Native Child Custody Battle Has Happy Ending

.jpg photo of Child being removed from Foster Care back to Family
Lexi To Stay With Utah Relatives

Lexi To Stay With Utah Family

Choctaw child will be placed with relatives

THE 6-year-old Choctaw girl known as “Lexi,” whose custody battle became a cause célèbre earlier this year, will be staying in Utah with her family.

In a scathing 38-page decision issued on July 8, a three-judge panel of the California Second District Court of Appeals ruled against the claims of Lexi’s foster parents, Summer and Russell Page.  The panel
cited the couple’s “self interest,” their pattern of interference with and resistance to Lexi’s visits with her extended family, and their inability to facilitate an ongoing relationship with her siblings.

These factors constituted “substantial evidence” that there was no good cause to depart from the placement preferences of the Indian Child Welfare Act (ICWA), the judges ruled.

Last March, the Los Angeles County Department of Children and Family Services removed Lexi from the Pages’ home in Santa Clarita, California after the couple initially refused to hand her over to social
workers.  With their refusal, they defied a court order that Lexi be placed with family in Utah, which includes two biological sisters.

The transfer, carefully planned for months and intended to proceed smoothly, deteriorated into chaos after protesters and media descended on the house in an effort to prevent it.

The case began in 2010, when Lexi’s father went to jail for selling stolen auto parts, her mother having disappeared shortly after her birth.  After being assigned to several foster homes, the girl was placed with the Pages while her father worked to complete a “reunification plan.”  Authorities told the Pages numerous times that Lexi would eventually be reunified with her father or sent to live with relatives.

Nonetheless, the couple began indicating that they wished to adopt the girl.  As a result, their relationship with Lexi’s father became strained.  The Pages were “interfering” with his visitations and
attempting to dictate the terms and length of his visits, Lexi’s father told ICTMN.

According to court documents, the increasingly despondent father—who has a criminal record and history of drug use—decided to cease reunification efforts with Lexi after 18 months of failed attempts.  He asked that she be placed with relatives in Utah.  The Choctaw Nation of Oklahoma, the child’s attorney and the child’s guardian ad litem supported the move.

Thus began a five-year legal battle by the Pages to retain custody of Lexi.  Heading their legal team was Lori Alvino McGill, a Washington, D.C.-based attorney who represented birth mother Christy Maldonado as a pro bono spokesperson during Adoptive Couple v. Baby Girl.  The 2013 case involved a Cherokee Nation tribal member losing custody of his daughter after a legal battle that went to the
Supreme Court.

McGill, who represented the Pages as a pro hac vice counsel in California, has tried unsuccessfully to overturn the ICWA in various jurisdictions across the country, including Virginia and South Carolina.

Addressing the primary issue―whether the Pages could show “good cause” to depart from ICWA’s placement preferences―Justice Sandy R. Kriegler wrote for the majority in the July 8 decision that the determination should not “devolve into a standardless, free-ranging best interests inquiry.”  Kriegler noted that Lexi’s lengthy stay with her foster parents was borne solely out of ongoing litigation.

“The United States Supreme Court has cautioned that courts should not ‘reward those who obtain custody, whether lawfully or otherwise, and maintain it during any ensuing (and protracted)
litigation,’” the panel concluded.

Morever, “A holding that the facts before us constituted good cause as a matter of law would circumvent the policies favoring relatives and siblings, and it would incentivize families who knowingly accept temporary foster placements to delay an Indian child’s ultimate adoptive placement in the hope that as time passes, the family will reach a ‘safe zone’ where harm to a child from disrupting his or her
primary attachment is presumed as a matter of law.  It is unwise and unnecessary to stretch the bounds of California law in that manner.”

In dismissing the Pages’ legal arguments, the California court took the couple to task on several points.  They criticized the Pages for being unwilling and unable to provide Lexi with a continuing relationship with her Utah family;  for insisting that they monitor visitations;  and for demanding that individual therapy sessions meant for Lexi should include the entire Page family.

Regarding Lexi’s cultural ties, the justices also pointed out that the Pages were reluctant to engage in any of the suggested activities and had made only half-hearted attempts at incorporating Native
American heritage into their lives.  Summer Page, they specifically noted, had testified that a dreamcatcher made by Lexi had “ended up in the trash.”

The Pages pointed out that they had joined the Autry Museum and had painted a wall in their kitchen “Navajo Blue.”  In the end, however, the panel wholly rejected the Pages’ argument that their efforts represented Lexi’s best interest.

“The Pages also do not—and in our view cannot—provide an adequate response to an issue raised most effectively by minor’s appellate counsel.  Even though they appear before the court by virtue of their status as de facto parents, the Page’s efforts to show good cause are motivated by their own interests,” wrote Kriegler.

“Minor’s counsel, not the Pages, has a legal and ethical obligation to represent Alexandria’s interests.  The Pages lack the right to assert Alexandria’s interests because Alexandria has her own counsel, who
represents her interests and also acts as her guardian ad litem.”

After the decision, Lexi’s Utah family issued the following statement:

“We respect the unanimous decision by the court of appeal justices. All who have been appointed to seek Lexi’s best interests—her court-appointed attorneys, guardian ad litem, social worker, the
Department of Children and Family Services, and the dependency court judges—have unanimously echoed that Lexi should be raised by her family.

“More than simply sharing a familial relation with us, Lexi has been a real part of our family since the moment her grandmother—our aunt—expressed her desire that we bring Lexi into our home. The
determination we felt since then, when Lexi had just been placed in her first foster home, has provided vital strength for our family as we have waited for the courts to untangle the details.

“We hope the appellate court’s ruling brings closure and finality to everyone involved, and Lexi is at last allowed to live a peaceful childhood in our home.”

The Choctaw Nation of Oklahoma, an active party in the case from the beginning, supported the placement with the Utah relatives.

“The Choctaw Nation is pleased that the California District Court of Appeals has upheld the lower court’s decision to place Lexi with her extended family and sisters in Utah,” the tribe said in a statement. “This has been the tribe’s objective under the Indian Child Welfare Act for more than three years.

“We hope this puts an end to this needless litigation so Lexi can get on with her life.”

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