Santos Y – Christian Alliance for Indian Child Welfare

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Cases:
Adoption of Lindsay C. (1991) 229 Cal.App.3d 404, 280 Cal.Rptr. 194
Doe v. Hughes, Thorness, Gantz, et al. (Alaska 1992) 838 P.2d 804
In re Alexandria Y. (1996) 45 Cal.App.4th 1483, 53 Cal.Rptr.2d 679
In re Alicia S. (1998) 65 Cal.App.4th 79, 76 Cal.Rprt.2d 121
In re Baby Girl A. (1991) 230 Cal.App.3d 1611, 282 Cal.Rptr. 105
In re Brandon M. (1997) 54 Cal.App.4th 1387, 63 Cal.Rptr.2d 671
In re Bridget R. (1996) 41 Cal.App.4th 1483, 49 Cal.Rptr.2d 507
In re Charloe (Ore. 1982) 640 P.2d 608
In re Crystal K. (1990) 226 Cal.App.3d 655, 276 Cal.Rptr. 619
In re Crystal R. (1997) 59 Cal.App.4th 703, 69 Cal.Rptr.2d 414.
In re Derek W. (1999) 73 Cal.App4th 828, 86 Cal. Rptr.2d 742.
In re Desiree F. (2000) 83 Cal.App.4th 460, 99 Cal.Rptr.2d 688
In re John V. (1992) 5 Cal.App.4th 1201, 7 Cal.Rptr. 629
In re Jonathan D. (2001) 92 Cal.App.4th 105, 111 Cal.Rptr.2d 628.
In re Julian B. (2000) 82 Cal.App.4th 1337, modified by 83 Cal.App.4th 935A, 99 Cal.Rptr.2d 241
In re Junious M. (1983) 144 Cal.App.3d 786, 193 Cal.Rptr. 40
In re Kahlen W. (1991) 233 Cal.App.3d 1414, 285 Cal.Rptr. 507
In re Krystle D. (1994) 30 Cal.App.4th 1778, 37 Cal.Rptr.2d 132
In re Larissa G. (1996) 43 Cal.App.4th 505, 51 Cal.Rptr.2d 16
In re Laura F. (2000) 83 Cal.App.4th 583, 99 Cal.Rptr.2d 859
In re Letitia V. v. Superior Court (2000) 81 Cal.App.4th 1009, 97 Cal.Rptr.2d 303
In re Levi U. (2000) 78 Cal.App.4th 191, 92 Cal.Rptr.2d 648
In re Marinna J. (2001) 90 Cal.App.4th 731, 109 Cal.Rptr 2d 267
In re Matthew Z. (2000) 80 Cal.App.4th 545, 95 Cal.Rptr.2d 343
In re Michael G. (1998) 63 Cal.App.4th 700, 74 Cal.Rprt.3d 642
In re Pedro N. (1995) 35 Cal.App.4th 183, 41 Cal.Rptr.2d 507
In re Pima County Juvenile Action (Ariz. 1981) 635 P.2d 187
In re Richard S. 54 Cal.3d 857, 2 Cal.Rptr.2d 2
In re Riva M. (1991) 235 Cal.App.3d 403, 286 Cal.Rptr. 592
In re Robert T. (1988) 200 Cal.App.3d 657, 246 Cal.Rptr. 168
In re Santos Y. (2001) 92 Cal.App.4th 1274, 112 Cal.Rptr.2d 692, review denied (Feb. 13, 2002)
In re Wanomi P. (1989) 216 Cal.App.3d 156, 264 Cal.Rptr. 623
In re William G., Jr. (2001) 89 Cal.App.4th 423, 107 Cal.Rptr.2d 436
Mississippi Choctaw Indian Band v. Holyfield (1989) 490 U.S. 30, L.Ed.2d 29
Morton v. Mancari (1974) 417 U.S. 535
Native Village of Venetie I.R.A. Council v. State of Alaska (9th Cir. 1991) 944 F.2d 548
Santa Clara Pueblo v. Martinez (1978) 436 U.S. 49
Slone v. Inyo County (1991) 230 Cal.App.3d 263, 282 Cal.Rptr. 126
State Ex Rel. Juvenile Dept. of Lane County v. Shuey (Ore.1993) 850 P.2d 378

