Unbreakable Bond - The Exception That Swallows Rule

Jessica JorgensenBy Jessica Jorgensen, JD

Consider the facts: a child is removed from her parents a few months into her life. She moves to several foster homes before she is settled in a home with a loving and caring foster family. There is a relative available for placement out of state. The child remains in the foster home as the father is receiving reunification services and progressing towards getting his child returned. Then, nearly eighteen months down the road, father’s reunification services are terminated. The relatives out of state are and always have been available for adoption of this child in the event reunification failed. The child is reportedly very attached to the current foster parents but capable of healthy attachment to others. This child is an Indian child. Where should she be placed?

The Indian Child Welfare Act (“ICWA”) provides for a preference for placement of Indian children with their families and preserving the connection between the child and the child’s tribe when removal becomes necessary. 1 The ICWA very clearly articulates a strong ‘‘federal policy that, where possible, an Indian child should remain in the Indian community.’’2 In fact the U.S. Supreme Court has said that the statutory placement preferences are “the most important substantive requirement imposed on state courts.”3

In practice, the differing standards for foster care placement versus adoptive placement4 often result in a change in placement should reunification with a parent fail. This is because many times there is a family member or tribal home available to take an Indian child in for placement purposes, short and long term, but placement is not appropriate at the time due to the distance that would separate the Indian child from his or her parents during reunification. In states like California, where there is a large population of Indian families in an urban setting isolated from their extended family and tribal connections and a dearth of ICWA-compliant placements, this can result in a drawn out fight between out-of-state relatives and foster parents over the placement of the child. There has been an unsettling trend in recent case law suggesting that the bond between a child and foster parents and the potential detriment that may come from breaking that bond should be considered good cause to deviate from the placement preferences. It would appear that the revisions to the BIA Guidelines5 attempt to clarify this very issue.

The Guidelines, although neither controlling nor exclusive, indicate that a determination of good cause to deviate from the placement preferences must be based upon at least one of four considerations. Three of these have created little to no controversy: (1) the request of the parents, (2) the request of the child, and (3) the unavailability of an ICWA compliant home. The fourth consideration, the extraordinary physical or emotional needs of the child, is the one that some state courts have expanded upon to the point of considering a normal, healthy attachment to a foster parent to be an extraordinary physical or emotional need, or rather an exception all of its own, that would require deviation from the placement preferences. The Guidelines clarify that this consideration must be supported by testimony of a qualified expert witness and is intended to cover such circumstances where an Indian child requires specialized services that may be unavailable in the community of the ICWA-compliant home. The one thing the Guidelines specifically preclude from this consideration is “ordinary bonding or attachment that may have occurred as a result of a placement or the fact that the child has, for an extended amount of time, been in another placement that does not comply with the Act.”6

This makes perfect sense given that we would expect any good foster parent to establish a bond with a young child placed in their care for any substantial period of time. In California, the reunification period may extend up to 18 months and in some cases even 24 months. Thus, a child may remain in a foster care placement for nearly two years before the focus shifts towards adoption and the placement preferences of 25 U.S.C. § 1915(a) then apply. Courts would generally not hesitate to return a child to a parent, where appropriate, despite any bond that may have been established with foster parents during the period of reunification. So why then should we hesitate to place a child with an able and willing family member or otherwise ICWA-compliant home when it furthers the purpose and intent of ICWA, which is intended to protect the best interests of Indian children?


1 See 25 U.S.C. § 1915(a) and (b).

2 Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30 (1989) (citing H. Rep. 95–1386 at 24).

3 Id. at 36.

4 Cf. 25 U.S.C. § 1915(a) with 25 U.S.C. § 1915(b).

5 http://www.indianaffairs.gov/cs/groups/public/documents/text/idc1-029447.pdf

6 http://www.indianaffairs.gov/cs/groups/public/documents/text/idc1-029447.pdf

About the Author
Jessica Jorgensen is a staff attorney at Los Angeles Dependency Lawyers, Inc, Law Office of Katherine Anderson. She has conducted organization-wide trainings on ICWA and been a guest speaker on the topic of ICWA for a class at Whittier Law School. She is trial counsel for the father in the published case of In re Alexandria P., 228 Cal.App.4th 1322 (2014), which is currently on remand in the trial court.


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