On Friday, the California Second District Court of Appeals ruled unanimously that a 6-year-old Choctaw girl known as “Lexi,” will be staying in Utah with her family. In the scathing 38-page decision, the three-judge panel ruled against foster parents Summer and Russell Page, citing their “self interest,” their pattern of interference with and resistance to Lexi’s visits with her extended family and their inability to facilitate an ongoing relationship with her siblings as part of a constellation of “substantial evidence” that there was no good cause to depart from the placement preferences enumerated under the Indian Child Welfare Act.
Last March, the child was removed from the Page’s home in Santa Clarita, California, by the Los Angeles County Department of Children and Family Services after the couple initially refused to hand the girl over to social workers in defiance of the court ordering her to be placed with family in Utah, which includes two biological sisters. The transfer, which had been carefully planned for months and was intended to be a smooth transition, deteriorated into chaos after protesters and media descended on the house in an effort to prevent the transfer.
The case began in 2010 when Lexi’s father went to jail for selling stolen auto parts, her mother having disappeared shortly after she was born, according to court documents. After bouncing around several foster homes, the girl was placed with the Pages while her father worked to complete a “reunification plan.” The Pages, who had been warned numerous times by the state and the courts that Lexi would eventually either be reunified with her father or be sent to live with relatives, began indicating their desire to permanently adopt the girl. Subsequently, the relationship between the Pages and Lexi’s father became strained because he alleged that they were “interfering” with his visitations and attempting to dictate the terms and length of his visits, he told ICTMN.
According to court documents, the father, who has a criminal record and history of drug use, had become despondent and made the decision to cease reunification after 18 months of failed efforts to regain custody of Lexi. He requested that Lexi be placed with relatives in Utah, a move that was supported by the Choctaw Nation of Oklahoma, the child’s attorney and the child’s guardian ad litem.
The Pages then commenced a five-year legal battle to retain custody of Lexi with a legal team headed by Lori Alvino McGill, a Washington, D.C.-based attorney who represented birth mother Christy Maldonado as a pro bono spokesperson during Adoptive Couple v. Baby Girl, the 2013 case in which a Cherokee Nation tribal member lost custody of his daughter after a legal battle that went to the U.S. Supreme Court.
McGill, who represented the Pages as a pro hac vice counsel in California, has tried unsuccessfully to overturn ICWA in various jurisdictions across the country, including Virginia and South Carolina.
Addressing the primary legal question at hand in this case?whether the Pages could show “good cause” to depart from the placement preferences extant in ICWA?Justice Sandy R. Kriegler wrote for the majority that the determination should not “devolve into a standardless, free-ranging best interests inquiry,” and noted that Lexi’s lengthy stay with her foster parents was borne solely out of ongoing litigation.
“The United States Supreme Court has cautioned that courts should not ‘reward those who obtain custody, whether lawfully or otherwise, and maintain it during any ensuing (and protracted) litigation,’” the panel concluded.
“A holding that the facts before us constituted good cause as a matter of law would circumvent the policies favoring relatives and siblings, and it would incentivize families who knowingly accept temporary foster placements to delay an Indian child’s ultimate adoptive placement in the hope that as time passes, the family will reach a ‘safe zone’ where harm to a child from disrupting his or her primary attachment is presumed as a matter of law. It is unwise and unnecessary to stretch the bounds of California law in that manner.”
Point by painstaking point, the California Second District Court of Appeals dismantled the Page’s legal arguments, while at the same time taking them to task for what the court characterized as their unwillingness and inability to provide Lexi a continuing relationship with her two biological sisters; their continued resistance in allowing Lexi to develop a relationship with her Utah relatives; as well as their insistence that visitation should be monitored by them and that therapy meant for Lexi alone should include the entire Page family.
Further, the court noted that not only had the Pages sought a court order to prevent the Utah relatives from taking Lexi to Disneyland, but that Summer Page had also routinely “limited or interfered” with individual therapy sessions for Lexi.
In regards to Lexi’s cultural ties, the justices also pointed out that the Pages were reluctant to engage in any of the suggested activities and had made only half-hearted attempts at incorporating Native American heritage into their lives?Summer Page having testified that a dreamcatcher made by Lexi had “ended up in the trash.”
The Pages did point out that they had joined the Autry Museum and had painted a wall in their kitchen “Navajo Blue.”
In the end, however, the panel rejected in its totality the Page’s argument that they represent Lexi’s best interest.
“The Pages also do not—and in our view cannot—provide an adequate response to an issue raised most effectively by minor’s appellate counsel. Even though they appear before the court by virtue of their status as de facto parents, the Page’s efforts to show good cause are motivated by their own interests,” wrote Kriegler. “Minor’s counsel, not the Pages, has a legal and ethical obligation to represent Alexandria’s interests. The Pages lack the right to assert Alexandria’s interests because Alexandria has her own counsel, who represents her interests and also acts as her guardian ad litem.”
After the decision, Lexi’s Utah family issued the following statement:
“We respect the unanimous decision by the court of appeal justices. All who have been appointed to seek Lexi’s best interests—her court-appointed attorneys, guardian ad litem, social worker, the Department of Children and Family Services, and the dependency court judges—have unanimously echoed that Lexi should be raised by her family.
“As Lexi’s relatives, who have been seeking to adopt Lexi for over five years, we are grateful that both state and federal law have placement preferences for family. More than simply sharing a familial relation with us, Lexi has been a real part of our family since the moment her grandmother—our aunt—expressed her desire that we bring Lexi into our home. The determination we felt since then, when Lexi had just been placed in her first foster home, has provided vital strength for our family as we have waited for the courts to untangle the details.
“We hope the appellate court’s ruling brings closure and finality to everyone involved, and Lexi is at last allowed to live a peaceful childhood in our home with her sister.”
The Choctaw Nation of Oklahoma, which has been an active party in the case from the beginning, supported the placement with the Utah relatives.
“The Choctaw Nation is pleased that the California District Court of Appeals has upheld the lower court’s decision to place Lexi with her extended family and sisters in Utah,” the tribe said in a statement released Friday night. “This has been the tribe’s objective under the Indian Child Welfare Act for more than three years. However, the trial court’s prior orders were repeatedly appealed and delayed by the foster family who knew the expected outcome under the law.
“We hope this puts an end to this needless litigation so Lexi can get on with her life.”