At Jackie Robinson Stadium in Los Angeles, Chris Moore, 11, lines up on a long-jump pit partly shaded by shimmering magnolias. His parents, John and Terri, watch from behind a chain-link fence.
Step . . . step . . . step . . . sprint . . . leap. Sand sprays up around Chris' landing and his parents burst into applause. "Great job, Chris! Great job!" his dad yells.
The boy trots over to the fence and—there's really no other way to describe this—sparkles. Green-eyed, freckle-faced, ears poking through his strawberry-brown hair, he twines his hands through the links and grins as he reports his personal best: "Three-three-nine!"
That Chris belongs to the man and woman on the other side of the fence is signified right on his sky-blue warm-up pants, where the name "Moore" is embroidered across his left thigh. No big deal to most kids. But to Chris, being a Moore is everything.
Six years ago, when his last name was Bybee, police found Chris, then 5, and his brother Anthony, 4, in an apartment in Compton, Calif., an L.A. borough notorious for gangs, crack, and murder. The apartment was a hovel: no electricity, no running water. The toilet had overflowed and the bathtub was filled with clots of tissue and a suspect mix of murky liquids. The boys slept on cardboard boxes after their mother left them there with strangers, who, when she did not return, called the police.
The following month, in July 2000, John Moore, a Long Beach, Calif., screenwriter and his wife Terri, a second-grade teacher, opened their home to Chris and Anthony, who is dark-haired, olive-skinned, and shyer than his brother. When the boys became their foster kids, "we fell in love with them immediately and they quickly became attached to us," Mr. Moore said. "They began calling us Mom and Dad after about three to four weeks."
A month later, when no relatives had come forward to claim the boys, the Los Angeles County Department of Child and Family Services (DCFS) began assessing the Moore's home for what seemed a fast-track adoption. The Moores were overjoyed. But six months later, they say, race-matching, political correctness, and the chilly indifference of social-services bureaucrats nearly ripped a fledgling family apart.
That's because Chris and Anthony are descendants of the Iowa Tribe of Kansas and Nebraska Indians. That means they're subject to the Indian Child Welfare Act (ICWA), a 1978 law that gives federally recognized Native American tribes near-complete sovereignty in adoption decisions involving children with Indian blood—even those who, like Chris and Anthony, have never had a moment's prior contact with their ancestral tribe.
Like many child welfare laws, ICWA began with good intentions. In the 1960s and '70s, American Indian children were roughly six times more likely than other kids to be removed from their family homes and placed in foster care, according to an April 2005 General Accounting Office report. Such removals resulted from a "lack of understanding of tribal cultures and child-rearing practices by state child welfare agencies and courts."
The federal government recognizes 562 tribes, each of which has a different "blood quantum" (a specified amount of tribal blood) requirement for membership. Congress intended ICWA to protect Native American families from unwarranted removal of their children, give tribes a role in making child welfare decisions, and preserve their social and cultural standards.
"ICWA protects the right of Indian children to tribal resources, to own property, to run for tribal office, and learn the roles of traditional clans," said Terry Cross, executive director of the National Indian Child Welfare Association.
But Lisa Morris, administrator of the Christian Alliance for Indian Child Welfare (CAICW) and an ICWA critic, points out that Indian children adopted by non-Indian families retain the same rights. ICWA, she said, enables tribal governments to interfere in custody battles between parents, overturn county decisions in favor of the tribally enrolled parent, and for even part-Indian kids with a non-Indian family ready to adopt them, delay placement while tribes attempt to gain custody instead.
That's what happened to the Moores. Six months passed and the Moores surrounded Chris and Anthony with friends, family, and church activities. Social workers were encouraged by the rapid bonding between the Moores and the boys. Meanwhile, no other blood relative had come forward and any "relative preference" that might have applied under California law had already expired.
Then, in December 2000, Chris' grandmother surfaced. She had had no prior relationship with the boy but told DCFS workers that she wanted custody of him. Only Chris, though—she did not want Anthony.
"The kids' social workers, therapist, and attorney all had the same concerns," Mr. Moore said. "Where has this woman been? Why should she suddenly show up now when Chris is doing so well? And how could she even consider splitting the boys up?"
