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Justices asked to revisit Indian family law

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At least one Indiana Court of Appeals judge believes the state’s highest court should revisit how it applies a three-decade old statute to tribal Indian family adoption issues inside Indiana.

Ruling today on the case of In Re The Adoption of D.C. v. J.C. and A.C., No. 49A02-0909-CV-862, the panel unanimously affirmed a Marion County probate judge’s decision to allow a stepfather to adopt an 11-year-old boy who’d lived with him since birth.

The case presented a family law issue about the Indian Child Welfare Act of 1978, 25 U.S.C. § 1901-1963 (1982), which is aimed at protecting the interests of tribal children and promoting stability and security to those tribes and families by minimizing their removal from those environments.

Stepfather J.C. had petitioned Marion Superior Court to adopt D.C., who’d been living with him since birth in 1998 after the mother S.C. had separated from his biological father. Mother and stepfather had custody of the child until the mother’s death in 2005. A few months before that, stepfather had obtained S.C.’s notarized consent to adopt D.C. Stepfather later remarried and his new wife joined the petition, arguing that biological father’s consent wasn’t needed under Indiana state law where they lived because the man hadn’t communicated or provided support significantly through the years.

But biological father contested D.C.’s adoption under ICWA, arguing the law should be applied because he was a member of the Sitka Tribe of Alaska, an older son now living with him had enrolled in that tribe, and D.C. would be eligible for enrollment at some point. Another elder child was originally part of this case, but at age 15 that child went to live with biological father and was removed as part of the petition.

Marion Superior Judge Tanya Walton Pratt found ICWA to be inapplicable because there was no “removal” from custody within an Indian family as contemplated by the law, and that the Indiana Supreme Court has found it applies when a tribal Indian child is being removed from an existing Indian environment.

The Court of Appeals found that it was in the child’s best interests to stay with stepfather in Indiana, since he’d cared for D.C. without interruption for the 11 years before this adoption matter. In addition, the court noted that biological father had not objected to custody and had extremely limited contact while accumulating tens of thousands of dollars in unpaid child support payments. The appellate judges also found biological father’s adoption consent wasn’t required.

Significantly, though, the appellate court declined to accept biological father’s invitation to go against 1988 Indiana Supreme Court precedent in analyzing and evaluating the ICWA application. More than 20 years ago in Matter of Adoption of T.R.M., 525 N.E. 2d 298, 303 (Ind. 1988), Indiana joined other states in how it applies that act to Indian children being removed from their existing environments.

While agreeing with the majority, Judge Michael Barnes wrote a concurring opinion that invited the state’s justices to do exactly that and join more recent national trends in applying the law. In the past decade courts, including those in Kansas and Oklahoma, have overruled the previous ruling that they and Indiana had originally based their applications on.

“In fact, the validity of the existing Indian family doctrine has repeatedly been called into question, and many courts have now abandoned the doctrine,” Judge Barnes wrote. “We do not have the authority to overrule our supreme court, and we must apply the existing Indian family doctrine in this case. However, given the controversy surrounding the existing Indian family doctrine, I encourage our supreme court to revisit its applicability in Indiana.”
 

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  1. My daughters' kids was removed from the home in March 2015, she has been in total compliance with the requirements of cps, she is going to court on the 4th of August. Cps had called the first team meeting last Monday to inform her that she was not in compliance, by not attending home based therapy, which is done normally with the children in the home, and now they are recommending her to have a psych evaluation, and they are also recommending that the children not be returned to the home. This is all bull hockey. In this so called team meeting which I did attend for the best interest of my child and grandbabies, I learned that no matter how much she does that cps is not trying to return the children and the concerns my daughter has is not important to cps, they only told her that she is to do as they say and not to resist or her rights will be terminated. I cant not believe the way Cps treats people knowing if they threaten you with loosing your kids you will do anything to get them back. My daughter is drug free she has never put her hands on any of her children she does not scream at her babies at all, but she is only allowed to see her kids 6 hours a week and someone has to supervise. Lets all tske a stand against the child protection services. THEY CAN NO LONGER TAKE CHILDREN FROM THERE PARENTS.

  2. Planned Parenthood has the government so trained . . .

  3. In a related story, an undercover video team released this footage of the government's search of the Planned Parenthood facilities. https://www.youtube.com/watch?v=ZXVN7QJ8m88

  4. Here is an excellent movie for those wanting some historical context, as well as encouragement to stand against dominant political forces and knaves who carry the staves of governance to enforce said dominance: http://www.copperheadthemovie.com/

  5. Not enough copperheads here to care anymore, is my guess. Otherwise, a totally pointless gesture. ... Oh wait: was this done because somebody want to avoid bad press - or was it that some weak kneed officials cravenly fear "protest" violence by "urban youths.."

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