Caution is Necessary When Using Bonding and Attachment as “Good Cause” to Not Follow ICWA’s Placement Preferences

By Jack Trope, JD, and Sarah L. Kastelic, PhD

The Indian Child Welfare Act of 1978 (“ICWA”) states that, “In any adoptive placement of an Indian child under State law, a preference shall be given, in the absence of good cause to the contrary, to a placement with (1) a member of the child's extended family; (2) other members of the Indian child's tribe; or (3) other Indian families.” 1 Over the course of the past 35 years, Courts have struggled to determine what constitutes “good cause” to deviate from these placement preferences. The 1979 Guidelines for State Courts provided some suggested parameters,2 but courts have been left with wide discretion to find “good cause” to deviate from the placement requirements in ICWA.3 Possibly the most controversial reason for a finding of “good cause” is the emotional needs related to the bonding and/or attachment of an Indian child with a caregiver not included in the placement preferences. Courts are divided on whether bonding and attachment can or should be used to find “good cause.”4

The new Bureau of Indian Affairs Guidelines provide that “ordinary bonding and attachment” occurring in a non-preferred placement should not be the basis for a finding that the child has “extraordinary needs” that would justify a finding of “good cause” to place a child outside of the placement preferences.5 Like the 2015 Guidelines for State Courts and Agencies in Indian Child Custody Proceedings, we believe it is important to carefully circumscribe the use of bonding and attachment as a reason to deviate from ICWA’s placement preferences. We urge prudence for three reasons: 1) bonding and attachment has become a common loophole used to circumvent ICWA’s placement preferences contrary to the best interests of Indian children; 2) research on bonding and attachment has never included AI/AN children and families, and 3) recent scholarship raises serious questions about the use of bonding and attachment in child custody proceedings and how probative such evaluations are for all children.

In evaluating the wisdom of this Guideline, it is first necessary to recognize its raison d’etre. Specifically, agencies and attorneys have sometimes thwarted ICWA’s placement preferences—which Congress has found advance the best interests of Indian children—by placing Indian children with non-preferred families, resisting efforts to move the child for an extended period even when a family member is available, and then justifying the initial improper placement by arguing bonding or attachment. When these arguments are successful, they incentivize non-compliance with the law and therefore promote placement insecurity for Indian children. Thus, the central purpose of this section is to encourage compliance with the placement preferences in the Act which Congress and the BIA have concluded will promote the best interests of Indian children in the vast majority of cases. This is an appropriate preventive measure that will result in more decisions in the best interests of Indian children, not fewer.

In addition, it is critical to understand and acknowledge that attachment theory is based on assumptions derived from studies of middle-class European/Euro-American parents.6 This means that traditional attachment research has often overlooked the role of culture in a child’s sense of belonging.7 While studies of attachment in other cultural contexts are limited, those that have taken place have “reported inconsistencies of attachment security across cultures.”8 Of particular relevance to Indian children is scholarship questioning the relevance of attachment theory to “parents who do not adhere to the mother-infant dyad as the sole contributor to the child’s sense of security”9 but instead, rely on a “multi-layered” set of bonds and a “dense network of relationships”10 to parent, as these descriptors match tribal parenting models. For example, studies of Australian aborigines and tribal people in Nigeria have concluded that an attachment network approach would be preferable to evaluating the child’s emotional health and future well-being. 11 In addition, a recent study of resilience among American Indian adolescents in the Upper Midwest found that although higher levels of maternal warmth had a positive impact on resilience, the “strongest predictor of higher levels of resilience [for American Indian adolescents] was enculturation”, i.e., greater engagement with traditional culture.12 “The level of community support for pro-social outcomes” was also significantly associated with resilience.13 Thus, the research on the benefits of applying attachment theory in different cultural contexts is limited.

Moreover, recent studies and articles have raised concerns about the over-reliance on concepts of ordinary bonding or attachment in child custody proceedings in general. The use of bonding and attachment has been described by some judges and professionals as having “limitations” and “pitfalls” that make it of “limited use in juvenile and family court.”14 These observations are supported by the findings of researchers who have concluded that the “use of attachment-related assessments provides no improvement in the scientific foundation of child custody evaluation.” 15  Researchers note that the use of attachment theory in practice has passed from the hands of researchers to “inexperienced users who in many cases believe that there is far more evidence about attachment than actually exists.” 16 Many judicial decisions are based upon “misunderstandings of attachment theory and research” and “simplistic approaches to this complex aspect of development.” 17 This “popularized” version can lead to analyses that tie all behavioral issues back to early childhood experiences, rather than recognizing behavior as an ongoing process of adaptation. Another researcher noted that the vagueness of the best interest concept leads to a “low scientific standard” for expert testimony18. Thus, while it is certainly true that there is some support for bonding and attachment as a basis for child custody decisions in the literature, these principles are not sacrosanct.

It is for these reasons that we, and the new BIA Guidelines, believe that it is appropriate to limit the use of bonding and attachment as “good cause” to deviate from ICWA’s placement requirements.

This article includes content that was included in the memo: A Discussion of Proposed ICWA Regulations- Section 23.131 Restrictions on the Use of Bonding and Attachment which was prepared by the Association on American Indian Affairs pursuant to a contract with Casey Family Programs and is available here: 3 http://www.nicwa.org/Indian_Child_Welfare_Act/AAIA%20Bonding%20and%20Attachment%20memo.pdf

Footnotes

1 25 U.S.C. 1915(a).