Then a new wrinkle: The grandmother notified DCFS that the boys were of Native American descent. And where the young brothers had settled into a stable, loving home and were on the fast track to permanency, suddenly DCFS slammed on the brakes.
DCFS spokesman Stuart Riskin said the agency is prohibited by confidentiality rules from commenting on any specific case, or even confirming that the agency worked with the Moores. As for ICWA, he said, "We are mandated to protect the heritage and integrity of Native American children who come under our jurisdiction. We refer them back to the tribe and the tribal elders take it from there."
The Iowa tribal elders did their best to take both boys from the Moores, the couple said. A two-year custody battle ensued during which the tribe attempted to place Chris and Anthony with Chris' grandmother (who finally agreed to take both boys), even though she was white like the Moores and had no connection to the tribe.
The Moores say the boys endured forced weekend visitation in preparation to make the move. Twice before visits, Anthony vomited (a reaction a social worker said was "normal," Mr. Moore claims) and once clawed his face until it bled. Chris suffered nightmares. Meanwhile, the Moores claim that a Native American social worker in the DCFS Indian Unit had sided firmly against them—even after the grandmother told the boys' therapist that she intended to return Chris to his father, who had been in trouble with the law and had had very little contact with his son since birth. Anthony would stay with her.
All this because 30 years earlier, the boys' maternal grandfather, who was one-quarter Indian, had enrolled in the Iowa Tribe. Two generations later, Chris and Anthony were, at most, one-sixteenth Indian. But ICWA's jurisdiction is ironclad and applies whether a parent is full-blooded Indian or not.
Under the law, tribal wishes even supersede those of birth parents. In the 1989 case, Mississippi Choctaw Indian Band v. Holyfield, an unmarried man and woman who were enrolled members of the tribe gave birth to twins 200 miles from the tribal reservation. After their parents consented to release the children for adoption, they were adopted by the Holyfield family, who were non-Indian. The Choctaw challenged the adoption, but the Mississippi Supreme Court ruled that the adoption was legal because the twins had never been physically present on the reservation and because they were "voluntarily surrendered" by their parents, who went to some efforts to see that they were born outside the reservation and promptly arranged for their adoption. But on appeal, the U.S. Supreme Court ruled that Congress could not have intended to allow "individual Indian parents to defeat the ICWA's jurisdictional scheme simply by giving birth . . . off the reservation."
The 2005 GAO report, requested by Rep. Tom DeLay (R-Texas), studied ICWA outcomes but was inconclusive. The agency was able to gather data on Indian children in only five states, and child welfare agencies responding to GAO surveys often answered only half the questions. Also, researchers interviewed tribes, child welfare officials, and adoption professionals, but no adoptive or foster parents.
The report did not reflect the claims of ICWA critics that the law has so mushroomed in supremacy that social-services agencies cede authority to tribal governments even when doing so will place children in harm's way.
In 2004, for example, Emilio Rodriguez, 3, and his brother Jose, 4, were beaten so severely that doctors say Jose will probably never walk or talk again. Both boys are of Mexican and Indian descent, and they had been living in a safe and stable Palmdale, Calif., home with their paternal grandmother. But using ICWA, the Ute Indian Tribe pushed to have them moved to the home of their maternal grandmother on the tribal reservation in Utah. On Aug. 30, 2004, three weeks after the Rodriguez kids moved in with her, the grandmother blackened Emilio's eyes and beat Jose into a coma. According to U.S. District Court records, the grandmother had a lengthy history of alcoholism and had already been convicted twice of child endangerment before social services, cleaving to the letter of ICWA instead of children's best interests, placed the boys in her home.
CAICW asserts that ICWA elevates tribal heritage above any other sort of heritage. For example, if a tribe requires one-sixteenth blood quantum for membership and intervenes in an adoption case, the child's Indian ancestry is said to trump his majority heritage, even if the child is fifteen-sixteenths Hispanic.
But NICWA director Cross said the law's reach isn't based on race. ICWA governs "a political status . . . it's an issue of citizenship," Mr. Cross said. A member of the Seneca Nation of Indians, Mr. Cross told WORLD that Native American children are always better off with a tribal family. Even an itinerant placement plan, he said, in which a child moved from tribal home to tribal home—a few months with a distant aunt, several weeks with a cousin, another few months with another relative, even if those relatives were strangers—would be "superior" to placement in a nontribal home, even if the child had already bonded with foster parents for a year and was established in school.
