After heart-wrenching court battle, Choctaw girl pulled from foster family

The Indian Child Welfare Act is meant to help tribes keep children in tribal homes where they can learn about their culture. But 6-year-old Lexi's foster family says the application of the law in her case robs her of the 'only family that she has ever known.'

First Look

After a grueling court battle, a 6-year-old girl has been removed from the foster family with whom she has lived since she was a toddler to be placed with relatives of her birth father.

Lexi, whose birth family is part Choctaw, has lived with Summer and Rusty Page in their home in Santa Clarita, Calif., since she was 2 years old, but the court decided that it would be in her best interest to place her with relatives in Utah where she could be near her native American extended family.

The court decision rests on a federal law meant to protect native American children's best interests, but the Pages argue that it has been misapplied in Lexi's case and is forcing her to be ripped from the “only family that she has ever known.”

Authorities are taking the child to relatives of her birth father, who live in Utah. Lexi visits the relatives each month and Skypes them weekly, according to court documents.

"She has a loving relationship with them," said Leslie Heimov, from the Children's Law Center of California, the girl’s court-appointed legal representatives. “They are not strangers in any way, shape or form."

To the Pages, who say that Lexi has thrived under their care, removing her now will rob her of the very stability the law is meant to provide for children.

"How is it that a screaming child, saying 'I want to stay, I'm scared,' how is [it] in her best interest to pull her from the girl she was before that doorbell rang?" Mr. Page told KNX-AM radio.

The Indian Child Welfare Act, enacted in 1978, is meant to protect native children’s opportunity to grow up with their own extended family, or another Native family, to foster their sense of identity and their understanding of their culture.

For roughly a century, native children were routinely taken from their communities and forced to attend boarding schools run by non-native staff trying to “assimilate” children into white culture, punishing them for using their mother languages and limiting contact with their families. In many institutions, abuse was rampant.

The legacy of that system is still felt on reservations today. Advocates say that those decades of broken traditions and communities contribute to the challenges native groups face in the 21st century, when tribes still suffer from disproportionate poverty. 

Others believe that the current foster care system does the same thing. Despite ICWA, native children in state custody are often placed with non-Native families. In South Dakota, for instance, 90 percent are in non-native homes, and often removed from their families for questionable reasons, according to an NPR investigation. 

Living with extended family in Utah will be in Lexi’s best interests, the Choctaw Nation said in a statement, saying “the tribe's values of faith, family and culture are what makes our tribal identity so important to us.”

But the clash between a caring family, and a cultural community, is heightened in this case because the family Lexi is being sent to is not native American: they are related to her father by marriage. Lexi’s father himself is enrolled with the Choctaw Nation, but was not aware of it; according to court documents, Lexi is 1/64 Choctaw. Her paternal grandmother informed the court that he was enrolled in the tribe.

Lexi’s court-appointed lawyers emphasize that she will have two biological sisters nearby after the move: one of her sisters lives with the same family, and another lives a few houses away.

"The law is very clear that siblings should be kept together whenever they can be, and they should be placed together even if they were not initially together," Ms. Heimov told the Los Angeles Daily News.

Lexi was originally removed from her parents’ care at 17 months. Her father has a criminal record, and her mother, who is not native American, has substance abuse problems.

Until recently, however, her father was trying to regain custody. He lived near the Pages, so the tribe agreed to place Lexi there. If that plan did not work, she would move to her Utah family.

The Pages have been fighting that decision for several years, and want to adopt Lexi, but an appeals court found they "had not proven by clear and convincing evidence that it was a certainty the child would suffer emotional harm by the transfer." The couple’s appeal argues that that decision “erroneously applied the clear and convincing standard of proof, rather than preponderance of the evidence.”

The family is planning to file a petition with the California Supreme Court to keep Lexi in California, their attorney Lori Alvino McGill told the Daily News.

“We will continue to pursue the appeal, and we will press on the U.S. Supreme Court if that becomes necessary,” Ms. Alvino McGill said.

This report includes material from The Associated Press.