Montana Supreme Court Uphold ICWA

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HELENA, Mont. - A Montana Supreme Court ruling set another precedent that further strengthens the Indian Child Welfare Act.

The state's high court concluded that an attempt to allow a non-Indian couple to adopt an American Indian child did not meet the criteria of good cause that would circumvent the ICWA. The court said a state district court erred when it ruled that the proposed adoptive parents presented the good-cause case that would allow ICWA to be ignored.

The case for the proposed adoptive parents, Doug and Janinie Burrows-Alberda of Bozeman, non-Indians, centered on proving the child (referred to as C.H.) was the victim of abuse. The court was told the mother, not identified, used drugs while pregnant and that possible mental conditions from Fetal Alcohol Effect could surface in the future was good cause to abandon ICWA and rule in favor of adoption.

The Alberdas also claimed they were best equipped to deal with any future problems the child, now 2, might have. They argued that because the child had been with them for two years, the trauma of moving to another family was also good cause.

"There is no evidence on record that such disorders exist currently or are inevitable. Here, the record is devoid of testimony that C.H. was certain to develop an attachment disorder if removed from the Alberdas home. Nor was there testimony that she was certain to suffer from other neurodevelopmental problems," the high court said in the written ruling. It denied the district court approval of this argument, and stated that no case for good cause had been presented.

On the other side, members of C.H.'s extended family applied for the right to adopt C.H. Scott and Tena Ehret of Oregon also claimed to be adequately prepared to deal with any future mental or physical problems the child might encounter. They argued they were in a better position to provide for the child's cultural upbringing.

The Supreme Court denied nine points that had been agreed to by the district court. The ICWA allows for good cause abandonment of the law, but in this case, as in another in Minnesota, the supreme court said none of the criteria was proved for a good-cause case.

"Consequently, the District Courts conclusion that the stated factors weigh in favor of a determination that good cause exists is an incorrect application of the law," the Supreme Court writing stated.

The Supreme Court returned the case to the Gallatin County district court, to be turned over to the Department of Human Services to prepare for the Ehrets adoption of C.H.

The Alberdas argued their home provided a stable and loving environment for C.H. The Supreme Court ruled that although the lower court agreed, the good cause needed to satisfy the child welfare act was not met.

The state court's ruling, along with that of Minnesota's Supreme Court decision that nearly mirrors that of Montana, provide all states with case law that more clearly defines the good-cause portions of the child welfare act.

"The express policy of the ICWA is to protect the best interests of Indian children and to promote the stability and security of Indian tribes and families by the establishment of minimum federal standards for the removal of Indian children from their families and the placement of such children in foster or adoptive homes which will reflect the unique values of Indian culture," the Supreme Court ruling stated.

"In any adoptive placement of an Indian child under state law, a preference shall be given, in the absence of good cause to the contrary, to a placement with (1) a member of the child's extended family; (2) other members of the Indian child's tribe; or (3) other Indian families."

The act does not define the term good cause and it doesn't set criteria to consider whether good cause exists. The Department of Interior implemented guidelines for state courts to follow. "We determined that these guidelines are persuasive and we apply them when interpreting the ICWA," the high court stated.

Congress through the (act) has expressed its clear preference for keeping Indian children with their families, deferring to tribal judgment on matters concerning the custody of tribal children, and placing Indian children who must be removed from their homes within their own families or Indian tribes.

Proceedings in state courts involving the custody of Indian children shall follow strict procedures and meet stringent requirements to justify any result in an individual case contrary to these preferences. Federal regulations implementing the act, the recommend guidelines and any state statutes, regulations or rules promulgated to implement the act shall be liberally construed in favor of a result that is consistent with these preferences," the court stated.

C.H. was born March 19, 1997. Two months later the child was admitted to the Bozeman Deaconess Hospital where she was diagnosed with 16 fractured ribs in various stages of healing. It was also discovered C.H. had fresh bruises on her body and arms and legs. It was determined the injuries were the result of an adult holding and squeezing her until her ribs broke. She was placed in emergency protective custody and, after release from the hospital, placed with a foster family, the Alberdas. The mother, father and abuser were never identified to the court.

The court directed C.H.s smooth transition to the Ehrets. The two families were encouraged to work together during the proceedings to reduce any emotional trauma.