2 Which state, in relevant parts, “a. For purposes of foster care, preadoptive or adoptive placement, a determination of good cause not to follow the order of preference set out above shall be based on one or more of the following considerations: (i) The request of the biological parents or the child when the child is of sufficient age. (ii) The extraordinary physical or emotional needs of the child as established by testimony of a qualified expert witness. (iii) The unavailability of suitable families for placement after a diligent search has been completed for families meeting the preference criteria.”

Guidelines for State Courts in Indian Child Custody Proceedings, 44 FR 67584, F.3 (Nov. 26, 1979).

3 See, generally, B.J. JONES, MARK TILDEN, AND KELLY GAINES-STONER, THE INDIAN CHILD WELFARE ACT HANDBOOK: A LEGAL GUIDE TO THE CUSTODY AND ADOPTION OF NATIVE CHILDREN, 138-42 (2008).

4 See In re C.H., 997 P.2d 776, 783-4 (Mont. 2000) (finding that to allow normal emotional bonding to be considered good cause would “negate the ICWA presumption” that the statutory preferences are in the Indian child’s best interests); In Matter of S.E.G., 521 N.W.2d 357, 363 (Minn. 1994) (finding that a child's need for permanence may be considered in determining the child's extraordinary emotional needs, but does not alone constitute “good cause” to deviate from the adoption placement preferences). Contra, In re F.H., 851 P.2d 1361 (Alaska 1993) (finding bonding between the child and non-Native placement good cause to deviate from the placement preferences).

5 Guidelines for State Courts and Agencies in Indian Child Custody Proceeding, 80 Fed. Reg. 10158, F.4 (2015).

6 Cara Flanagan, Early socialization: sociability and attachment (1999); John W. Berry et al., Cross-Cultural Psychology: Research and Applications (1992).

Fred Rothbaum et al., Attachment and culture: Security in the United States and Japan, 55 AMERICAN PSYCHOLOGIST 1093 (2000).

Annemarie Huiberts et al., Connectedness with parents and behavioural autonomy among Dutch and Moroccan adolescents, 29 ETHNIC AND RACIAL STUDIES 315 (2006); Chia-Chih D. Wang & Brent S. Mallinckrodt, Differences between Taiwanese and US cultural beliefs about ideal adult attachment, 53 J. COUNSELING PSYCHOLOGY 192 (2006); Maureen E. Kenny et al., Self-image and parental attachment among late adolescents in Belize, 5 J. ADOLESCENCE 649 (2005); Fred Rothbaum et al., Attachment and culture: Security in the United States and Japan, 55 AMERICAN PSYCHOLOGIST 1093 (2000).

9 Raymond Neckoway et al., Is Attachment Theory Consistent with Aboriginal Parenting Realities?, 3 FIRST PEOPLES CHILD & FAM. REV. 65 (2007).

10 Id.

11 Soo See Yeo, Bonding and Attachment of Australian Aboriginal Children, 12 CHILD ABUSE REV. 292 (2003).

12 T.D. LaFromboise et al., Family, Community, and School Influences on Resilience Among American Indian Adolescents in the Upper Midwest, 34 J. COMMUNITY PSYCHOLOGY 193 (2006).

13 Id.

14 Id. 

15 Mercer, 7 SCI. REV. MENTAL HEALTH 37 (2009).

16 Id.

17 Id.

18 Id. 


About the Authors
Jack F. Trope has been the Executive Director of the Association on American Indian Affairs (AAIA) since 2002. AAIA is a 93 year old Indian advocacy and service. Prior to joining AAIA in 2001, Mr. Trope was Director of the Western Area Office in New Mexico for the Save the Children Federation. Mr. Trope has also held a number legal positions, including having been a partner with the law firm of Sant’Angelo & Trope for 8 years, a senior staff attorney with AAIA for 6 years and an Assistant Counsel to two New Jersey governors. Much of his legal work has focused in the areas of Native cultural preservation and Indian child welfare. He received a bachelor’s degree from Rutgers College and his J.D. from Harvard Law School. Dr. Sarah Kastelic became the executive director of the National Indian Child Welfare Association in January 2015. Prior to joining NICWA, Dr. Kastelic led the National Congress of American Indians’s (NCAI) welfare reform program and was the founding director of NCAI’s Policy Research Center. In November 2014, national leadership network Independent Sector awarded Dr. Kastelic its American Express NGen Leadership Award, calling her “a transformational leader working to further policy research that empowers American Indian and Alaska Native communities.” Dr. Kastelic is Alutiiq, an enrolled member of the Native Village of Ouzinkie. After receiving a bachelor’s degree from Goucher College, she earned a master’s degree and PhD from the George Warren Brown School of Social Work at Washington University in St. Louis.  

Dr. Sarah Kastelic became the executive director of the National Indian Child Welfare Association in January 2015. Prior to joining NICWA, Dr. Kastelic led the National Congress of American Indians’s (NCAI) welfare reform program and was the founding director of NCAI’s Policy Research Center. In November 2014, national leadership network Independent Sector awarded Dr. Kastelic its American Express NGen Leadership Award, calling her “a transformational leader working to further policy research that empowers American Indian and Alaska Native communities.” Dr. Kastelic is Alutiiq, an enrolled member of the Native Village of Ouzinkie. After receiving a bachelor’s degree from Goucher College, she earned a master’s degree and PhD from the George Warren Brown School of Social Work at Washington University in St. Louis.  

 

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