Lisa Morris and her husband, Roland, co-founded CAICW before he died of cancer in 2004. Mr. Morris was a member of the Minnesota Tribe of Leech Lake Indians. After watching many Indian children treated poorly under ICWA, the Morrises began to speak out. But they found it difficult to penetrate the bubble of institutionalized Native Americanism.
In 1997, for example, the Senate Indian Affairs Committee held hearings to consider amending ICWA. "We asked Sen. [Max] Baucus if we could testify," Mrs. Morris said. "He said no, they had everyone they needed to testify."
Those who did testify included tribal leadership, tribal lawyers, social-services employees, and people working in the adoption industry. "You didn't see non-Indian foster parents and adoptive parents," Mrs. Morris said. "You didn't see Indian children who have grown up in white homes. You don't see people like our family who have moved off the reservation and made a different life. No one is asking why they made that choice."
Despite the legal hurdles, Chris and Anthony officially became Moores in 2002. This year, the Moores added a daughter to their family, Ashley, who is part Hispanic and also a descendant of the Lumbee tribe. At 14 and charmingly frank, Ashley had bounced around the foster-care system for seven years after being abused by her mother. She now says the whole concept of race as a basis for adoption is "crazy." After Ashley's grandfather objected to the Moores' adopting her because of their skin color, she even made a running joke of it: "Now I tell my parents, you can't help me with my homework because you're white."
Copyright © 2006 WORLD Magazine
April 22, 2006, Vol. 21, No. 16
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Letter from Chris, 11 yrs old
How My Life Was Changed Forever ....(6)
All of a sudden I was awakened in the middle of the night by people wearing black clothing with badges. I didn’t know what was happening. It was happening so quickly. Something great was about to happen to my brother and me. I was full of sorrow. My brother and I were crying. We were hurt, and we were full of pain. Only God knew what was to become of my brother and me.
The police finally took Ant and me to the police station. There, the police let us sleep in the back of the car until it was morning. The next day Ant and I were taken to a big house to live until our social worker came to take us to a new family. The house was really big and beautiful. The house was better than the people who lived there.
The temporary house was horrible. There was a lady who ran it. She was very rude and mean. Whenever it was nighttime, I lay awake while Ant was fast asleep. I was crying so much it really hurt, and I was full of sorrow and pain. Sometimes I would even sit at the edge of my bed and call out my mother’s name frantically. I missed those days when I was with my mom. We had great times together.
Three weeks after Ant and I were taken to that house, our social worker came to take us to a new home. We were taken ... not too far from the other house. There John and Terri Moore took us into their house and they began to love us. Soon, we loved them, too. But we had problems. A relative of mine was trying to take custody. She finally lost and Ant and I were adopted.
When I was adopted I was so happy. We had a great day. That’s how my favorite Bible verse came to be James 1:27. It says, “Pure and undefiled religion in the sight of our God and Father is this: to look after orphans and widows in their distress, and to keep oneself unstained by the world.” This verse helps remind me that God looks after His children.
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This letter and the May 2006 letter came two years apart from two different people, but turned out to be asking for prayer for the same children. Sometimes good things take a little while to happen....
July 8, 2004 - from the foster mother ..................................(5)
I am a foster mother to a child of mixed race. "A" is ¼ native, ¼ African American, and1/2 Caucasian. She is 21 months old and has been with my family for 17 months. My husband and I are African American. We have made it known to the foster care agency, the state social worker, and the Tribe that we would like to adopt "A". We have recently been told that they will soon start proceedings to terminated parental rights but there is a native family available to adopt her. According to the ICWA we have no recourse to adopt her. I was also told that it could take several years before the adoption would take place. That would make "A" somewhere around 4-5 years old and even more bonded to our family. Ethically and morally she but not legally she is by all means our daughter.
Doing research to learn and understand more about the ICW Act I found your website and I'm am requesting any information that can help me keep "A" where she belongs. With the family that loves her, that has raised her and is also a part of her culture/heritage.
I would greatly appreciate any help you could give us (including your prayers.)
