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.”
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.
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.
“[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.