Lexi’s Outcome Apart from the ICWA, Part 4: The Current Caretaker Preference

Welcome back to our analysis of Lexi’s future apart from the ICWA.

While Lexi’s case is indeed an ICWA case, the extent to which the ICWA has altered her outcome is a very import topic to consider. It determines whether some children in this country are receiving different outcomes than others when placement decisions are made. The U.S. Supreme Court justices expressed concern over this in Adoptive Couple v. Baby Girl. And if Lexi’s case goes to SCOTUS, it will likely be a major part of the discussion. The fact that this is an ICWA case does not make this question irrelevant; it actually enhances it and brings it to the forefront of the conversation.

In the previous post, we discussed that when a parent’s reunification services are terminated, the focus of the case shifts away from reunification, and centers instead on the child’s need for permanence and stability.

This likely left many of you asking the obvious question:

Isn’t that exactly what the court did? Didn’t they establish a permanency plan at the very beginning of this case that involved Lexi being placed in Utah? Once reunification services were terminated, didn’t the court merely execute the plan that was already established from day one?

No. That is not what the court did. This assumption is based on a common misunderstanding about Lexi’s case.

It is the same argument made by Chrissi Nimmo on The Stream when she said, “What is really important in this case is this family placement was identified before the child was ever placed with the Pages.”

In response to that statement, Lori Alvino McGill replied stating, “That’s actually not correct…It’s actually not true that the family was identified to the court. They may have identified themselves earlier on, but the alternative placement was not identified to the court as such until after reunification had failed in 2012.”

McGill’s comment probably sounded trivial to some and confusing to others. It was neither. Let me explain.

The Utah family did identify themselves to the tribe at the beginning of the case. The tribe then recommended the Utah family to the DCFS. But both the tribe and DCFS chose not to disclose the Utah placement to the court and never established a true concurrent plan for the child, including the visitation necessary to familiarize Lexi with her prospective adoptive parents. See Lexi’s Outcome Apart from the ICWA, Part 2: Guidelines for Relative Placement for an explanation of what concurrent planning entails.

For an honest inquirer, the mere fact that an attorney directly involved in the case clarified this detail should be sufficient. But for those that are harder to convince, we can see that the court record actually supports this. At the beginning of the court document, on page 3, it states that “after reunification efforts failed, the father, the tribe, and the Department of Children and Family Services (Department) recommended that the girl be placed in Utah with a non-Indian couple who are extended family of the father.”

When precisely did they make this recommendation? It was “after reunification efforts failed.”

Further, when the Dependency Court issued its decision to place Lexi in Utah, they “admonished both the tribe and the Department for their respective roles in delaying contact between Alexandria and the R.s.”

Why do you suppose the court never identified this problem earlier on, perhaps for example, at the 6-month review hearing? Why did they only identify it at the placement hearing post termination of reunification services?

Quite simply, that is when the court actually became aware that an alternative placement had been found. Once they realized that the tribe and DCFS had always known about this family, the court admonished them for failing to set in motion the steps necessary to facilitate that outcome.

There is really only one line in the court document that seems to suggest otherwise, and it is phrased quite ambiguously. It is a line on page 5 that states “If reunification services were terminated, the tribe recommended placement with the R.s in Utah.” In the context though, that portion of the document is referring to the tribe’s plan for the case, not what they actually communicated to the court. The text doesn’t clarify when they made this recommendation, nor who they made it to. We do know that they communicated the placement to the DCFS, so it is likely in reference to that. In light of McGill’s statement on The Stream, we can assume no more. And if this were not an ICWA case by the way, there wouldn’t have been a tribe to make this recommendation in the first place.

Now you might be asking the question: What is the point?

Well, the fact that the R.s were not identified to the court until after reunification services were terminated is very significant when you consider how a typical dependency case is handled.

