Court Grants Waiver to ICWA and Allows Navajo Child to be Adopted by NonIndians

“A Navajo child can remain with his non-American Indian caretakers, despite a federal law that gives preference to placement with tribal members, the state Court of Appeals has ruled.

The ruling upheld a juvenile court decision that found good cause to deviate from the Indian Child Welfare Act. The child identified as “Z” in court documents was a month old when relatives of the man believed to be his father began caring for him.

The appellate court said Tuesday that he would suffer severe distress if removed from his current setting. The family has been certified to adopt him and pledged to expose him to Navajo culture with the help of his biological relatives, the court wrote in a unanimous ruling.

The Navajo Nation, while conceding that “Z” was in a healthy, loving home, said that tribal culture must be learned in a Navajo home through daily ceremonies and by being surrounded by the language. Tribal Department of Justice officials, who did not immediately respond to requests for comment Wednesday, also had argued that the boy’s bond with the family was not sufficient to constitute good cause.

The court rejected arguments by the Navajo Nation that the Arizona Department of Economic Security failed to search for a suitable American Indian family for the child.

Congress passed the Indian Child Welfare Act in 1978 because of the once high number of Indian children being removed from their homes by public and private agencies. It gives the child’s tribe and family the right to have a say in decisions affecting the child.

The outcome in court cases isn’t always the same.

Earlier this month, the South Carolina Supreme Court denied a request from a couple to reconsider its decision to send a now 2-year-old girl they adopted back to her biological father in Oklahoma. The court ruled that the adoptive family likely bonded in their time together but that federal law gives custodial preference to the girl’s father, who is a member of the Cherokee Nation.

The caretakers in the Navajo boy’s case took him from his mother and their male relative, who later was determined not to be the boy’s father. The caretakers alleged in a private dependency petition that the child was living in a drug house infested with cockroaches and had not seen a doctor or been bathed since birth.

The juvenile court later granted a request from the state Department of Economic Security to sever the parental rights of the mother, who is Navajo, and the unknown father.

The Navajo Nation was notified in September 2010 that the boy’s case could be guided by the Indian Child Welfare Act. However, the tribe did not notify the court of a suitable placement until nine months later, citing heavy caseloads of tribal social workers and an inability to find the mother.

The sister of the boy’s maternal grandmother said she would rather have him placed with her, but she also would expose him to Navajo culture if he remained with his current family. He is now 2. ”

 

Court OKs placement of Navajo boy with non-Indians

[Sacramento Bee 8/29/12 by Felicia Fonseca/Associated Press]

REFORM Puzzle Piece

 The “private dependency petition” was used in this case. Why would these nonrelatives try to play CPS and take a child out of his home? Why wasn’t the police or tribal or Arizona CPS called? Why was the Great Aunt’s ability to raise him dismissed? She is good enough to give the child the Navajo culture, but not good enough to raise him? Again, the court rules on the “possession” angle-the PAPs possessed him for a certain amount of time so they think that the child would be irreparably harmed to be returned to extended family.