Saturday, June 6, 2015

Families Fight Native American Adoption Rules

by AMANDA LOVIZA-VICKERY


ALEXANDRIA, Va. (CN) - The Indian Child Welfare Act prevents Native Americans from choosing the best adoptive family for their children, parents and adoption agencies claim in Federal Court.
     The lawsuit from the National Council for Adoption et al. is not the first to challenge the constitutionality of the 1978 law and its enforcement by the Department of the Interior and the Bureau of Indian Affairs.
     At one time, the federal government went out of its way to remove children from reservations, under its so-called assimilation policy.
     Now the law takes children such as 10-month-old plaintiff T.W., who has never lived on a reservation and has no tangible ties to his tribal roots, and narrows his choices for an adoptive family. His plaintiff guardian calls that an unconstitutional violation of the baby's and his parents' due process rights.
     The two plaintiff children and their families present different facts.
     T.W. is Navajo. His non-Indian foster parents want to adopt him. His guardian sues on behalf of the child.
     Co-plaintiffs D.V. and N.L. are birth parents of a child whose father, D.V., is a Yaqui. They do not live on a reservation and they do not want the Pascua Yaqui tribe to have a say in the adoption process. They are suing on their own behalf.
     T.W. was born in 2014. On Nov. 4, when he was 3 months old, he was left unattended on a sofa while in the care of his uncle. He fell and his two young cousins climbed on top of him, according to the May 27 lawsuit. He suffered severe brain damage, hemorrhages in his eyes and fractured ribs.
     While he was hospitalized, his mother told a social worker she would not be able to give him the 24-hour care he required. T.W. was placed in a foster home.
     A neurologist predicted that T.W. will never walk, talk, eat on his own or use the bathroom on his own, but he has made steady progress in the care of his foster parents. They can provide 24-hour care, and allow his mother to visit him, his guardian says.
     His foster parents want to adopt him, and his mother wants them to adopt him, but as an "Indian child," his foster placement and adoption are subject to Indian Child Welfare Act regulations.
     The ICWA states that absent "good cause to the contrary," a state court must give preference to foster placement with a member of an Indian child's extended family, a foster home licensed or approved by the Indian child's tribe, an Indian foster home, or an institution approved by an Indian tribe.
     T.W.'s foster parents meet none of those requirements, so the Arizona Department of Child Services must search for a Native American family, even though the agency supports adoption by his non-Indian foster parents.
     The child's best interests and his bonding with his foster parents are not factors to be considered in the "good cause" determination under the ICWA, according to the lawsuit. Rather, adherence to ICWA regulations and good-cause requirements will delay his adoption, if not remove him from his foster parents.
     The ICWA thereby violates constitutional rights of due process and equal protection to Indian children, their birth parents, and their would-be adoptive parents. It denies birth parents' the ability to direct the upbringing of their children and limits the children's adoption options based on their ancestry, according to the 54-page complaint.
     Also, the ICWA's 2015 Guidelines violate the Administrative Procedure Act because they did not adhere to notice and comment regulations, they tell states what they cannot do, and they diverged drastically from earlier ICWA guidelines, according to the lawsuit.
     In South Carolina in 2013, several birth mothers of Native American children put up for adoption filed their own lawsuit challenging the constitutionality of the ICWA, alleging that the law violates their right to choose adoptive parents who will provide a stable environment for their children.
     The U.S. Supreme Court ruled in 2013 that the Indian Child Welfare Act does not require that a Cherokee child be taken from her adoptive family and given to a Cherokee father she never knew. Justice Samuel Alito wrote that ruling for a 5-4 court.
     The mother in that case then sued the Cherokee Nation , which supported the child's placement with her Indian father. Lead plaintiff Christinna Maldonado also challenged the constitutionality of the Indian Child Welfare Act.
     The families in the new case are represented by Jacob Siler with Gibson, Dunn & Crutcher, of Washington, D.C. Building Arizona Families is also a plaintiff in the Virginia case, on behalf of its clients D.V. and N.L. 
Courthouse News Service

 http://www.courthousenews.com/2015/06/05/families-fight-native-american-adoption-rules.htm