Indian Law

State appeals court upholds girl's placement with relatives in high-profile Indian adoption case

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A 6-year-old girl at the heart of a high-profile adoption case was correctly placed with extended family rather than her longtime foster family, a California appeals court ruled Friday.

The Los Angeles Superior Court correctly determined that there was no good cause to depart from the placement preferences of the Indian Child Welfare Act in the case of Alexandria P., the Second District Court of Appeal ruled (PDF).

The case made headlines in March when foster parents for the girl—known outside of court documents as Lexi—staged a protest of the order to transfer custody. Several hundred friends, family and neighbors camped outside the family’s suburban Los Angeles home, delaying the custody transfer for a day.

Lexi was removed from her parents for neglect at 17 months. Because Lexi’s father is a member of the Choctaw Nation of Oklahoma, the Indian Child Welfare Act applied to her case. (She is now a member, too.) She came at the age of 2 to the foster family that wants to adopt her. Though Lexi had relatives in Utah who were interested in adoption, the county kept her with the foster family so she could be near her birth father, who was working toward family reunification.

With that foster family, Lexi made substantial progress toward overcoming the emotional problems that her early traumas had caused. She also had frequent contact with the Utah family in preparation for possible placement there. When reunification with Lexi’s father failed, the foster family asked to adopt her, saying they felt it was in her best interests to remain in a stable home with a family that had grown to love her. Los Angeles County child welfare authorities recommended that Lexi be placed with the Utah family, the preferred placement under California law and ICWA.

This launched a series of court cases. Twice, a dependency court found no good cause to depart from ICWA’s placement preferences. But on appeal, the Second District twice remanded the case, saying the dependency court had used an incorrect legal standard for determining whether there was good cause to depart from ICWA.

The second time, the appeals court ordered the dependency court to act quickly, noting the lengthy delays and Lexi’s need for permanence. After the second remand, the dependency court once again found no good cause, triggering the transfer of custody and protest. That’s the decision that was on appeal in the ruling handed down Friday.

In its opinion, the appeals court rejects the foster family’s contention that Lexi’s long stay with them—more than four years—is sufficient by itself to depart from ICWA’s placement preferences. While the best interests of the child is a consideration, the court says, it shouldn’t be the sole factor. Indeed, it says, such a ruling would undermine both ICWA and state laws favoring placement with family, and incentivize foster families to delay family reunification until enough time had passed to give them an advantage in court. The U.S. Supreme Court, it noted, disapproved of such behavior in a 1989 ICWA case.

In addition, the court says, the placement in Utah permits Lexi to live with her younger half-sister, who was placed with the Utah family at birth, and very near to her older half-sister. The Utah family also has a stronger connection to Choctaw culture, the court notes. There’s evidence that the foster family resisted Lexi’s visits with the Utah family. And, the court says, Lexi has her own attorney and guardian ad litem, who believes placement in Utah is in Lexi’s best interests. All of this weighs against a finding of good cause to depart from ICWA, the court says.

“We understand the court’s decision was not an easy one,” wrote the three-judge panel. “When an Indian child has been in a stable foster placement for a long period of time, [good cause] is one of the most difficult determinations a court can make.”

A spokeswoman for the foster family released a statement saying the family intends to appeal to the California Supreme Court.

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