of Termination and Relocation
How Baby A's dad wound up in California is also significant in the
history of Indian people in the United States. His Choctaw mother's
family was “relocated” to the Los Angeles area after the Indian
Relocation Act (Public Law 959, 1956), in which Indian families were
“invited” to move from their homelands and reservations to urban areas
in a program designed to “integrate and assimilate” Indian people into
mainstream culture. It was part of the termination policies of that era,
in which tribal rolls were closed and their assets liquidated.
Relocation is considered a failure by many Native historians and tribal
members, not only because of its further destruction of tribes, but also
its creation of the disconnect and widespread diaspora of Indian people
across the U.S. that exists to this day.
As a direct result of these policies, Los Angeles has the second
largest urban Indian population in the United States after New York
City. According to the U.S. Census, most of the tribal members in the
greater Los Angeles area are from out-of-state tribal communities.
Baby A's father fell into the familiar traps that have plagued urban
Indians since Relocation began. Isolated and depressed, he was already
under stress with the departure of the child's mother, caring for a
newborn and dealing with the grief of his mother's passing. Then came
his arrest, his time in jail, the removal of his child and the
subsequent Kafkaesque process of trying to regain custody. “He tried his
very best, he did,” says a friend of dad’s family. “But it wasn’t good
enough. He was broken and it seems like that's what the intention was.
To break him into giving up.”
All parties in the case have declined comment because
CFS v. J.E. involves
a child. Nonetheless, last Tuesday, a number of courtwatchers, lawyers
(who do not represent any of the parties) and ICWA experts attended the
appellate hearing with the encouragement of the California Indian Legal
Services, who had posted a notice of the hearing on their website.
In her argument before the three-judge appellate panel, Alvino McGill
argued yet again that ICWA's preferred placement preferences are
“unconstitutional,” citing an old case involving Hawaiian Crown lands,
which baffled many onlookers in the courtroom. Additionally, Alvino
McGill argued that the lower court's ruling that “no good cause” existed
to allow the child to remain with the foster couple was “erroneous,” in
spite of the fact that the child has ICWA-compliant relatives who are
willing to take the child into their home.
“The case she brought before the panel actually works in ICWA's
favor, because the Supreme Court ultimately ruled [in the Hawaiian Crown
lands case] that tribes have a unique, political relationship with the
U.S. Government that the Native Hawaiians do not have,” says a lawyer
who attended the hearing. “[Baby A’s father] is a tribal member of the
Choctaw Nation of Oklahoma, which has a long-established political
relationship with the U.S. Government and the courts have consistently
upheld that relationship in numerous decisions, which is what the Indian
Child Welfare Act was intended to support: The continued existence of
the tribes. So she is therefore incorrect in her interpretation of both
[the Native Hawaiian] case and in her interpretation of
the constitutionality of ICWA.”
In the meantime, as the case of
Children and Family Services v. J.E. et al.,
unfolds, Summer and Russell Page are seeking to exchange their status
as foster parents to adopting a Choctaw child who has living relatives
available and which would allow dad to maintain contact.
The California Second District Court of Appeals, under presiding
Justice Paul Turner, is expected to render its decision within the next
several months.
Please visit Indian Country Today Media Network for continuing coverage of this and other ICWA cases.
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