Lexi’s Outcome Apart from the ICWA, Part 1: Relative Placement and a Child’s Best Interest

Is the ICWA a red herring in Lexi’s case?

Those who support Lexi’s transfer to Utah say so. They assert that if the ICWA were not involved, Lexi’s outcome would still be the same.

Naturally they would claim this.

If the statement is true, then that significantly legitimizes the trial court’s decisions. However, if the statement is false, then we are faced with a dilemma. That is, some children are receiving different outcomes than others in this country based on their Native American affiliation.

Leslie Heimov, the Director of the Children’s Law Center of California made this argument when she said, “setting ICWA aside, this child has a family and sibling that she should be placed with, which is also the preference under California state law.”

Mark Fiddler, whom many recognize as the top ICWA attorney in the U.S. and founder of the Indian Child Welfare Law Center, believes otherwise. He stated in an interview with KPCC, “This is something that would not have happened to any other child. In any other court proceeding, a child would have the right to have the court determine what’s in his or her best interest in terms of who can adopt.”

Let’s put these two statements into perspective. Heimov is essentially claiming that the best interest of a child is to be placed with relatives. Fiddler is implying that a child’s best interest doesn’t necessarily warrant placement with a relative, but rather there is more flexibility in making that determination.

Which statement more accurately represents the outcome of children outside of the ICWA’s placement preference?

In these posts, we will explore where the State of California has historically fallen when addressing this question. It will take time to flesh out these details, as there is a lot of ground to cover. But as we progress, it will be quite clear that Lexi’s future would look very different if the ICWA hadn’t become a part of her life.

Before I commence, it is worth pausing for a moment to highlight one very significant fact in this case. It is an event that happened very early on in the proceedings and may be the one factor that most significantly contributed to the present situation. That is, Lexi’s paternal grandmother contacted the Department to notify them of the father’s tribal membership. This occurred after the father had already denied any Indian heritage.

Why do you suppose she did that?

If the ICWA is a red herring in this case, then couldn’t the Utah family have simply presented themselves as “relatives” and been selected for the placement of Lexi?

One can only speculate why they didn’t. Perhaps they knew that as step-second cousins, they wouldn’t have been regarded as “relatives” according to the law. Alternatively, maybe they realized that even if they did qualify as relatives, their lack of an existing relationship with Lexi didn’t position them very well for selection. Whatever the reason, they apparently felt that the ICWA afforded them some privileges that they lacked otherwise, or they wouldn’t have inserted it into this case.

With that in mind, we will begin to explore some key observations about how California has handled cases like this, with the hope of shedding some light on why the ICWA did need to be utilized to obtain the current outcome.

  1. There is no inherent correlation between a child’s best interest and placement with a relative.

In re Stephanie M was a very interesting case that significantly relates to Lexi’s situation. Basically, the juvenile court had ruled in favor of a foster family over a biological grandmother that was requesting placement of the child. Their reasoning was that although the grandmother received relative placement preference under Wic Sec 361.3, it was against the best interest of the child to remove her from the foster family due to the child’s emotional needs and strong bond which she had with them. However, the biological parents appealed and the appellate court eventually reversed the juvenile court’s ruling, stating that they didn’t give sufficient weight to the relative placement preference under the law.

Now this is where supporters of Lexi’s transfer to Utah base many of their arguments, so let me explain a little further.

California has a relative placement preference. In dependency proceedings where a child is removed from parental custody, the law requires a diligent search for relatives to be conducted. Any relatives that come forward and express interest must be considered for placement of the child. If you look close at Wic Sec 361.3, only certain relatives are given “preferential consideration for the placement of the child.” That is grandparents, aunts, uncles, and siblings. So to look at Lexi’s case, supposing the Rs in Utah actually qualified as relatives, the law only required them to be contacted and considered, but it doesn’t entitle them to “preferential consideration” nor does it guarantee the placement.

At any rate, the case eventually went all the way to the California Supreme Court. The Supreme Court ultimately sided with the juvenile court’s original ruling and reversed the decision made by the appellate court, allowing the child to stay with the foster family instead of the biological grandmother. Part of their reasoning was that the relative placement preference “did not supply an evidentiary presumption that placement with a relative is in the child’s best interests”.

Stop for a minute.

Supporters of Lexi’s transfer to Utah continuously assert that placement with family is always in a child’s best interest. They repeatedly claim that studies prove that children thrive better when placed with kin. However, did you notice what the court stated here?

Let me paraphrase.

Claiming that relative placement is in the best interest of a child is not an inference that the court is required to draw without rebuttal.

Essentially, there is no underlying assumption that relative placement is in a child’s best interest. All the relative placement preference requires is for relatives to be the first to be assessed and considered for placement, “subject to the juvenile court’s consideration of the suitability of the relative’s home and the best interests of the child”.

In other words, they are making a distinction between relative placement and the best interest of a child. They aren’t equating the two or even suggesting there is an inherent correlation. When a relative requests placement, the court must “determine” if it’s in the child’s best interest to be placed with the relative, not assume it to be the case unless proven to the contrary.

Now the ruling in this case is all we really need to hear on this point. Because in that case, it was a grandmother who requested the placement who, as I said, qualified for “preferential consideration” under the law. So if the law doesn’t even presume it’s in the child’s best interest to be placed with relatives who DO qualify for “preferential consideration”, then why would it warrant such a conclusion in the Rs case who DON’T qualify for “preferential consideration”, if they even qualify as “relatives” to begin with.

If time allowed, we would look into additional cases. But at the very least, we have established that while placement with relatives is the initially desired scenario, it doesn’t equate with or supersede the child’s best interest. Nor does it even presume the best interest of the child is to be placed with a relative.

Join us next time as we dive a little deeper into the relative placement preference, why it is so important and what it achieves. We will also consider how well the Utah family would have matched up to its primary considerations.