Native American Heritage Over the Best Interests of a 6-Year Old?

A 6-year old was removed from her foster family after living with them for nearly 4 years because she is 1.5% Choctaw.

Alexandria, nicknamed “Lexi”, was removed from the custody of her biological parents at the age of 17-months. Her mother had substance abuse problems, while her father has an extensive criminal history. Both have lost custody of other children.

Since her father is an enrolled member of the Choctaw tribe, the tribe gets a say in where Lexi is placed. The Choctaw tribe agreed to send her into foster care in order to “facilitate efforts to reunify the girl with her father.” Reunification attempts with the father ultimately failed and the tribe recommended Lexi be placed with a family in Utah who has custody of Lexi’s half-sister.

Lexi ended up in the care of the Page family. The 2-year old bonded with the Pages and quickly became a member of the family. Although aware that Lexi was always meant to be a temporary foster child, the Pages fell in love with Lexi and quickly tried to adopt her, which triggered a legal battle.

A Los Angeles County Superior Court ruled Lexi be placed with the Utah relatives. Lexi would have originally been 3 or 4 when placed with the Utah family, but

the Pages made attempts to appeal the decision. By the time an Appellate Court stay preventing Lexi’s removal from the Pages was lifted, Lexi had already turned 6.

What is the ICWA?

The Indian Child Welfare Act is a federal law enacted to promote keeping American Indian children with American Indian families. The purpose is to “protect the best interests of Indian children and to promote the stability and security of Indian tribes and families.”

A high number of Indian children were being removed from their families and being placed in non-Indian families with zero Indian culture and, thus, tribal survival was threatened. Congress recognized that what’s in the best interests of a non-Indian child is not necessarily what’s in the best interests of an Indian child. As a result, Congress enacted the legislation on the basis that the interests of tribal stability are just as important as the best interests of the child.

The kicker here is that the Utah relatives are not American Indian and are only related to Lexi through the father’s step-grandfather. That doesn’t seem to effectuate the purpose and intent of the law in the first place.

Wait a Minute…

Something seems wrong here. Isn’t the purpose of all custody cases to keep families together if possible?  Don’t get me wrong, keeping culture and heritage alive is important, but, the entire purpose of creating the best interest standard is to do what’s actually best for the child, not necessarily what’s best for the family or its heritage.

Sometimes, keeping families together isn’t always possible and certainly isn’t always what’s in the child’s best interest. Had Lexi been placed with her relatives at the time she was removed from the custody of her parents, then I’m all for it.  Removing Lexi after 4 years from the only family she ever knew does not seem to be in her best interests. The LA court stated that Lexi was not likely to suffer emotional harm after being taken away from her foster family.

“Don’t let them take me. I’m scared.  I’m scared.  Don’t let me go.”

Those were the words Lexi spoke to her foster father and those don’t sound like the words of a child not suffering emotional harm. Clearly, Lexi had some awareness of what was happening and the fact she was able to recognize she was going to be taken away from her family seems counterintuitive to the court’s reasoning.

There’s Probably No Solution That Will Make Everyone Happy

A child’s cultural identity should not play a factor into a custody decision. Period.

However, this law is in place and because the purpose of the law is to preserve tribal culture, I want to reiterate the fact Lexi’s extended relatives have nothing to do with American Indian culture. Once the reunification attempts with the father failed, the best interests of the child standard should have taken control, not the ICWA law.

Although support and opportunity for interaction with extended family members is a factor, the best interests of a child also includes a need for continuation of a stable home environment, the interaction and interrelationship with members of the household, and an adjustment to school and community.

Despite the fact the Utah family made monthly visits to California to spend time with Lexi, she had become a part of the Page family, had grown close to her new brother and sisters, and had become a part of the community. She became attached to the Pages.

Page Family to Continue to Appeal

The Page family plans to exhaust all possible avenues at the state level, including appealing to the California Supreme Court.

The case is similar to a 2013 United States Supreme Court case involving the same ICWA law. The Capobianco family adopted a child at birth with the mother’s consent. Unbeknownst to the family, the father was unaware of the adoption. When the biological father learned of the adoption, he tried to assert his custody rights under the ICWA. The Supreme Court sided with the adoptive family, stating the biological father could not rely on the ICWA when he never had legal or physical custody at the time of the adoption proceedings.

In Lexi’s case, the father once have custody, and all reunification attempts had failed, which means the Pages may have a chance in a reversal of the LA court decision.