For several years, scarcely a month has passed without a movie, television or widescreen, news article, or book coming out decrying the heartache and tragedy of prospective parents, who have lovingly cared for a small child or infant for years, having their young charge torn from their arms by “the legal system”. A recent example of such a scenario appeared in an internet article written by Hailey Bronson-Potts for L.A. Now. See http://www.latimes.com/local/lanow/la-me-ln-native-american-santa-clarita-foster-20160321-story.html.
Ms. Bronson-Potts’ report describes the trials and tribulations faced by a Santa Clarita foster care family whose plan to adopt the little girl who had lived with them for the last 4 years. The child had blood ties to the Choctaw Tribe and, after many trials and appeals, was ordered under the federal Indian Child Welfare Act (“ICWA”) restored to a member of her family, also of the Choctaw Tribe located in Utah. The intent of Congress under ICWA was to “protect the best interests of Indian children and to promote the stability and security of Indian tribes and families” (25 U.S.Code § 1902). Congress passed ICWA in 1978 due to the high number of Indian children whose ties to their Native American culture were being eradicated as a result of adoption, foster care, and other placements outside of tribal homes and environment by public and private agencies. Additional information can be found on the homepage of 2016 the National Indian Child Welfare Association website.
The tears and emotional agony faced by Rusty and Summer Page, the long-time foster parents of the part-Choctaw child, and their other children, cannot help but raise empathetic feelings of sadness and compassion for them. However, the drama engulfing them is not unusual in the adoption and foster care systems. Similar scenes play out regularly in related areas of California domestic and family law. Some of the most common areas where such conflicts can be found are in Juvenile Dependency and Family Court.
The State of California utilizes statutes often found in the Welfare and Institutions Code (“WIC”) to determine the placement of at-risk children. In situations involving Indian children, the basic statement of California’s effort to advance ICWA is contained in WIC, §§224, et seq.:
“(a) The Legislature finds and declares the following: (1) There is no resource that is more vital to the continued existence and integrity of Indian tribes than their children, and the State of California has an interest in protecting Indian children who are members of, or are eligible for membership in, an Indian tribe. The state is committed to protecting the essential tribal relations and best interest of an Indian child by promoting practices, in accordance with the Indian Child Welfare Act (25 U.S.C. Sec. 1901 et seq.) and other applicable law, designed to prevent the child’s involuntary out-of-home placement and, whenever that placement is necessary or ordered, by placing the child, whenever possible, in a placement that reflects the unique values of the child’s tribal culture and is best able to assist the child in establishing, developing, and maintaining a political, cultural, and social relationship with the child’s tribe and tribal community.”
Nearly identical aims and goals are embodied in California’s Family Code (“FC”). These provisions are located at FC, §§170, et seq. Along with similarly-detailed definitions and implementation instructions, California’s FC has a legislative finding mirroring precisely the same concerns as in WIC, §224, specifically FC, §175. In short, whenever the conditions involving the parents implicate or necessitate the placement, permanent or temporary, in another home, an inquiry will be made by the court and local government’s child protective agency, with intensive and painstaking investigation the order of the day whenever the child has significant Indian Tribal ancestry and affiliation. In Los Angeles County, that agency is the Department of Child and Family Services (“DCFS”). That process applies whenever the court must consider custodial placement of a child, particularly when placement is not with a family member. FC, §3041(e).
Notwithstanding the years of emotionally scarring pain suffered by the Santa Clarita family in Ms. Bronson-Potts’ article, their example can serve a salutary purpose. There are many good people in our community, who have good homes and much love to share with children whose parents have abandoned them, or been deprived of parental rights because of the harm inflicted on their children. For the most part, dedicated and experienced members of the DCFS staff will conduct competent investigations of the adoptive or foster care parents.
However, that is not always the case. Phillip Browning, Director of the DCFS, was quoted in Ms. Bronson-Potts’ piece “…when a court makes an order, we must follow it.” There is no reason to doubt the sincerity of that statement or basis for doubting that the DCFS carried out its duties fully and compassionately respecting the Page family litigation. However, that is not always the case, as seen in a recently published opinion from the Fourth Appellate District, in San Diego, California.
In re Isabella G. (April 18, 2016, Division One), Case No. D068718, involved a Juvenile Dependency Court action in which permanent placement of a minor child was at stake. While this litigation did not implicate Indian Child Welfare Act, it does stand as an example of how the rights of loving and qualified adoptive or foster care parents can be trampled on. Over a period of some two years, the child’s grandparents repeatedly requested that they be considered and investigated as candidates for permanent placement of their grandchild. As family members, the grandparents had preference for permanent placement under the law, specifically under WIC, §361.3. However, the local child protective agency (“Agency”) failed to carry out any investigation, mislead and manipulated, and generally neglected to carry out mandatory duties owed to the child and the grandparents. The Agency’s recommendation of placement with a non-family member (though someone who was known by the family) was accepted by the Dependency Court, and the grandparents appealed.
The Court of Appeal reversed the decision of the lower court in a telling indictment of the many abuses and failings of the Agency and Dependency Court. Extensive discussion of those details is beyond the scope of this tract, and not necessary to its message. Emphasis must be given that some child protective staff members and judicial officers do carry out their duties carelessly or with intentional neglect. However, most are dedicated public servants doing a very difficult job.
The point here is that adoption and foster care, temporary and permanent, with what appears a growing degree of regularity, can become a veritable firestorm of legal complications, inconsistencies and injustice. Whether the issues causing the conflicts arise from Indian Child Welfare Act, misapplication of family preference, or insensitivity to special needs children, the prospective parent must keep closely involved with all aspectS of the investigative and adjudicative process. If your situation begins to feel like something has gone awry, you are probably correct. It is best to consult with experienced legal counsel early on in the adoption or foster parent process.