UPDATE February 10, 2005
...The tribe is involved though will not intervene until
mothers rights(not native) has been terminated, they have though,
identified a potential adoptive home (not us). Here are some of my
concerns:
1. there is no time limit. The state is required to notify the tribe
once a child is identified. It should not take years, for a childs fate
to be determined and then possibly be placed with strangers when they may
have been in a stable environment. (our child could be 4-5 years old and
be wisked away from the only family she's ever known)
2. Legal discrimination. We are an african american family. Part of our
child's heritage is african american. The ICW, gives the right to the
tribe to ignore any other heritage of the child, any other heritage is not
important/non existant. Most often, these children would get more native
american experience from adoptive parents than from the biological
parents. In many cases the biological parent has no involvement with
their tribe at all.
We love our foster daughter. We feel it is in her best interest that she
remain in the stable and loving home that she has always known and not be
removed for political reasons.
UPDATE February 14, 2005
Our little angle is still with us. Parental rights have yet to be terminated though they are discussing permanency planning. The SW states he supports us adopting her and has informed the tribe of this. He states the tribe is supportive (per his report), but I'm not holding my breath. Things change so quickly and information much often misinterpreted. We were hoping for an open adoption, which biological mom was open to, but she is now unaccounted for. We keep hoping and praying for the best. This little girl is so special to us. She has made me realize how precious, and what a miracle life is. Though I couldn't imagine her anywhere else, if we were to lose her that is a gift I will have for the rest of my life and I am honored to have been chosen to spend these years with her.
We will continue to fight for her and are current looking for a lawyer. Also Johnston Moore has given us some helpful information. Feel free to share my email address with any who can offer, or is in need of support.
May 10, 2006 - from their Grandmother (two additional children are in a second home, which is close to the above foster family and works well together.)
Dear Alliance, Thank you for taking time to read my letter. This is an all too familiar story of 3 little girls, age 3 1/2, 2 1/2, ad 1 1/2 years old. They are one quarter American Indian. They have been in a foster home since birth. Their parents, who were never married, were into the drug scene and the girls were taken from them by Child Protection Services. The foster parents are wonderful Christian people and have loved and cared for the girls as their own. They want to adopt, but the ...Tribal Council has found a distant relative that lives across the country in .... and is willing to take the girls.
The relative is a single woman; there would be no father in the home. She is a complete stranger to the girls. The foster parents are devastated, and I as their great-grandmother am also - I only want the best for the little ones. The girls mother and father are now in prison, serving an 18 month sentence for robbery. The mother has given her heart to the Lord and wants to get her life straightened out so that she can have her girls, but Child Protection Services say that it is too late. She is against the girls going to .... The father (1/2 Indian ) also thinks this would be harmful to the girls. The trauma that these little girls would have to endure would be horrible. They are now well adjusted, happy kids and don't deserve this injustice.
The girls mother is my granddaughter, whom I raised, and love dearly. Now that her brain is being healed from the drugs, and she is able to think and feel, she is going through deep grief for losing her babies. If you have any words of encouragement or know of anything that can be done to prevent this injustice, please let me know. I am praying that the Lord will intervene - please pray for us. Thank you so much
(This Grandmother
had raised her two granddaughters after their parents, (her daughter) had gotten involved in drugs. She said that one of the granddaughters - the mother of the babies - was such a nice girl with a very tender heart before she got involved with drugs and the father of the childrern. The Grandmother had raised them as Christians. She thinks her granddaughter has now, in jail, truly given her heart back to the Lord. But it is too late for her to get the children back, as she will be in jail for another year, and then would have to show sobriety and stability for a good period of time outside of jail. The little girls can't wait that long for a stable home. So the family in Washington State supports the current two foster homes, which they like very much, in adopting them. They have no money for an attorney, though. So they really needed prayer for help, or a miraculous changing of the tribes mind.)
UPDATE, October 31, 2006
WE WON!!!! We have prevailed over ICWA!! For now at least......
The judge made a point of stating that he was bothered by the time factor. I'm hoping they won't appeal, it would probably look worse for them since they would be older and time was a major factor in his decision. He felt they would all suffer damaged if moved. I'm sure there will be much talk at DSHS as most of the ICWA social workers from that unit were present, they were stunned!! Also the current Case Worker has been moved into a different position starting tomorrow. He will only be working guardianships and will have a different supervisor. I wonder if our complaints to the Umbundsman had anything to do with that.
