Family Law

Foster family vows appeal after losing custody of girl, 6, in fight over Indian child welfare law

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A foster family is appealing to the California Supreme Court after losing custody of a 6-year-old girl in a battle over placement preferences required by the Indian Child Welfare Act.

The girl known as Lexi was removed from the home of Rusty and Summer Page on Monday after a Friday decision by a California appeals court, report NBC News, CBS News, the Los Angeles Times and the San Jose Mercury News.

Press reports said Lexi cried and clutched a teddy bear as her foster father Rusty Page carried her out of her home near Los Angeles. She has lived with the family since age 2. Page told CBS Los Angeles his foster daughter had told him, “Don’t let them take me. I’m scared. I’m scared. Don’t let me go.”

Lexi will live with a Utah couple who are related by marriage to her birth father but are not Native American.

Lexi’s sister is also living with the Utah couple, according to the lawyer representing Lexi, Leslie Heimov of the Children’s Law Center of California, the Los Angeles Daily News reports. Lexi has visited the Utah family over the years and “has a loving relationship with them,” Heimov said.

Lexi is 1/64th Choctaw Native American on her birth father’s side, and courts have rejected her foster family’s efforts to keep custody of the child. Courts have decided her placement under the federal Indian Child Welfare Act, which is designed to preserve Native American families.

Lexi’s birth parents had a history of substance abuse, according to this August 2014 opinion. The decision found a dependency court had applied the wrong standard in considering the foster parents’ claim and remanded the case for a determination whether good cause existed to depart from placement preferences in the Indian Child Welfare Act. The appellate opinion did not rule on the foster parents’ constitutional claims, finding that they lacked standing to challenge the federal law.

The appeals court opinion said the girl had bonded and thrived with her foster parents, who had been aware that her placement was subject to the Indian Child Welfare Act.

On remand, the lower court again ruled against the foster parents, and the California appeals court rejected the foster parents’ petition for a writ of supersedeas.

The lawyer for the foster parents, Lori Alvino McGill, told the Los Angeles Daily Journal that the foster parents would continue to pursue the appeal “and we will press on to the U.S. Supreme Court if that becomes necessary.”

The Goldwater Institute, meanwhile, has filed a class action lawsuit (PDF) on behalf of prospective adoptive parents in Arizona that challenges the constitutionality of the Indian Child Welfare Act, the Los Angeles Daily News reports. The group contends the law creates a separate and substandard set of rules for Native American children. The Goldwater Institute looks at the law’s legal history in this post.

The suit asserts that children with American Indian ancestry “are still living in the era of Plessy v. Ferguson. Alone among American children, their adoption and foster care placements are determined not in accord with their best interests but by their ethnicity, as a result of a well-intentioned but profoundly flawed and unconstitutional federal law, the Indian Child Welfare Act.”

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