Father raises ICWA after Adoptive Parents have had child several months

March 26, 2009

Dear CAICW, Hello. We live in northern Virginia. We have a beautiful 3 month old little girl that we are in the process of adopting. That was until a week ago Monday, March 16th, when our nightmare began. We should probably start at the beginning. For our adoption process we have been on a national network which has given us choices among various birthmother scenarios and agencies to consider having our profile sent to. After being selected by a different birthmother only to have her miscarry, we became aware of the our Baby’s birthmother and her scenario. Her information stated that she was a member of the Omaha tribe but the birthfather was not. He was supposedly an Africian American married man. She also was no longer living on the reservation. She did not have anything positive to say about the reservation and/or living there and wanted to protect her baby from that environment. Her agency had spoken to us regarding ICWA and yet we believe that it was misrepresented. The major point that was emphasized was that we would have to spend 3 weeks in Iowa after the baby’s birth because of ICWA law.

We had been told that the tribal counsel would have a say in approving the adoption. We questioned whether the tribe could take our future baby away and we were told that they dealt with these scenarios alot and it was rare and there would be legal remedies that could be applied if it did happen. It shouldn’t affect us. We didn’t know any better, so we proceeded. The birth mother selected us and we spoke with her 4-5 times up until December 22, 2008 when she went into labor (2 weeks sooner than what we had anticipated). Her due date changed in the 3 months that we had been communicating with her. We spoke with her afterthe baby was born and told her that we were on our way that same day.

Her mother and sisters, who live on the reservation, spent time with her and Baby the night she was born. They began trying to change her mind regarding placing her baby with a non-Indian family. We have been told now, by our lawyer that this has continued for the past 3 months. She has 2 other boys that she does not have custody of since she is an alcoholic. They live with their father on the reservation. We were not aware of her alcoholism until after we arrived in Iowa. When we found out that she was in labor, we also found out that the information we knew regarding the birthfather was a lie. He is a 21 yr. old member of the Omaha Tribe, living on the reservation. He was not aware that she was even pregnant or that she had chosen to place the baby for adoption. We were later informed that the attempt to notify him of the pregnancy, birth, and pending adoption did/could not occur until after the ICWA consent hearing. That seemed a little late to us but we were advised that this was ICWA law. Upon arriving in Iowa, December 23rd, with Karen’s mother, we immediately began caring for Baby.   The birth mother was discharged from the hospital December 24th. Iowa law states that custodial rights can not be terminated until 72 hours after birth. Both lawyers decided to push that back 24 hours more so that she would not have to sign over her custodial rights on Christmas day. We spent this additional time in an exam room off the hospital nursery caring for Baby. the mother signed over her custodial rights on December 26th without any issues. An at-risk placement was then initiated between us and our lawyer and we were able to take Baby back to the hotel. The ICWA consent hearing was not held until 18 days after birth. We knew that we would have to wait 10 days. During this time, per the mother’s request, we took her out for dinner so she could see Baby. At no time did she seem to be changing her mind.

The 8 day delay in the ICWA consent hearing was because the mother conveniently made herself unavailable to the lawyers and us. She did end up going to the ICWA consent hearing on January 9th. Our lawyer did not anticipate any additional “hiccups.” We were given the go ahead to return to Virginia, Friday, January 16th. We had already agreed to have lunch again with the mother so we had lunch and also took her to a possible job interview that Friday. Everything went well. We left Iowa and headed for home on Saturday, January 17th. Upon arriving back in Virginia, we began our incredible life with Baby. . She has adjusted and bonded well. She is developing perfectly and meeting all the appropriate milestones. We were informed that the proper proceedings for notifying the birthfather and tribe had been started and the termination of rights hearing had been set for Monday, March 16th.

Two months out seemed a bit far off but we figured that our lawyer was allowing for all the proper notifications to occur. We began our post-placement interviews with our caseworker. The 1st one was February 7th and the 2nd one was March 14th. Our lawyer’s office told us that if there is going to be a issue with the termination of rights hearing then they normally hear from the tribe or lawyers the week before the hearing is scheduled. That week came and went without any news. We thought everything was progressing well until Monday, March 16th. Basically, the birthfather, his mother and sister arrived at court without a lawyer stating that they wanted the baby and had not abandoned her because they did not know that she existed. They requested a court appointed lawyer and then were told by the court that they were not eligible because the father makes $9/hr. working 40 hours a week at the casino on the reservation. At this hearing, the birthfather, his mother and sister also requested that this case be transferred back to tribal court.

the birth mother was in court with her lawyer. We were later told that she had an idea that the birthfather might show up at court and had basically decided that if he did she was not going to fight him. Both our lawyer and her lawyer had spoken with her about how she was going to need to once again articulate that she had chosen to place Baby with a non-Indian family and state our names. She did not do this in court nor did she say that she did not want the transfer back to tribal court to occur. We have been told that she is the only one that can stop the case from transferring. The judge set a continuance hearing for May 21st. Yes, an additional 2 months away. While the mother was traveling home with her lawyer, she verbally stated that she wanted to revoke her ICWA consent for adoption and she did not want to stand in the way of the transfer to tribal court. Her lawyer asked her to come to his office the following day to sign the paperwork so he could submit those desires to the court. She did not show at her lawyer’s office the next day. She is conveniently unavailable – doesn’t answer her door, doesn’t answer her cell phone, landline phone is disconnected due to lack of payment. March 16th and 17th, our lawyer and her lawyer basically began preparing Matt and I for the transfer of Baby.

The mother had previously told her lawyer that she did not have the money to fly to Virginia to get Baby. The lawyers were in communication with the ICW worker to see if dad, grandmother, or someone from the tribe would be able to come. To the surprise of our lawyer, we have now gone over a week and no one has heard from dad and/or grandmother. No attempt is being made to bring Baby back to Iowa so they can begin to raise her as they so desire. We have been reminded that we could possibly have to return to Iowa with Baby because of the placement agreement we signed with our lawyer. This is what we are currently being told: – if we return Baby right now, she will be placed in foster care (either state or tribal) until the May 21st hearing – we are not being encouraged to do so – if birthfather or grandmother want to come to Virginia and get her they can and/or we basically just “babysit” for another 2 months knowing that we are going to lose her – basically live 2 months in a state of limbo – grieving for and caring for this precious bundle simultaneously – the case has already been requested to be tranferred to tribal court so if the birthfather says on May 21st that he does NOT want Baby we still can not have her because the case would still go to tribal court and they would decide what would happen to her – keeping her within the tribe – the ONLY way we can keep Baby is for the birthmother to show up at the May 21st hearing and state in court that she does not want the case to go to tribal court and she stands by her ICWA consent for adoption – she can revoke her ICWA consent for adoption all the way until the final decree for adoption (something we were not told until March 16th)

We are Christians and truly believe that God can rule and overrule. We also believe and know that Baby is His and He loves her more that we do. As her parents we want to fight for her and yet don’t know if our lawyer is doing everything that she can. We want to trust her and yet it is incredibly hard to be told that we must sit and wait for the mother, a compulsive lying, alcoholic that conveniently disappears, to show up in court and stand by and articulate her previous words. Can you help us and/or connect us with someone who can? Is there anything we can do? Thank you so much for your time and consideration.