Relinquishment is scheduled for this Thursday. Hopeful that will go more smoothly than last week when somehow the paperwork was lost.
I'm still having a hard time eating, but I think for the first time in weeks I'll get a good nights sleep. What's next?????????
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December 27, 2005 .......................................................................(4)
We were foster parents to a Native American ...teen mom and her
infant daughter. The paternal grandmother has guardianship of her
daughter and we continue to be respite providers for the Grandma for three days a month. We are loved and known to the four and a half year old as Nana and Papa. The mom is now 21 and has another child who is two months old and in foster care (drug addicted). Mom sees her four and a half year old once maybe twice a year. While in our care, the teen mom dedicated her daughter at church and is happy to know we continue to take her daughter to church. She loves to sing and asks when is church day! We are no longer foster care providers and yet we want to help. Mom and daughter(41/2) spent the night at our house (Dec. 11) and hopefully we can continue to help them see each other more often. Mom says she is too ashamed to even visit her
daughter. This is so heartbreaking for us.
Please pray for courage for the mom and wisdom to know whether to intervene and offer to raise this child. The chances are quite slim because we are not Native American. More importantly, we want to be in God's will in this matter. Can you please pray for us. Thank you.
UPDATE January 31, 2006
I wrote asking for prayer for former foster daughter's child in
foster care ..
The case worker and I have been talking. We are getting re-licensed in ... hopes of a guardianship. Please continue praying that God opens
the door for this little one to be placed in our home. The mom is truly
our daughter and we are assuring her God is at work to help her. Please pray that she can be restored to God and walk in victory. Her first daughter (41/2) lives with her paternal grandmother and she stays with us for 3-4 days a month. She knows her mommy and daddy love her and she loves to go to church and praise (sings beautifully) God with us in big church before going to her Sunday school class. I know God has placed us in this family's life to show His goodness and faithfulness. Please continue to pray that God will continue to heal the infant of drug effects and restore the mom to God and then to her children. Thank you!
IPDATE June 9, 2006
Thank you for writing back. (Baby M) has been with us for 5 weeks and she is
doing wonderfullly. She is such a blessing to us. She is always
smiling and happy. She is doing very well. She goes to Physical Therapy to
help her with her motor skills. She is almost 8 months old and she is
thriving in our home. At the request of her mom, we dedicated (Baby M) at
church and we know she will grow to know and love God! Her sister is proud
to be a big sister and we call her every week to visit. We will attend
... first Ballet recital at the end of June. My prayer now is for their
mom. As a result of alot of prayer, I called Teen Callenge in Seattle and
they sent me an information packet about their services. Can you continue
to lift mom ...up? My prayer is that God will corner her and use this
inpatient rehabilation program to heal and restore her. I am so excited to
see God work in (her) life. Thank you for praying for strength for our
family and wisdom when we approach (Mom) with this information. God bless
you. ...
Praise God Again!!
UPDATE Aug. 28, 2006
Hi Lisa!! It has been awhile since we talked.... Alot has
happened!! We got the okay from the caseworker ... to go ahead with
the adoption! It will be awhile. In the summer, we usually get ... for 4-5 days and this year on M....'s 9 month birthday, her mommy got to spend the 4 days with both her daughters!! We have great pictures!!! It was truly a blessing to have (her) girls together with their mommy!! It was a great reunion and it was a great visit. It was like having an out of town family member visit!! When we took (her) home, the girls got to see their Grandma and we have pictures of them together! That visit was necessary to us for many reasons. .... Even though she asked us to raise her, we needed this time with her to ask again if she was interested is services and she humbly admitted she couldn't even
take care of herself.
My heart hurt but I know and became more persistant in my prayers for God to open the doors for a Christ centered rehabilitation program/discipleship program and God answered!!! Teen Challenge sent information and I am praying for that to happen!! ... Please continue keeping all three girls in your prayers.
She is also 3 months pregnant. Please pray for wisdom /health concerning this pregnancy. M.... can roll over and move around. She is healthy and a blessing to all of us. Thank you for being there to encourage us!! God bless you and keep in touch..
