Despite ICWA, Court Rules Navajo Child Will Remain With Non-Indian Guardians

The Arizona Court of Appeals has ruled that a Navajo child can stay with his non-native, non-relative guardians, despite a federal law that directs otherwise.

The appeals court, in an August 28 ruling, upheld a juvenile court decision that found good cause to deviate from the Indian Child Welfare Act (ICWA). The act gives placement preference of adopted American Indian children first to family members, second to members of the same tribe and third to members of another tribe.

In this case, the court found that the bond formed between the 2-year-old child—identified as “Z” in court documents to ensure privacy—and his guardians weighed more heavily than other factors. The court also severed the rights of the biological parents.

“While the interest of the [Navajo] Nation and the Congressionally-presumed interest of Z in maintaining his heritage weighed against a finding of good cause to deviate from the ICWA’s preferences, on this record we cannot say the court erred in weighing all these interests,” the appeals court wrote in a unanimous ruling.

Attorneys familiar with the case are calling it a violation of the ICWA.

“It’s contrary to the majority of the cases and of the intention of the act,” said Craig Dorsay, a Portland, Oregon-based attorney who previously worked on the Navajo Nation and has worked with thousands of ICWA-related cases.

“It’s a concerning case,” Dorsay said. “The majority opinion states what I would call an anti-Indian child welfare case.”

The child was “rescued” from his parents’ home at the age of 1 month, the ruling states. A petition was filed against the biological mother, alleging that the child was living in a drug house infested with cockroaches and had not been bathed or taken to a doctor since birth.

The courts were unable to locate the mother to determine whether the ICWA applied, the ruling states. Z was placed with the brother and sister-in-law of the alleged father. A paternity test later proved the man was not the biological father and that Z was living with non-relatives. No other father has been identified.

By then, the child had spent 11 months with his adoptive family, and the Arizona Department of Economic Security had established that the family provided good care to the child. The DES also reported that the tribe initially failed to offer alternative homes consistent with the ICWA. Although the biological mother eventually produced the names of six relatives who could care for the child, the DES advised the court that good cause existed to deviate from placement preferences.

“Z had attached and bonded with the family,” the juvenile court found. “Z would suffer severe distress if he was removed from that placement. …Z had been in the current placement almost his entire life where he caught up on developmental milestones, and no party offered alternative homes consistent with ICWA.”

The juvenile court ruling also found that the caretakers, who are certified to adopt Z, agreed to expose the boy to his Navajo heritage, including working with the boy’s relatives to ensure he grew up with access to Navajo culture, ceremonies and language.

“Essentially, these are the only parents the child has ever known,” the juvenile court stated.

The appeals court upheld the findings, despite arguments from the Navajo Nation that the ruling be reversed.

The Nation argued that the court did not properly seek alternative homes with family or tribal members, that evidence suggesting Z will experience distress if moved from his home is lacking and that Z will only be properly exposed to his Navajo culture if he is in a traditional Navajo home.

The Nation also argued that the sister of the boy’s maternal grandmother was willing to take him, ensuring he stayed with his biological family and was exposed to his culture.

The appeals court disagreed with those arguments.

“The crux of the juvenile court’s concern was with moving Z from the only family he had known for the vast majority of his life to a family he had never met,” the ruling states. “As the court made clear in its ruling, moving Z after 15 months would have a devastating effect on him.”

Dorsay disagrees with the decision and with many of the legal and social proceedings of the case.

“In almost every [ICWA] case, you get the argument that the child has bonded and it would harm the child to remove it from the home,” he said. “If that were the prevailing standard, the ICWA would be worthless. Every child bonds with his caretakers. I think a lot of the time the courts are talking about the bonding of the parents with the child. Any move creates difficulty, but children can bond again.”

Dorsay said the court’s ruling encourages dishonesty in adoption.

“If the courts are going to rule in favor of a bond, that’s encouragement for parents not to file under the ICWA until a bond has been created,” he said. “In the adoptive setting, attorneys sometimes recommend not filing with the ICWA so a bond can occur. This sort of ruling encourages violations of the ICWA.”

The ruling comes one month after another state court, in a similar case, ruled in favor of the birth family.

The South Carolina Supreme Court on July 26 denied a request from a non-native, non-relative adoptive couple to keep a Cherokee toddler. Baby Veronica, 2, was returned to her biological father in Oklahoma, although the only parents she ever knew already had legally adopted her. The court ruled that the adoptive family and the child likely bonded, but that the ICWA is clear about giving placement preference to the biological family.

“In the South Carolina case, the tribe is painted as the villain,” Dorsay said. “But you have to remember the tribe is interested in the health and welfare of the child.”

The ICWA was designed to preserve the relationship a child has with its relatives and its tribe, Dorsay said. Although non-native adoptive families can promise to expose children to ceremonies and culture, there is no substitute for immersion.

“In the Indian community, grandparents, aunts and uncles, they all share equal responsibility for the child, and the child’s life is enriched by this,” he said. “Unfortunately, like in the Arizona case, not nearly enough effort was made to find suitable homes with relatives. The act was made to utilize the extended families. If the act was followed to begin with, we wouldn’t have these cases.”

Rulings like the one in the South Carolina case, where the adoptive parents may have means and clout, can encourage people to advocate for changes to the ICWA, Dorsay said.

The Act, however, simply provides criteria that state courts must consider when making decisions, Terry Cross, executive director of the National Indian Child Welfare Association (NICWA), wrote in an email.

“Our role at the NICWA is to help ensure that courts know about the law and that families know their rights under the law,” Cross wrote. “It is the goal of ICWA and the intent of NICWA to support the placement of Indian children in safe and healthy Indian homes wherever possible.”