Cases (de-published or partially unpublished on ICWA issue):
In re Adam N. (2000) 101 Cal.Rptr.2d 181
In re Bettye K.(1991) 285 Cal.Rptr. 633
In re Carlos G. (1999) 88 Cal.Rptr.2d 623
In re Jacqueline L. (1995) 39 Cal.Rptr.2d 178
In re Santos Y. (2001) 110 Cal.Rptr.2d 1
In re Se.T. (2002) 115 Cal.Rptr.2d 335

Statutes and Other Authority (Specific to Indians):
Indian Child Welfare Act of 1978, 25 U.S.C. §§1901 et seq.
Indian Child Welfare Act Regulation, 25 C.F.R. Part 23.
Indian Child Welfare Act, Legislative History, H.R. Rep. 95-1386, 95th Cong.2d Sess. 22, 1978 U.S. Code Cong. & Admin. News 7530.

Bureau of Indian Affairs Guidelines for State Courts: Indian Child Custody Proceedings, 44 Fed.Reg. 67584 (Nov. 26, 1979)
California Family Code
Section 7810 [Calif. declaration of policy, existing Indian family doctrine abrogated.]
California Welfare and Institutions Code
Section 305.5 [Transfer to Tribe after reassumption of exclusive jurisdiction.]
Section 360.6 [Calif. declaration of policy, existing Indian family doctrine abrogated.]
Section 11401(e) [AFDC-FC for Indian placements.]
Section 10553.1 [Director’s delegation agreement with Indian Tribe.]

Cal. Rules of Court
Rule 1410 – Persons present.
Rule 1412 (I) – Tribal representatives.
Rule 1439 – Indian Child Welfare Act.
Manual of Policies and Procedures, California Department of Social Services, §31-515 et seq – Indian Child Welfare Act.
Manual of Policies and Procedures, California Department of Social Services, §45-101; §45-202, §45-203. [Implementing section 11401(e).]
SDSS All County Letter No. 89-26, Procedures for Certifying Indian Blood for Children in Adoption Planning.
SDSS All County Letter No. 95-07, AFDC-FC Program Eligible Facility Requirements.
Appeal of William Stanek, 8 Indian L.Rep.5021 (April 1981)(decision of the Commissioner of Indian Affairs.) [p. 3.]
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Protecting children and the families they love…

1. Children of tribal heritage should be guaranteed protection equal to that of any other child in the United States. (ftn4) (ftn5)

a) Children should never be moved suddenly from a home that is safe, loved, and where they are emotionally, socially and physically comfortable simply because their care-givers are not of a certain heritage. The best interest of the child should be considered first, above the needs of the tribal community.
b) State health and welfare requirements for foster and adoptive children should apply equally to all. If there is proven evidence of emotional and/or physical neglect, the state has an obligation to that child’s welfare and should be held accountable if the child is knowingly or by Social Service neglect left in unsafe conditions. (ftn5 – Title 42 U.S.C 1983)

2. Fit parents, no matter their heritage, have the right to choose healthy guardians or adoptive parents for their children without concern for heritage and superseding wishes of tribal government. US Supreme Court decisions upholding family autonomy under 5th and 14th Amendment due process and equal protection include Meyer vs. Nebraska (ftn8), Pierce v. Society of Sisters (ftn9), and Brown v. Board of Education (ftn10).

3. The “Existing Indian Family Doctrine” must be available to families and children that choose not to live within the reservation system.

a) In re Santos Y, (ftn5) the court found “Application of the ICWA to a child whose only connection with an Indian tribe is a one-quarter genetic contribution does not serve the purpose for which the ICWA was enacted…” Santos y quoted from Bridget R.’s due process and equal protection analysis at length. Santos also states, Congress considered amending the ICWA to preclude application of the “existing Indian family
doctrine” but did not do so.”
b) In Bridget R., (ftn6) the court stated, “if the Act applies to children whose families have no significant relationship with Indian tribal culture, such application runs afoul of the Constitution in three ways:

– it impermissibly intrudes upon a power ordinarily reserved to the states,

– it improperly interferes with Indian children’s fundamental due process rights respecting family relationships; and

– on the sole basis of race, it deprives them of equal opportunities to be adopted that are available to non-Indian children and exposes them…to having an existing non-Indian family torn apart through an after the fact assertion of tribal and Indian-parent rights under ICWA”.

c) In re Alexandria Y. (ftn7), the court held that “recognition of the existing Indian family doctrine [was] necessary to avoid serious constitutional flaws in the ICWA” and held that the trial court had acted properly in refusing to apply ICWA “because neither [child] nor [mother] had any significant social, cultural, or political relationship with Indian life; thus, there was no existing Indian family to preserve.” Question: If current ICWA case law includes many situations where existing Family Doctrine has already been ignored, then have serious constitutional flaws already
occurred?

