Family Law

SCOTUS turns down Indian Child Welfare Act challenge brought by foster parents of Choctaw girl


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The U.S. Supreme Court declined on Monday to hear a foster family’s challenge to the adoption of their former foster daughter under the Indian Child Welfare Act.

Rusty and Summer Page of Santa Clarita, California, had asked the Supreme Court to reconsider a Los Angeles juvenile court’s ruling that there was no good cause to depart from the placement preferences in the Indian Child Welfare Act. The Pages had cared for the girl, known in court as Lexi, for four years and wanted to adopt her.

However, Lexi also had extended family members who sought to adopt her once it was clear that a reunion with her birth father was not possible. And Lexi is part Choctaw, a federally recognized American Indian tribe, which means the Indian Child Welfare Act’s placement preferences applied. ICWA gives a higher preference to family members seeking to adopt, as does California law. The Pages argued that changing the girl’s placement after four years would be difficult for her, given her rocky emotional adjustment when she first came to them, but the lower court ultimately disagreed.

In their petition, the Pages argued that the lower court misapplied the standard of review for good cause to depart from ICWA, but also that ICWA should not apply to children who had never been part of an American Indian family. Lexi’s only parent with Choctaw blood is her birth father, who never had custody of her. This “existing Indian family doctrine” is a subject of conflict in the lower courts, the Pages’ petition said, and warrants review. The Pages also argued that ICWA singles out Native children for disparate treatment based on race, in violation of the 14th Amendment’s equal protection clause.

The Supreme Court made no comment when it denied certiorari in the case Monday (PDF). The Pages issued a press release saying “To say we are heartbroken is an understatement… While this is certainly a crushing blow, it will not stop us from fighting for Lexi’s rights and the rights of other children unnecessarily hurt by the Indian Child Welfare Act.”

The Choctaw Nation issued a press release saying it was “pleased that this lengthy and unnecessary litigation has been brought to an end by the U.S. Supreme Court. Lexi can remain where she belongs, with extended family that will raise her and a sister in the Choctaw tradition. The attorneys who brought this case to the high court made clear from the beginning that their goal was not only to remove Lexi from her [extended] family, but to overturn the Indian Child Welfare Act.”

ICWA is the subject of other legal challenges, as the ABA Journal noted last October. The Goldwater Institute, a conservative legal organization, brought a proposed class-action lawsuit challenging ICWA directly in 2015. That case, Carter v. Washburn, is pending in Arizona federal court. A similar case, National Council for Adoption v. Jewell, is on appeal to the 4th U.S. Circuit Court of Appeals.

Lexi had a court-appointed attorney from the Children’s Law Center of California in the lower courts. Leslie Starr Heimov, executive director of the Center, told the ABA Journal last year that the Pages would have been unlikely to get custody even if ICWA had not applied to the case. “The law is very clear” in California that family gets priority, she said.

“The ICWA piece created a vehicle for all of the appeals,” she said. “But placement with family is always our priority.”

Related article:

ABA Journal: “Lawsuits dispute whether the Indian Child Welfare Act is in the best interests of children”


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