Last Friday, the Second District Court of Appeals in California unanimously ruled against a non-Native foster couple seeking to adopt the Choctaw child in their care. The three-judge panel rejected their argument that they have the same constitutional rights and standing as biological parents, and ruled that the application of the “existing Indian family exception” did not apply in the case of Children and Family Services v. J.E., et al.
Foster parents Summer and Russell Page sought permanent custody of a Choctaw child, known as “Baby A,” after the birth father gave up his reunification efforts and asked that the child be placed with his relatives in Utah under the “preferred placement” section of the Indian Child Welfare Act. The court struck down all constitutional claims by the Pages, as well as their argument that the “existing Indian family” exception, which requires significant cultural and familial ties with the tribe in determining custody placements, does not apply.
The court agreed with the foster parents, however, that the lower court erroneously applied a standard of “certainty” to show Baby A would be harmed by removing her from their care. In reversing and remanding the lower court’s placement order, which would have removed the child to ICWA-compliant relatives in Utah, the case will now go back to trial in California for further review in which a standard of “clear and convincing” evidence and other factors will be considered, including bonding and best interests.
In ordering a new trial, however, the court also detailed California’s long legal and legislative history with ICWA and affirmed unequivocally that the burden of proof that there is a “clear and convincing” reason to stray from ICWA will fall on the foster parents.
Writing for the panel, Judge Sandy R. Kriegler confirmed that the child meets the federal definition of an Indian child, while rejecting the plaintiffs’ contention that the Choctaw Nation of Oklahoma had “waived” its consent to placement preferences by permitting the temporary placement with the Pages.
“This decision is doing two things at once,” says Barbara Atwood, the Mary Anne Richey Professor of Law Emerita and Director of the Family and Juvenile Law Certificate Program at the University of Arizona James E. Rogers College of Law. “It rejects the ‘Existing Indian Family’ exception (EIF) argument, upon which the California courts have been split. This decision provides an important precedent clear path because this exception came out of a Kansas case and it does not appear anywhere in ICWA. So the national trend is leaning toward rejecting EIF. Secondly, it also rejects the constitutional issues raised by the foster couple, at least in dicta, which is huge.”
Baby A was born in November 2009, and has been in state custody for years; the Pages are the child’s third foster home. The child’s non-Indian biological mother, who has a history of drug use and had lost custody of six other children, disappeared soon after giving birth to Baby A, according to court documents. Baby A’s father, who also has a history of drug use and a criminal record, took sole responsibility for raising the newborn, but he was arrested in 2010 for grand theft auto and selling stolen car parts. After he was released from jail on December 31, 2011, he embarked on an unsuccessful, 18-month quest to reunify with his child.
In July 2012, after a year and a half of trying to regain custody of Baby A, he became depressed, anxious and frustrated over what he considered the ongoing and unnecessary “stalling” by the State of California. After reluctantly terminating his reunification plan, his only request was that his child be placed with ICWA-compliant relatives in Utah so that he could maintain some kind of relationship with the child, although his parental rights and standing in the case remain in tact. By that time, the Choctaw Nation of Oklahoma had intervened to support the father’s placement choice, as had both the child’s attorney and its guardian ad litem, both of whom were appointed by the court to protect the child’s best interests.
After the father gave up trying to reunify with his child, the Pages embarked on a quest to claim permanent custody of Baby A, in spite of prior and repeated warnings by the Department of Social Services that Baby A was an Indian child whose placement with them was only temporary – until the child could be reunified with her father, or be placed with ICWA-compliant relatives or tribal members. But the couple had “fallen in love” with the child and retained a legal team to contest a lower court ruling that the child should be removed from their care because of their contention that they were now “de facto” parents with the same constitutional rights as biological parents.
Additionally, the Pages argued that when the Choctaw Nation consented to Baby A’s temporary custody with them it “waived” the application of the placement section of the law, which specifies the following preferences, in order of priority: A member of the child’s extended family; other members of the Indian child’s tribe; or other Indian families. The tribe’s attorney argued at the appellate hearing that the tribe had never waived its rights and placement preferences under ICWA, and in fact, had intervened early on and had also consented to and supported the father’s placement wishes.
