LOS ANGELES – The attorney for a foster family that was
broken up when a 6-year-old girl was removed after a California appeals court
upheld a ruling based on the provisions of the federal Indian Child Welfare Act
(ICWA) and its state-law counterpart said a petition for review will be filed
by Aug. 8, asking the California Supreme Court to hear the case.
The girl, Lexi, who is 1/64 Choctaw, was removed in March
from the home of foster parents Rusty and Summer Page, with whom she had been
living for four years. Lexi was placed with distant step-cousins in Utah.
“The law is absolutely clear in California that once a child
has been thriving in an out-of-home placement, and reunification with
biological parents has failed, that child has a constitutional and statutory
right to stability and permanence in that home,” Lori Alvino McGill, a partner
at Wilkinson Walsh + Eskovitz PLLC and the attorney for foster family, told the
Northern California Record.
McGill said relatives do not have any preference under the law
at that point, even if they are close relatives and even if they formerly cared
for the child.
“The best interests of the child always prevail, as they
should,” McGill said. “But ICWA changes the rules for children who fall within
the definition of an ‘Indian child.’ In this case, that resulted in a removal
and replacement that was clearly contrary to the child’s best interests.”
McGill said there are several reasons why ICWA should not
have resulted in Lexi’s removal from the Page home, including a “good cause”
exception that is designed to give state courts flexibility to consider a
child’s particular circumstances in making a placement decision.
“This case is a textbook example of why the ‘good cause’
exception exists,” McGill said. “We know the damage that is done to children
who lose parent-child relationships. If the facts of this case don’t constitute
‘good cause’ to allow a six-year-old child to remain with the family she knows
as her own, then the exception is totally meaningless.”
In addition, McGill said the courts in California and
nationwide have been deeply divided for years on whether ICWA can apply to a
child like Lexi, who was never part of an American Indian community. McGill said Lexi’s biological
father was identified through a DNA test and no idea that he had any American Indian
heritage when the case began back in 2011.
“The law was meant to preserve ties to the Indian community,
not create a requirement that any child possibly eligible for enrollment
develop such ties,” McGill said.
McGill said the courts did not dispute that neither Lexi nor
her biological father had any ties to Choctaw culture at the time she was
placed in foster care. The Pages were told at the outset that Lexi fell under
the auspices of the ICWA, she said, but did not learn any specifics until later
on. Once the Pages were told of her biological father’s enrollment in the
Choctaw Nation, McGill said they reached out to the Nation and asked for
age-appropriate resources for Lexi.
“They decided before they knew anything about Lexi or the
Pages that they were going to seek placement with extended relatives,” McGill
McGill said the step-cousins who fought to remove Lexi from
the Pages’ home, however, have no American Indian heritage and no ties to the tribe
other than those they formed for the purposes of Lexi’s case.
McGill said she expects the California Supreme Court to decide
fairly quickly whether or not it will hear the appeal. If it grants review, an expedited schedule
will be requested, but McGill said the appellate process would take at least a
few months. In the meantime, she said the Pages will continue to press for
contact with Lexi, who has not been allowed to have a single phone call to the
foster parents since she was taken from the home in late March.
“My view is that the placement preferences may appropriately
be used as a sort of tie-breaker at the relevant time - if there is a preferred
placement seeking custody when the child needs a placement - but that it is
both unconstitutional and immoral to apply them in a way that tears a child
from a loving home where she has been thriving for years,” McGill said “We
don’t do that to other children in this country – only Indian children are
subject to that fate.”