Lexi’s Outcome Apart from the ICWA, Part 2: Guidelines for Relative Placement

Welcome to the second installment in our analysis of what Lexi’s outcome would have looked like apart from the ICWA.

Last time, we looked at the relative placement preference, and cleared up some common misconceptions. Despite what many believe, there is no underlying assumption that placement with a relative is in a child’s best interest. Rather, relatives are allowed to come forward and they must be assessed and considered for placement, subject to the juvenile court’s decision regarding the child’s best interest.

Nevertheless, there are very legitimate reasons why the relative placement preference exists, especially in the earliest stages of a case. It would be very dishonest to ignore that fact.

Most significantly, it helps to ease the transition for a child. Being removed from one’s parents can be very traumatizing for a young child, even in cases of abuse and neglect. Being transferred to a familiar home with familiar faces in a familiar environment can help reduce that impact. Further, relatives may become the permanent plan if reunification fails. By being placed in their home as early as possible, the added trauma of multiple moves can be reduced. The pain of being separated from caretakers that the child has become attached to (as in Lexi’s case), can be minimized if not avoided. The sooner this happens, the better for a child.

The California Dependency Quick Guide, prepared by the Center for Families, Children, and the Courts of the Judicial Council of California, on the topic of detention with a relative, gives us some clues into why relatives are the preferred placement choice:

“It is critical that the issue of who will serve as the caregiver is addressed as early as possible, and that all efforts are made to place the child with appropriate relatives or NREFMs. Reasons for this include minimization of the trauma of detention by releasing the child to familiar surroundings and people; access to siblings and extended family members, thereby allowing the child to maintain important relationships; consistency in placement and reduction of multiple moves; and, if efforts to reunify ultimately fail, promotion of permanency, given the statutory preferences favoring a permanent plan that allows a child to remain with existing caregivers to whom he or she is attached. (See § 366.26(c)(1)(D) & (k).)”

You see, relatives are sought after not because they are inherently better for a child than non-relatives, nor primarily to protect the interests of the relatives themselves, but ultimately to ease the process for the child. Children need familiarity, stability, and permanence. And more often than not, placement with a relative can provide for those needs more efficiently than a non-relative.

However, to what extent would the Utah family have eased Lexi’s transition in light of those considerations?

  1. Lexi did not know them when they were first identified to the court. Therefore, they wouldn’t have assisted in keeping her around “familiar surroundings and people.”
  2. None of Lexi’s half-sisters were located in Utah at that time. In fact, they were all located in Los Angeles. Therefore, Lexi’s ability to “maintain important relationships” would have been impeded.
  3. They were located in a different state, and weren’t identified to the court until after Lexi was placed with the Pages. Therefore, they wouldn’t have afforded “consistency in placement and reduction of multiple moves.”

It is quite clear that the Rs didn’t add much value to the ultimate goal of easing Lexi’s transition, one of the primary reasons why relative placements are sought after in the first place.

The nature and duration of a child’s existing relationship with the family is an immensely important factor when deciding a placement. In fact, lack of visitation is oftentimes one of the primary reasons why relative placements are denied. Familiarity is so critical that the California Dependency Quick Guide states over and over, almost annoyingly so, the importance of frequent visitation by relatives throughout all phases of the disposition. The goal is to make the child more comfortable with those she may end up being placed with in the end.

“Counsel should encourage appropriate relatives and NREFMs to visit the child as frequently as possible and to use the time from the earliest days of the case to build and strengthen the network of relationships with persons important to the child.”

Now it is worth pausing for a moment to ask the question, “Why didn’t anyone visit Lexi during the reunification process?” Not one relative, not once.

The Choctaw Nation suggested that Lexi’s transfer to Utah will allow her to connect with her “extensive extended family”. It is interesting that for a child with such extensive family, no one came forward but some distant relatives whom she never met, and whose qualification as “relatives” is questionable to begin with. The Choctaw Nation also told the Utah family not to contact Lexi during the reunification process to avoid confusing her. It is confusing that this was confusing. Since the Rs are allegedly so close with the Dad, and since this is best practice in dependency cases anyway, why would it confuse the child?

So how should it have been handled?

Well, the method that is most commonly recognized as the best way to achieve permanency for a child is an approach called “concurrent planning.” Concurrent planning, which is mandatory in the State of California, is the process by which two simultaneous plans are developed for a child, one for reunification with the parent and another intended to provide legal permanence if reunification should fail. The goal is to provide the smoothest and quickest possible route to permanency. Notice the word here is “concurrent”, not “subsequent”. Both plans are to be executed simultaneously, so that regardless of the outcome, the child’s transition is as seamless as possible.

“To be effective, concurrent planning requires not only the identification of an alternative plan but also the implementation of active efforts toward both plans simultaneously, with the full knowledge of all case participants [emphasis added]. This two-pronged approach to finding a safe and stable family for children reduces multiple placements and long delays for children in foster care, and it promotes children building strong connections and trust with permanent families.”
Concurrent Planning – Existing Challenges and New Possibilities, Northern California Training Academy,Reaching Out, Spring/Summer 2009.

This is how a normal dependency case in the State of California would have been handled. But is this how Lexi’s case was handled?

Absolutely not.

The Utah family had no pre-existing relationship with Lexi when they were selected as the placement preference. They never visited Lexi throughout the reunification process. There was no concurrent plan for Lexi to establish permanency with them should reunification fail. In fact, if her expedited placement in November 2012 had gone through, then Lexi would have been transferred from a family she had fully bonded with, having just overcome an attachment disorder, to a family she had only known for one month. This goes flush against the clearly established guidelines for dependency proceedings, and there is absolutely no way it would have happened if the court wasn’t pandering to the ICWA placement preference.

So why were the Rs ultimately chosen in the end? Well, it’s really quite simple. The tribe wanted it this way. And the juvenile court’s agenda is to follow the ICWA’s placement preference, at all costs, no matter the impact it might have on a child.

Join us next time, as we shift gears and start focusing on some other key observations about how the courts have historically determined a child’s placement in cases similar to Lexi’s.