Native American Foster Children Suffer Under a Law Originally Meant to Help Them

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“C’mon, Jennifer,” the caseworker begged. “It’s a brand-new baby.”

There was some uncertainty, she says, among Salt River Pima-Maricopa Indian Community authorities about whether James even qualified for enrollment in the tribe, which is a requirement for the Indian Child Welfare Act to go into effect. James’ father was Hispanic. His mother’s heritage was unclear. Her mother (James’ grandmother) was half Salt River Pima-Maricopa Indian, but her father wasn’t named on her birth certificate.

The 20 federally recognized tribes in Arizona are sovereign governments, so they each have different methods of determining membership. The Salt River Pima-Maricopa Indian Community requires a child be a direct descendent of an original tribe member with at least one-fourth Native blood. In James’ case, that meant his grandfather needed to be at least half Salt River Indian.

Even if the Indian Child Welfare Act applied to James, though, the caseworker assured Jennifer, she had already identified an aunt and uncle who were willing to take the boy. She just needed to conduct a background check to ensure he was heading to a safe environment. Jennifer would only need to keep him a few weeks. 

Jennifer, still harboring idealistic dreams of co-parenting, asked to meet James’ biological mother when she picked up the baby from Mesa’s Banner Desert Medical Center. But the mother refused. Jennifer found him curled up in a clear plastic bassinet in the back corner of the hospital’s nursery. 

James weighed 8 pounds, 8 ounces. His hair was thick and dark. He was so chubby, she joked, he looked like a “little sumo wrestler.” His mother, 19, had used methamphetamine throughout her pregnancy, so James was born addicted. As he detoxed, he cried excessively, his little body shaking. His legs stuck out tight and stiff. A brain scan revealed parts of his brain hadn’t developed properly, putting him at risk for developing a seizure disorder or cerebral palsy. 

By August 2011, DCS had informed Jennifer that James’ aunt and uncle had failed the background check and weren’t eligible to take him in. The uncle had been convicted of aggravated assault with a deadly weapon. The aunt had been caught driving drunk so many times she had to have an ignition interlock device installed on her car.

By October, James’ mother had dropped out of her substance abuse classes and was only showing up to her scheduled visits with the baby once a month. By December, she’d stopped coming at all.

In January, DCS asked Jennifer if she would consider adoption. This time, there was no hesitation. She had fallen in love. She started the process of becoming certified to adopt, and chose a new name for James: Benjamin Philip.

On his first birthday, they sang “Happy Birthday, dear Be-en” as the toddler, sporting a bib with a polka-dot “1” on the front, shoveled cake into his mouth fist over fist, covering himself in blue and green frosting. Her friends showered him with gifts: clothing to grow into, building blocks, a plastic car he could sit on and scoot around with his feet.

A week later, she headed to court expecting the judge to change James’ case plan from reunification to severance and adoption. Instead, she learned the tribe had established paternity for James’ mother and determined her children were eligible for enrollment. They were going to take jurisdiction of the case. 

Jennifer felt nauseated all through the proceedings but managed to hold it together until she got in her car. Then she burst into tears. 

She called in sick to work and cried all the way to the day care center to pick up James. She didn’t know how long she’d get to keep him. She didn’t want to waste a minute. 

“I walked in thinking, ‘This could be one of the best days of my life,’” she said. “I walked out knowing it was the start of the worst time of my life. It felt so unfair. I had cared for the baby for almost two years, and now, all of a sudden, because of the color of my skin, I couldn’t keep him.”

The bond between child and caregiver, vital to a child’s emotional and social development, is often the strongest argument for adoption in a traditional child-welfare case.

The Indian Child Welfare Act, however, requires that the court “must always” attempt to place a Native American child with a member of his or her tribe unless it can produce clear evidence that there is “good cause” to do otherwise. The federal Bureau of Indian Affairs, in its 2015 guidelines, specifically instructs the court that “ordinary bonding or attachment that may have occurred as a result of a placement” or the fact that the child has been with a foster family for an “extended period of time” does not constitute good cause. 

“The good-cause determination does not include independent consideration of the best interest of the Indian child,” the guidelines state. The Indian Child Welfare Act’s placement preferences reflect the tribe’s best interest, which is, by extension, the child’s best interest.