In a standard dependency case, once reunification efforts fail, a section 366.26 hearing is scheduled. The purpose of this hearing is to identify a permanent plan for the child. There are three options available at a section 366.26 hearing: adoption, guardianship, and long-term foster care. Adoption is always the first choice at this hearing. In fact, it is required unless the court determines that terminating parental rights would be detrimental to the child. In that event, guardianship or long-term foster care might be selected.

Now the fact that parental rights haven’t been terminated yet in Lexi’s case, leads to all sorts of misunderstandings. First, it leads to the assumption that the parent-child relationship was deemed beneficial to Lexi, and therefore detrimental to terminate. Secondly, it leads to the assumption that Lexi isn’t available to be adopted.

Both of these are misunderstandings.

Under ICWA and California state law, parental rights can’t be terminated until the child is deemed likely to be adopted. It is true that adoption can’t happen until the TPR has been completed. But that doesn’t mean that an adoptive home can’t be selected. Once an adoptive home is confirmed, then parental rights may be terminated, and the child is freed for adoption by the chosen family. The only reason this hasn’t happened yet is simply because the section 366.26 hearing keeps getting continued because Lexi’s adoptive placement is being contested, and the court won’t issue a TPR until an adoptive home is confirmed.

Now that we understand the facts, let’s address the question posed at the beginning of this article regarding the need for permanence and stability. This leads to the next point in our analysis.

3. After reunification services are terminated, the child’s need for permanence and stability presumes that placement with the current caretakers is in the best interest of the child.

You see, California has what is known as a current caretaker preference. It is outlined in Wic Sec 366.26, subdivision (K). It reads as follows:

“Notwithstanding any other law, the application of any person who, as a relative caretaker or foster parent, has cared for a dependent child for whom the court has approved a permanent plan for adoption, or who has been freed for adoption, shall be given preference with respect to that child over all other applications for adoptive placement if the agency making the placement determines that the child has substantial emotional ties to the relative caretaker or foster parent and removal from the relative caretaker or foster parent would be seriously detrimental to the child’s emotional well-being.

As used in this subdivision, “preference” means that the application shall be processed and, if satisfactory, the family study shall be completed before the processing of the application of any other person for the adoptive placement of the child.”

What is important to understand about this statute is that the current caretaker preference is actually treated with even more weight than the relative placement preference. In order to understand what I mean, we need to understand a little more about evidentiary presumptions.

When the court refers to an evidentiary presumption, they are talking about a rebuttable presumption. In other words, the court presumes something to be true that must then be rebutted in order to prove false.

Now if you recall from our first post, case law states that the relative placement preference does not “supply an evidentiary presumption that placement with a relative is in the child’s best interests”. In other words, the court never presumes that simply because someone is a relative, the best interest of the child is to be placed with that relative.

However, the current caretaker preference IS, in fact, an evidentiary presumption.  To see this, let’s circle back to the case we looked at in our previous post, In re Marilyn H. Not only did the court clarify that when reunification services are terminated, the focus shifts to the child’s need for permanence and stability, but they went on to state:

“The presumption that arises after termination of reunification services is a rebuttable one. It is presumed, at that point, that continued care is in the best interest of the child.”

Or perhaps we can put it in the words of In re Stephanie M:

“After the termination of reunification services, the parents’ interest in the care, custody and companionship of the child are no longer paramount… in fact, there is a rebuttable presumption that continued foster care is in the best interests of the child.”

That, my friends, is an evidentiary presumption.

The moment reunification services are terminated, the court presumes that a child’s best interest is to remain with her current caretakers. This is the very reason that their application must be processed before any other person interested in adopting the child.

To better understand this, let’s look at a specific case sharing some similarities to Lexi’s case. That is, In re Lauren R. (2007).

In re Lauren R was a case in which a child was placed with a friend of the biological mother, who then became the child’s de facto parent. A maternal aunt, who had known the child from infancy, eventually came forward seeking to adopt the child.

