Monday, June 16, 2008

Native Mothers and Children at Risk with this ruling

Court strikes down portion of child welfare law

By Nick Hytrek Journal staff writer

The Iowa Supreme Court on Friday ruled a portion of the state's Indian Child Welfare Act unconstitutional, saying that it violated parents' substantive due process.

The court said that the state's law infringed upon a Sioux City mother's parental rights to choose her child's adoptive parents. The ruling leaves the bulk of the Iowa ICWA in place, addressing only a section that the court said placed too high a burden on parents wishing to deviate from the law's child placement preferences.

"While providing additional rights to the tribe is the prerogative of the state, those rights may not come at the expense of the parent's or child's rights," the court wrote in its 20-page ruling.

The court returned the case to Woodbury County and directed the district court to consider whether the mother can deviate from placement preferences under federal ICWA placement rules.

The federal Indian Child Welfare Act gives family members and American Indians preferred status in the placement of American Indian children in foster care or adoptive homes. Iowa's ICWA also requires tribes to be notified of all hearings in such cases.

The mother, an enrolled member of the Tyme Maidu Tribe of the Berry Creek Rancheria in California, gave the child up for adoption in 2006 and chose an Arizona couple as the adoptive parents.

The tribe challenged numerous Woodbury County Juvenile Court rulings, saying the court did not follow ICWA requirements during parental rights termination proceedings. The tribe's main argument was that it should have been given notice before custody of the infant was transferred from the mother so that the tribe could assert its right to preferred placement under Iowa law.

Courts in other jurisdictions, the Supreme Court said, have found good cause under federal law to deviate from placement preferences where the parent sought to place her child with a non-American Indian family. Under Iowa's ICWA, a parent's request is not sufficient to deviate from the preferred placements.

"The state has no right to influence her decision by preventing her from choosing a family she feels is best suited to raise her child," the court wrote. (True, but is she really *choosing* or being heavily influenced by the State Child Protective services? I seriously doubt this is a genuine choice here. Let's consider whether after years of Native abuse by whites, this mother decides her child would be better raised by *whites*, is that really a choice? or a choice she will regret in later years? Is a *choice* made under duress a real choice? If the courts really considers the child in this case, retaining contact with his Native Heritage will be of paramount concern. Choice in these types of cases means *you will choose as the State tells you*, which is really no choice at all.)

Attorneys representing the tribe and the mother declined to comment because the case is still pending. The child continues to live with the prospective adoptive parents.

To read the full opinion, go the Iowa Judicial Branch Web site at and click on "Supreme Court Most Recent Opinions."