On January 18, 1996 the California Court of Appeal handed down its decision in a nationally publicized case involving twin girls who were placed for adoption with a couple from Ohio. After voluntarily placing the twins for adoption, the biological family sought to overturn the adoption by alleging that the children were Native Americans and the matter was subject to the provision of The Indian Child Welfare Act (ICWA).

The trial court held that ICWA applied and ruled that the children should be returned to the tribe.

The Court of Appeal reversed the trial court and sent the matter back for further proceedings. The Court of Appeal made several significant rulings in its 60 page opinion.

The Court recognized the important constitutional rights of the children and upheld those rights as separate and distinct from the parents' rights. The Court said that, in situations where a child's rights conflict with the parents, "the legal system traditionally protects the child."

The Court ruled that ICWA must be limited in application to Indian children who belong to an "existing Indian family" which has a substantial and significant social, cultural or political relationship with the Tribe. If there is no existing Indian family, the Court stated that invoking the provision of ICWA would be unconstitutional under the Fifth, Tenth, and Fourteenth Amendments to the Constitution.

The trial court is instructed to hold a factual hearing to enable the biological parents an opportunity to establish the existence of an existing Indian family; if not, the adoption will proceed in Ohio. The Court of Appeal, however, held that, in the unlikely event the trial court found evidence to support the existence of an existing Indian family so as to warrant the application of ICWA, the adoptive parents nevertheless shall retain custody of the children as legal guardians if they establish at a hearing that a change in the custody of the twins to the biological parents would be detrimental to the twins and contrary to their best interests.

This long awaited decision is a very positive development in adoption law. Often children are treated as nothing but the spoils of war in an emotional battle among adults. The Court's recognition of the constitutional right of children to safe, secure environments and to be protected from psychological and

emotional injury, even at the expense of the rights of biological parents, is particularly important.

The Court's restriction upon the application of ICWA will eliminate many unnecessary and expensive proceedings where neither biological parent has any meaningful contact with an Indian Tribe other than a minimal blood relationship.

Credits: Michael P. Bentzen, Esq., NCFA Counsel