More to come…

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October 30, 2001
– Mr. Sowell is currently a senior fellow at the Hoover Institute in Stanford, California.

In a world where the media are ready to magnify innocuous remarks or a minor problem into a trauma or a disaster, there is remarkably little attention being paid to cruelties routinely inflicted on children by our laws and our courts. That cruelty is ripping children away from the only home they have ever known, to be sent away — often far away — to be raised by strangers.
Such drastic action may be necessary when children have been abused or neglected, but kids have been seized from loving homes where there has never even been an accusation of abuse or neglect. As with so many irrational acts, race and political correctness are involved. One of the children who is currently being threatened with this fate is a little boy in California named Santos, who may be sent off to live on an Indian reservation in Minnesota, among people he has never known, speaking a language he does not understand. Moreover, the single woman who is trying to adopt him there has said that she plans to put him in day care, which he has never been in before. He has been cared for at home by a married couple since he was 3 months old. He will be 3 years old on Nov. 25.

How could such an insane situation have arisen? Easy. It is called the Indian Child Welfare Act. And it began, like so many catastrophes, with good intentions. Back in 1978, Congress passed the Indian Child Welfare Act to prevent Indian children from being removed from their families and tribes by outside know-it-alls and social engineers. So far, so good. But, once a law is on the books, it means whatever the lawyers and the courts say it means. That is how little Santos got trapped in a nightmare.

Santos is part Indian, but neither he nor his biological parents lived on a reservation or among an Indian tribe. When he was born and began suffering withdrawal because of his mother’s cocaine addiction, the authorities took custody of him. He was put into a foster home with a Spanish-speaking couple whom he now regards as his parents and who want to adopt him. Santos’ biological mother has shown very little interest in him — and even that little bit of interest has not been reciprocated by Santos. He has hung up on her when she phoned and cried when she visited. The woman on an Indian reservation did not even know of Santos’ existence until informed by the tribal council, which wants to claim him under the Indian Child Welfare Act. Six months later, she saw the little boy for the first time.

It gets worse. Two psychologists have become involved in the case. Shrink A has “spent approximately 10 minutes alone” with Santos, according to the California Court of Appeal in its ruling this past Oct. 19. She did not interview the couple with whom he has been living all this time, even though a Spanish-speaking social worker was available to enable her to converse with the boy’s foster parents. Nevertheless, Shrink A has decided that Santos would be better off being “moved to be with his tribe and his family” on a reservation in Minnesota. This strained definition of “family” is based on the fact that the woman on the reservation is a distant relative of his mother. Incidentally, Shrink A has never interviewed this distant relative either.

Undaunted, Shrink A has said that Santos would not be “catastrophically damaged” by the change because Santos has not “bonded” with his foster parents, but has “bonded to his birth mother, who is unable to care for him.” This strained definition of bonding is based on counting the time spent in his mother’s womb, as well as the 9 days he spent with her after birth. A second psychologist based his conclusions on what he had actually seen, rather than on such speculations. What he saw was that little Santos clings to his foster mother and became distressed when his foster father was asked to leave the room, crying “papa, papa.” At another time, when Santos was with his foster father and Shrink B wanted to see the little boy alone, Santos became “clingy” with his foster father and “hugged him tightly while exclaiming ‘papa, papa.'” Little Santos has not yet been sent to Minnesota. The appellate court said that the “matter is remanded for further proceedings,” which means a continuing cloud of uncertainty hanging over a little boy who has become a little pawn. How could anyone do this to him? Tragically, it has happened to many others.

– Sowell, Thomas, Routine Cruelty, October 30, 2001. Online document, available from http://www.townhall.com/columnists/thomassowell/ts20011030.shtml Accessed Monday, May 31, 2004. Reprinted with permission.

Update: Santos was legally adopted in 2003 by the foster parents who had cared for him most of his life. Their attorney was Native American.