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September 19, 2005 .............................................................(3)
I am the potential identified adoptive mother of two children who were just made tribal members after they have been in the foster system for over a year. The tribe that recently took them on will not let us adopt. Our kids have been severely abused. Our daughter, who just turned four, tells me all the time that she never wants to leave us. Our son, who just turned two, doesn't know any other mother. I'm terrified and don't know where to turn for representation. I live in California can you refer me to someone? I have filed de facto parent and that should be heard soon. There is so much to this story. I would appreciate anything at all.
UPDATE September 23, 2005
....Then you know about the appellate court's decision that was just handed down on July 20th that gives California*Judges the power to terminate parental rights of Indian Children? Let me know, if not, I can send you the info. I forwarded that to CPS attorney and he is using it in court now.
*(Note: This ruling is actually good News for all Public law 280 States, including the Mandatory States (Alaska, California, Minnesota, Oregon, Nebraska and Wisconsin) and Non-Mandatory States (Washington and Idaho). This ruling gives those States jurisdiction over children who not living on the reservation.
UPDATE June 27, 2006
Lisa, We are still going through this stuff. We have the kids and they have given us guardianship but even that is not a done deal yet. Yes, please pray. I was thinking about your organization just a couple days ago. You must've heard me and my thoughts! Thanks for checking in. Blessings! ... PS Are you aware of any activists/lobbyist regarding ICWA and possible changes in the law? Some things just need to be changed or defined. I am sure ICWA has its place but some parts are too vague. Like timelines.
UPDATE July 12, 2006
Our children are moving. The transition will began at the end of the month. Please continue to pray as I don't know how I am going to get hrough this. They will have been here 20 months. 20 months of being their mother. I want to help advocate for change. Guidance?
UPDATE October 3, 2006
Good Morning Lisa, We still have them. Twenty-two months today. There is court again today. The tribe offered guardianship and we are going to take it however, they aren't the only ones who have to agree. This is amazing to me the things that go on. Things that they want you to pretend didn't happen. Thanks for checking in. I appreciate your prayers.
UPDATE October 4, 2006
We are now the guardians. Thank you for you prayers. I know they did the trick because the day before court I received phone calls from both sides saying that it wasn't resolved and would be continued. Everyone was surprised with the outcome. Thank you so much.
UPDATE September 27, 2007
We have court again, today. I chose to stay home. We still have the kids, we expect no changes to occur today. The tribe now pretty much leaves us be unless we do something they don't like. So, we've found a great therapist at Indian Health and she .... backs everything we tell her and what she sees for herself! Can't wait to hear about your trip!
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September 9, 2005 .......................................................................(2)
I have a daughter that was married to an enrolled Chippewa Indian. She is part indian but not enough to be enrolled. When she was pregnant, he left her and signed off to give her 100% physical and 50% legal custody. He is now throwing the Indian Welfare Act back at her telling her that he can take her to court and probably take the child. Is this how the welfare act works if she is a very competent mother?? We are not sure how far we have to go with this and if we should be worried.......... Please give me a little advise?
UPDATE August 1, 2006
Things have cooled down a lot and everything is OK. Custody is being shared with my daughter being the primary parent. They have learned to work together. Thanks for the concern and prayers.
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July 22, 2005.................................................................................... (1)
Hello,
We were in the process of adopting a little girl, when we found out that she had Native American heritage and the Grandparents suddenly decided they wanted to have her (last February). The courts ruled that since she couldn't be registered as part of (her) tribe (Mom wasn't registered even though Grandmother was). So we thought we were free and clear, because at this point, the State social workers thinks the best thing would be for (her) to stay with us (she has been with us almost 2 years now). Out of the blue, they indicated that the LICWAC (Local Indian Child Welfare Act Committee) recommended that she be provided to her Grandparents within 9 months. Note: They have known her since the beginning and didn't express interest until asked again in Feb. They have only seen her once despite our offers to bring her over, etc. Pretty sad.
Nobody seems to be able to tell us if LICWAC have the final say (I don't think they do) or how this works or how much hope we have. Also, we were going through a Foster-Adopt program (through New Hope - Christian organization) and we were wondering if we had any rights as Foster Adopt program. Should we be trying to get a lawyer?
I was wondering if you could provide any guidance on this. I realize you aren't lawyer's, but just wanted to get a sense of our possible rights. Also, if you could point us in the direction of a good lawyer that would be familiar with these issues. Note; We attempted to contact a lawyer and they didn't know anything. They said they would look some things up, but they never got back to us.
