Can Law put baby back with messed up family just because of ICWA?

April 14, 2010

On March 2nd of this year I adopted a newborn baby. His birth mother signed the papers in front of the hospital notary, and I took the baby home. 10 days after he was home, I recieved a phone call from the birthmother stating that her cousin wanted to adopt the baby instead. I immediately went and filed emergency guardianship papers to keep (baby) with me. When we went for our guardianship hearing, Indian Child Welfare was there and told our judge that it was a law that they had to give the baby to the birthmothers cousin because of Indian Child Welfare Act. I am also indian, and had the baby for 32 days. My judge had no idea what the ICWA was, so he just immediately turned the baby over to the cousin. A little bit about the case, the birthmother and the baby both tested positive for drugs, this is the 4th child the birthmother has lost due to drug use and she is only 20 years old. Her cousin who has the baby, has a misdemenor Marijuana charge, a DUI, and No drivers license and has been arrested 2 times this year for driving without a license. Is it fair that this law can put the baby back with the family just because of the ICWA? Please help me in any way! Im so lost and desperate.

Response: I did hear back from the couple in Oklahoma, and here are the comments they had, based on Oklahoma ICWA law – Again, we aren’t attorney’s…an attorney might be able to guide a little better…but…

1) Unfortunately, an Indian mother can’t relinquish her rights ten days before or ten days after the birth.  It’s a racist law, but it’s the current law.
2) The Tribe had to be notified of the Mom giving you custody for the transfer to be legal.
3) A judge would have to terminate both the Mother’s and Father’s rights for an adoption to take place
4) The tribe or DHS were supposed to be notified by the hospital about the drugs in the baby’s system..

I am so sorry, but it seems as though there isn’t anything that can be done – the tribe appears to have all the rights.

Bless you; I pray your loving heart be filled with the Love of a child.
Lisa
Caicw.org

UPDATE April 16, 2010

Just to let you know, DHS was notified of the drugs, and they had to do a background check on me before I could take the baby home. But all the other stuff is true. So thank you so much. I just wish there was something in place, it’s really hard when you have a baby for 32 days, and then him be taken away, but from what im reading, it happens all the time. Thank you so much for getting back with me.

Response: Yes.  I’m so sorry.
That’s why we are trying to fight this law, because it isn’t right, and it does hurt so many people – and so many children.
I understand your concern about the cousin.  I’ve watched so many children be placed in bad homes.  Once, a social worker told me that they would never allow children of another race to be placed or left in the same types of homes that some enrollable children are.

So – in other words, are they saying that the law doesn’t think that enrollable children are entitled to the same protection and stability that other children receive?

It’s criminal that this is happening.  There is no real sense to it.  My children are 50% Indian (my husband was 100%) and they are no different from any other child – no less important and worthy of protection.

So, yes.  I do feel for you and understand your pain.  Very much.  Bless you for loving and caring for Kyler.  I pray that everything you had poured into his heart for that month remains with him forever.  And – I pray that if it is God’s will – that doors be some how opened, that the mother changes her mind, and that Kyler be restored to you.
Bless you
Lisa