Family Law Prof Blog

Editor: Margaret Ryznar
Indiana University
Robert H. McKinney School of Law

Tuesday, January 17, 2017

SCOTUS turns down Indian Child Welfare Act challenge brought by foster parents of Choctaw girl

From The ABA Journal:

The U.S. Supreme Court declined on Monday to hear a foster family’s challenge to the adoption of their former foster daughter under the Indian Child Welfare Act.

Rusty and Summer Page of Santa Clarita, California, had asked the Supreme Court to reconsider a Los Angeles juvenile court’s ruling that there was no good cause to depart from the placement preferences in the Indian Child Welfare Act. The Pages had cared for the girl, known in court as Lexi, for four years and wanted to adopt her.

However, Lexi also had extended family members who sought to adopt her once it was clear that a reunion with her birth father was not possible. And Lexi is part Choctaw, a federally recognized American Indian tribe, which means the Indian Child Welfare Act’s placement preferences applied. ICWA gives a higher preference to family members seeking to adopt, as does California law. The Pages argued that changing the girl’s placement after four years would be difficult for her, given her rocky emotional adjustment when she first came to them, but the lower court ultimately disagreed.

In their petition, the Pages argued that the lower court misapplied the standard of review for good cause to depart from ICWA, but also that ICWA should not apply to children who had never been part of an American Indian family. Lexi’s only parent with Choctaw blood is her birth father, who never had custody of her. This “existing Indian family doctrine” is a subject of conflict in the lower courts, the Pages’ petition said, and warrants review. The Pages also argued that ICWA singles out Native children for disparate treatment based on race, in violation of the 14th Amendment’s equal protection clause.

The Supreme Court made no comment when it denied certiorari in the case Monday. The Pages issued a press release saying “To say we are heartbroken is an understatement… While this is certainly a crushing blow, it will not stop us from fighting for Lexi’s rights and the rights of other children unnecessarily hurt by the Indian Child Welfare Act.”

Read more here.

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Normally, I would agree with the saying: blood is thicker than water, but not here. If the girl is better off with her foster parents, no matter what their ethnicity is, then she should stay with them. Especially if the birth father does not even have custody.

Posted by: Reed James | Jan 17, 2017 2:12:39 PM

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