...Prayers would also be appreciated! Thanks Very Much and God Bless!
UPDATE September 8, 2005
God is really amazing. We have been praying and having everyone pray for us and then a couple weeks ago, the Grandparents decided that they didn't have the energy to take care of another little girl (even though they had been adamant for so long). The tribe agreed that she should remain with us. It is looking really good that our adoption will be finalized within the next 2 or 3 months. Sorry that I didn't get back to you with this information sooner. Thanks Very Much For Your Support. I will continue to pray for the ICWA situation.
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Jewish relative keeps custody of Indian kids
Friday, July 26, 2002
By PAUL SHUKOVSKY
SEATTLE POST-INTELLIGENCER REPORTER
The state Supreme Court ruled yesterday that a Jewish grandmother will be allowed to continue raising her Native American grandchildren in her Tacoma home despite assertions from the mother that the children should be with her.
In a legal battle that balanced cultural protections for Indian families and tribes with the best interests of the children, the court ruled that transferring custody to the mother "would likely result in serious emotional and potentially physical damage to the children."
In 1992, Rebecca Johnston, an Alaskan Indian, and her boyfriend, Mark Mahaney, were living in Anchorage and both were struggling with the ravages of alcohol abuse, according to court documents. That March, they sent their two toddlers to live with their grandmother Erika Mahaney, also of Anchorage. The next year, they gave temporary legal custody to the grandmother, who moved with the youngsters to Tacoma.
The girl, now about 14, and the boy, about 12, have been living with their grandmother ever since and have been raised Jewish, attending Hebrew school and taking Yiddish lessons. The girl, according to court records, describes herself as being Jewish.
Over the years, Rebecca Johnston has made several attempts to regain custody of her children, asserting that she can give them a stable home environment.
An attempt to regain custody in 1994 failed when Erika Mahaney obtained, in Pierce County Superior Court, a temporary non-parental custody order.
Erika Mahaney told the court that the children suffered from "the effects of sexual abuse, domestic violence, general neglect and abandonment" while under their mother's care.
Johnston denied allegations that she used illegal drugs, and accusations from the girl that she sexually abused her. Johnston admits that she saw her younger brother sexually molest both children. In addition, she spent time behind bars after convictions for driving while intoxicated.
The children have been diagnosed with fetal alcohol syndrome, attention deficit-hyperactivity disorder, post-traumatic stress disorder and other behavioral disorders associated with sexual abuse.
The court ordered that it was in the best interest of the children for the grandmother to retain custody.
Johnston brought her custody battle to the state Court of Appeals in 1999, asserting that under the federal Indian Child Welfare Act, the Superior Court had not evaluated the evidence against her using the "clear and convincing standard" listed in federal Bureau of Indian Affairs guidelines.
And she said that under the law, an expert versed in Indian culture should have been involved in evaluating the evidence against her.
The Indian Child Welfare Act was enacted in 1978 "to promote the security and stability of Indian tribes" while protecting the best interests of Indian children. The law gives a clear preference for keeping Indian children with their families and placing Indian children who must be removed from their homes within their own families or Indian tribes.
The appellate court agreed with the mother and overturned the trial court ruling. The grandmother then brought the case to the Supreme Court.
Yesterday, the Supreme Court handed Mahaney a victory by overturning the court of appeals ruling.
Saying that the guidelines of evaluating the evidence by a clear and convincing standard do not have the effect of law, the court held that the Indian Child Welfare Act does not replace the mandate of Washington state law requiring that the best interests of the child be paramount.
"Even where there is no showing of present parental unfitness ... the court may take into consideration emotional and psychological damage from prior unfitness. Moreover, in the case before us, the court is entitled to examine the lack of a bond to the parent and the presence of a bond to the children's grandmother, who has been their parent figure for most of their lives."
The court also noted that under the Indian Child Welfare Act, placement with a grandmother, even a non-Indian, is contemplated as appropriate.
The justices quoted the trial lawyer who said that "transferring custody to (the mother) would likely result in serious emotional and potentially physical damage to the children."
The high court also held that there is no need for an expert witness to have special knowledge of Indian life if the testimony does not inject cultural bias or subjectivity into the proceedings.
© 1998-2002 Seattle Post-Intelligencer
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