Based on the court testimony, between the two candidates, Aunt Velda would have made a much better parent. She filed all her paperwork on time. She always followed through and was capable of meeting all of Lauren’s needs. She was a close relative of the child who had known her since birth. She clearly loved Lauren and was dedicated to her. She was also a seasoned parent who had already raised her own daughter through the difficult teen years, which Lauren had not yet entered. Being in Velda’s home also had the added benefit of allowing the child to be in contact with her own blood cousins who were around the same age.

In contrast, Amanda filed her paperwork 8 months late. She allowed the child to rack up 17 tardies in school while under her care. When trying to understand the reason for the late paperwork, the court concluded that it was due to Amanda’s immaturity. “She is still so young. Procrastination and letting things go and not establishing proper priorities, those are the things that many, many young adults do.” Some of her responses exhibited “child-like exaggeration or misrepresentations.”

Yet Lauren was attached to Amanda, and wanted to remain in her care.

The trial court ordered placement with Aunt Velda based on the relative placement preference, but the appellate court subsequently reversed the order stating that the relative placement preference did not apply because (1) no new placement was necessary and (2) it was a placement for adoption.

It is important to note that Velda asked for placement early on in the proceedings and argued that it was unfair for the relative placement preference to be lost with the passage of time. The court responded by stating:

“The overriding concern of dependency proceedings, however, is not the interest of extended family members but the interest of the child. “[R]egardless of the relative placement preference, the fundamental duty of the court is to assure the best interests of the child, whose bond with a foster parent may require that placement with a relative be rejected.”…The passage of time is a significant factor in a child’s life; the longer a successful placement continues, the more important the child’s need for continuity and stability becomes in the evaluation of her best interests.”

The Lauren R. court also addressed another common misunderstanding in Lexi’s case. Aunt Velda, like many of those who support Lexi’s transfer to Utah, argued that “the court does not approve adoption as a permanent plan until parental rights are terminated.” In effect, she offered the same chant that so many of those who support Lexi’s transfer to Utah supply: “THE CHILD IS UNAVAILABLE FOR ADOPTION!”

But the court responded by stating that “the circumstance that triggers the application of the caretaker preference is the intent to place the child for adoption, not necessarily the termination of parental rights.” They based this off of the single word “or” in the following line from Wic Sec 366.26, subdivision (K): “for whom the court has approved a permanent plan for adoption, or who has been freed for adoption.” The statute supplies two disjunctive conditions under which the caretaker preference applies.

In other words, although a court can’t order a child to be placed for adoption until parental rights are terminated, they can still approve a permanent plan for adoption and select an adoptive home. In that event, under standard dependency law, the current caretaker preference still applies.

Now there are obvious differences between Lauren’s case and Lexi’s.

Unlike Lexi’s case, the relative had known the child from birth. Unlike Lexi’s case, the relative qualified for “preferential consideration.” Unlike Lexi’s case, the relative was identified to the court prior to termination of reunification services. Unlike Lexi’s case, the relative visited the child during reunification services. Unlike Lexi’s case, the de facto parent was irresponsible, allowed the child to be neglectful in school, and procrastinated in filing important paperwork in the case.

Yet despite all of these facts, the court gave preference to the foster parent and considered Lauren’s bond with her an important factor when determining the child’s best interest, which is the very reason why the caretaker preference exists.

Now that we understand the current caretaker preference, we need to circle back and reevaluate Leslie Heimov’s statement we supplied in the very first post. She stated, “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.”

Did Leslie Heimov not know about the current caretaker preference? Did she just get rusty throughout her 20+ years since finishing law school, and forget about it? Not likely.

It seems to me that Leslie Heimov was intentionally trying to manipulate public perception about the case. It was quite clever of her actually. You see, her statement in and of itself, is actually true. Relatives ARE the preferred placement under California State law. Nobody could deny that.

The problem is that the Rs were identified to the court and were chosen as the adoptive placement at a time when the relative placement preference no longer applied. Leslie Heimov was banking on the public either not realizing that there is a caretaker preference or else not understanding that the Pages would have qualified for it under normal circumstances.

She was wrong.