On March 21, six-year-old Alexandria P. (“Lexi”) was carried screaming away from the home where she had lived for two-thirds of her life. This traumatic removal has drawn attention around the world to the negative consequences of the Indian Child Welfare Act (ICWA). But careful study shows that ICWA is only part of the story.
Seventeen-month-old Lexi was removed from her father in 2010 when he was jailed for auto theft and selling stolen auto parts, according to Indian Country Today. Her mother had a long history of substance abuse, and had lost custody of at least six other children. Lexi’s father initially denied any Indian heritage but his mother alerted the court to his membership in the Choctaw tribe. The court found that ICWA applied, and the tribe was brought into the case.
By October 2011, the “R” family in Utah had expressed an interest in adopting Lexi. The family is very loosely related to her father; Ms. R’s uncle is Lexi’s paternal step-grandfather. The R’s now have custody of Lexi’s half-sister, according to the Children’s Law Center, which represents Lexi in court.
The tribe decided to keep Lexi in foster care in Los Angeles, so that her father could visit as he tried to reunite with her. But if reunification failed, the R’s would be its choice to adopt Lexi, in accordance with the preference for family embodied in ICWA.
Lexi lived in two foster homes before she was placed with Rusty and Summer Page at the age of two in December 2011. According to testimony before the California Court of Appeal, within a few months she had bonded with the entire family and considered the Pages to be her parents and their children to be her siblings.
Lexi’s father stopped visiting, and indicated in September 2012 that he no longer wanted custody. The Pages expressed their interest in adopting Lexie, but were told that the tribe had selected the R’s as Lexi’s adoptive parents. The Los Angeles Department of Children and Family Services (DCFS), Lexi’s attorney, and her father all agreed with this plan. So the Pages hired their own lawyer and challenged the plan.
On July 13, 2013, the court began a hearing that spanned five days over the course of three months. The court reached its decision on December 9, 2013, almost five months after the trial began. The court decided that the Pages did not have good cause to prevent Lexie’s placement in Utah but granted their petition to keep Lexie in their home, pending appeal.
On August 15, 2014, the appeals court ruled that the Pages did have good cause to challenge the adoption, and sent the case back to the original court.
One year and seven months later, the original court issued its decision. Lexie was going to Utah.
There is more than enough blame to go around here.
ICWA gave jurisdiction over a child who was 1/64 Choctaw to a tribe that her father did not even know he belonged to. This goes well beyond the purpose of the act, which was designed to stop the wholesale removal of Indian children from their families and tribes.
DCFS and Lexi’s attorney supported the tribe’s decision, and might have made the same choice in the absence of ICWA. A definition of family which prioritizes the ties of blood and even marriage over the realities of bonding and attachment may not be in the best interests of children, as I discussed in an earlier column.
The Children’s Law Center reports that Lexi’s half-sister is also with the R’s. Lexi never lived with this half-sister. She has three foster siblings with whom she has lived for four years.
In my opinion as a former child welfare social worker, DCFS did not manage the case in accordance with best practice and state law. When a state wants to place a child in another state, it must formally request that the second state evaluate the proposed guardians, a process that can take six months or longer.
DCFS waited until reunification failed before filing this request, even though California law calls for “concurrent planning” in such cases. By the time the approval was received, the Pages were able to claim “de facto parenthood” and delay the placement.
But the foster parents also bear considerable responsibility for Lexi’s suffering. If they had not challenged the decision of the agency and the tribe, Lexi could have been placed with the R’s years ago and the trauma of her transition would have been much less.
Finally, the greatest share of blame belongs to a legal system that ignores a child’s sense of time, and to the politicians that refuse to provide the funding that would enable the courts to act with more urgency. It has been over four years since the Pages filed their first motion. Lexi has now spent over two-thirds of her life with the same family. Removing her from them is truly abuse by the state.
This column was published in the Chronicle of Social Change on March 29, 2016.
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