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March 21, 2016
NICWA Calls for Informed Response to California ICWA Case

We are disturbed by this weekend's flurry of negative media attention regarding the attempted reunification of a child with her family in Utah. In this contentious custody case, there have never been any surprises as far as what the law required. The foster family was well aware years ago this girl is an Indian child, whose case is subject to the requirements of the Indian Child Welfare Act (ICWA)(1), and who has relatives who were willing to raise her if reunification with her father was unsuccessful(2).
In fact, the only surprising turn of events is the lengths the foster family has gone to, under the advice of an attorney with a long history of trying to overturn ICWA, to drag out litigation as long as possible, creating instability for the child in question. That the foster family now argues bonding and attachment should supersede all else despite testimony of those closest to her case(3), seems like a long-term, calculated legal strategy based on the simple fact that the law was always clear(4), they understood it(5), but just chose not to abide by it(6).
The purpose of foster care is to provide temporary care for children while families get services and support to reunite with their children, not to fast-track the creation of new families when there is extended family available who want to care for the child. The temporary nature of these relationships is also the reason we view those who serve as foster parents as selfless and nurturing individuals. Reunification and placement with extended family whenever possible is best practice for all children(7), not just Native American.
We call on the media to provide balanced reporting and to ask vital questions regarding these facts before inflaming the public and subjecting the privacy and future well-being of a little girl to national debate.
1. "On August 30, 2011, the court found that the ICWA applies and the matter was transferred to a specialized department for the ICWA cases..." (Cited here , p. 9.)
2. "At some point after father's reunification efforts failed, the [foster family] decided they wanted to adopt A. They discussed the issue with the Department social worker, who advised them that the tribe had selected the [relative family] as the planned adoptive placement." (Cited here , p. 7.)
3. "A's ability to re-attach to a new caretaker is stronger because of the stability that the [foster family] has provided for her." (Cited here , p. 6) and "Javier did not believe A would suffer any severe trauma because she sees the [relative family] as family and would not feel as if she is being sent to live with strangers." (Cited here , p. 11.)
4. "The Department consistently reminded the [foster family] that A is an Indian child subject to the ICWA placement preferences." (Cited here , p. 7.)
5. "The [foster family was] aware that A was an Indian child and her placement was subject to the ICWA." (Cited here , p. 5.)
6. "The [relative family] first visited A shortly after the court terminated father's reunification services. Since then, they video chat with A about twice a week and have had multiple in-person visits in Los Angeles. The [foster family] refer[s] to the [relative family] as family from Utah...The participants agreed on a transition plan that involved a relatively short transition, with both families meeting for breakfast or at a park, explaining to A that she is going to with the [relative family], who are family who love A very much and will take good care of her. The [foster family] would reassure A that they love her and will always be a part of her family." (Cited here , p. 8.)
7. "The benefits of extended family placements are not limited to biological relatives, but extend to placements within a child's larger community. Child welfare agencies consider "members of [a child's] tribes or clans, godparents, stepparents, or other adults who have a kinship bond with the child" as potential resources for kinship care." (Cited here, pp. 8-10.)