Referring to California Senate Bill 678, the appellate judges were explicit in regards to the importance of upholding the Indian Child Welfare Act. “Both federal and state law expressly provide that if a state or federal law provides a higher level of protection to the rights to the parent or Indian guardian of an Indian child, the higher standard shall prevail,” they wrote.
The decision rejected the constitutional challenges raised by the Page legal team, headed by Lori Alvino McGill, who also represented the biological mother Christy Maldonado as a pro bono spokesperson in Adoptive Couple v. Baby Girl last year, in which Cherokee tribal member Dusten Brown lost custody of his biological daughter, Veronica, to Matt and Melanie Capobianco because the Supreme Court had ruled that he did not have “continued custody” of the girl prior to her placement with the adoptive couple. Alvino McGill, who is a partner at Quinn, Emanuel, Urquhart and Sullivan in their Washington, D.C., office, appeared on behalf of the Pages as pro hac vice counsel in California.
“Here, the [Pages] acknowledge [the child’s] placement with them was not an adoptive placement and they were consistently made aware that the ICWA’s placement preferences were applicable,” the appeals court wrote. “They knew at all times the placement was intended to be temporary to facilitate reunification and [Baby A] would either reunify with [the] Father or be placed with another family under the ICWA’s placement preferences.”
Hence, they found, “Even if we were to conclude the [Pages] had standing to challenge the ICWA’s constitutionality, we find their arguments unpersuasive.”
The judges also made it clear that the decision in Adoptive Couple had no impact on this case: “We reject the [Pages’] attempt to apply the existing Indian family doctrine to this case, and to expand the limited holding of the United States Supreme Court in Adoptive Couple well beyond its intended scope. We also reject the argument that Congress acted outside of its enumerated powers in enacting the ICWA.”
“The judges said, ‘You don’t have constitutional standing and even if you did, we would reject it,’” said Atwood. “And they were pretty specific in their rejection of the application of Adoptive Couple in this case. It doesn’t apply.”
But legal experts are divided over what some consider a “controversial” decision to reverse and remand the previous placement order by the lower court. On the one hand, says a Washington lawyer who declined to be identified because of the sensitivity of a case involving a minor, although the father and the tribe won on the constitutional and standing issues, “they are back in front of the trial court to re-assess whether good cause exists under a standard more favorable to the non-Indian foster parents.”
J. Eric Reed, a Dallas-based criminal defense attorney who is also a member of the Choctaw Nation, is cautiously optimistic about the court’s ruling. “We are hoping that by referring the case back to the lower court that the court will continue to uphold federal Indian law by placing the child with relatives who will love and support the kid and help maintain contact with the father and the tribe. We know that the Indian Child Welfare Act works and that it’s in place for a reason: Because the best interest of our children is tied to their continued contact with their families and communities.”
Atwood, however, says that the standard of “clear and convincing” evidence still falls heavily upon the foster parents to prove that there is good cause to deviate from the placement preferences specified in section 1915 of the act. “Overall, this bolsters ICWA and provides a standard for clear and convincing evidence to deviate from the placement preferences outlined in ICWA. It rejected the foster parents’ constitutional arguments, it rejected the EIF exception, and it announced a very tough burden of proof for anyone trying to establish good cause. Of course, it also held that certainty of harm to the child is not required, that evidence of bonding with current caregivers is admissible, and that a court should consider the child’s best interests. This does not mean that the foster parents will prevail on remand, since clear and convincing is a very high standard, but it does open up the evidence.”
The appellate judges acknowledged that while going back to trial would prolong Baby A’s time with the Pages, which may weigh more heavily in their favor since the child will have even more time to bond with them, it was still necessary to include additional factors, including bonding and attachment, and best interests in regards to the child’s placement. “We recognize that a final decision regarding [the child’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,” they wrote.
Nonetheless, ICWA advocates across the country lauded the decision that denies that foster parents have the same rights as biological parents and that weighing the best interests of the child would also have to consider the benefits of being raised by family, not to mention the likelihood of having ongoing contact with her father, with whom the child had a relationship prior to the termination of his reunification plan.
“The de facto parent status of the foster parents did not seem to sway the court at all,” says Atwood. “They are not ‘parents’ under ICWA and must still contend with ICWA’s placement preferences.”