Steve and Kelly, one of several lead plaintiffs in the Goldwater Institute’s lawsuit, took in Christopher when he was less than a year old, tiny teeth rotted from too much Kool-Aid, face blackened with dirt, drowning in a dingy superhero T-shirt that was three sizes too big (names have been changed). Both are over 50, with silver streaks in their hair, and have a 13-acre organic farm where they raise chickens and grow carrots, lettuce, pumpkins, and other vegetables in northern Arizona. 

They cuddled Christopher, who is one-quarter Navajo, through months of severe anxiety attacks until he was secure in knowing his new Mommy and Daddy, as he grew to call them, would be there for him in a way his birth mother had not been. He was a “good soul,” Kelly says, and after caring for him for six months, they inquired about adoption. 

Christopher’s mother publicly gave her blessing to Kelly and Steve to adopt the child. The social worker, however, informed the couple they would “never” get him and “should not have become attached.”

For the next four years, according to court records, the Navajo Nation searched for another family to adopt Christopher. While Steve and Kelly carted the growing boy back and forth to preschool and devised sneaky ways to get him to take his favorite Captain America costume off long enough so they could wash it, the tribe trotted out five different candidates. Some had criminal histories and didn’t pass the background check. Others didn’t want the child. Kelly flinched every time the phone rang, certain the authorities were coming to take Christopher away. 

“We were all he had,” Steve says. 

The Goldwater Institute argues that overlooking attachment is wrong. “We want these children’s cases to be evaluated under the same standards as other non-Native American children,” Dynar says. “They shouldn’t be punished because of the content of their blood.” 

The Indian Child Welfare Act’s supporters acknowledge that it can be traumatic for a child to be torn from a foster parent they’ve grown to love, but contend that it is possible to mitigate.

Foster care, by definition, is temporary, says Sarah Kastelic, executive director of the National Indian Child Welfare Association, a nonprofit that provides legal resources to tribal members. Foster parents should “know what they are signing up for.”

“It’s important not to put too much weight on one moment in time,” she says. “A child who has bonded in a healthy way to one adult has the capacity to bond with additional adults.”

What Dynar dismisses as blood, Kastelic champions as a rich, dwindling culture that warrants protection. Children need to learn about tribal customs and how to speak their forefathers’ language, she says. But culture is more than just food and dress and folk dances; it’s a value set, a paradigm for constructing meaning in life. 

Kelly and Steve tried, clumsily, to help Christopher connect with his roots. Kelly obtained some Navajo-language children’s books, hoping to teach him some simple words, such as the names of animals. She stumbled over the pronunciation, though, and soon gave up.

They wanted to take him to see some Navajo dancing, but they couldn’t find any. They took him to events put on by the Yavapai-Apache Nation instead.

Children with a strong sense of culture have fewer substance-abuse problems, lower suicide rates, and better success in school, Washburn says. When they are removed from that, he says he’s observed, many Native American children who have been adopted into Caucasian families “become lost souls.”

“Sometimes, as adults, they get reunited with their birth family or relatives, but it is too late,” he says. “There is a hole in their hearts that can never be filled.” 

James’ case was transferred to tribal court in August 2012. Jennifer treated every weekend like it was the last, taking James to the children’s museum, the zoo, and Sesame Street Live

A few months later, Jennifer learned, the courts had granted custody to James’ aunt and uncle — the same aunt and uncle the state had previously deemed unfit. 

She packed up all his favorite toys and typed up a two-page letter to his new family. He needs asthma medication, she wrote tearfully. When he says “Elmo,” that means he wants to watch television. When he’s upset, his favorite blanket will calm him down. 

After the caseworker took him away, she and her parents went to the casino and drank all day. The next day she didn’t get out of bed. Life was a fog until March. She had no appetite; she lost 30 pounds. 

She watched him grow up on Facebook. 

At one point, she saw, he was reunited with his mother. 

Jennifer e-mailed her to tell him she had baby photos and James’ medical records: Did anybody want them? His mother replied: Please don’t contact us anymore.

Within months, James was back in the foster-care system, never spending more than a year in each place. His biological parents moved to Mexico without him.

Jennifer, determined not to give up on him, tracked down his caseworker using her connections at DCS and asked if she could take James back. She was denied. 

On James’ fifth birthday this June, she bought a bouquet of Elmo balloons and released them in the park, watching them disappear into the sky one by one, mourning his loss. 

“I know he’s out there, but I’m not allowed to contact him,” she says. “I worry all the time: Is he loved? Is he happy? I’m completely helpless. It’s as if he died — but worse.” 

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Elizabeth Stuart
Contact: Elizabeth Stuart