Nev. couple fighting to regain custody of Diné toddler

 

N evada social service officials have gone to the state Supreme Court in an effort to secure the adoption of a Navajo child by a non-Native couple with whom she has lived for most of her life.

Rebecca and Edward Shoemaker have been fighting to adopt Mary, now 22 months old, who was born to a Navajo mother and a non-Native father in Las Vegas, Nev.

Foster parents for the past five years, the Shoemakers raised two children of their own and have looked after more than 25 babies placed in their care by the state.

The state brought Mary to them shortly after she was born on Feb. 25, 2007, with drug-related problems. The baby had traces of methamphetamine in her bloodstream and state officials said the mother had been using drugs as recently as three days before the birth.

As for the father, no one knew exactly who he was. When the mother consented to have the child placed in foster care, the state began a process to sever parental rights and place her for adoption.

Because the child is half-Navajo, however, she is covered under the federal Indian Child Welfare Act so the state contacted the mother's relatives on the reservation, said Edward Shoemaker, who is a Las Vegas police officer.

"The grandmother was disqualified and none of the other relatives showed any interest in the baby," he said.

In fact, although the Navajo Nation was informed that the state of Nevada had decided to allow the Shoemakers to adopt Mary, state officials claim the tribe also showed no interest - at least in the beginning.

Shoemaker said after adoption proceedings began, he became aware of the federal law that was passed in 1978 to ensure Native American children had the opportunity to be raised within their own cultures.

Another aspect of the case is that the Shoemakers are Mormon and Shoemaker said he became aware after studying the act that one of the main reasons it was passed was to counter the church's decades-long effort to bring Native children into Mormon families.

Native Americans occupy a special place in Mormon theology, and throughout the 1950s, 60s and early 70s, the church encouraged its members to adopt Navajo children whenever possible.

However, the Shoemakers' church affiliation is not at issue in the legal proceedings, which instead have centered solely on legal issues.

Tribe seeks custody

In February 2008, as their adoption of Mary was moving forward smoothly, the Navajo Nation filed a motion to have Mary's case turned over to Navajo courts under the Indian Child Welfare Act.

On May 14, two days after it terminated the mother's parental rights, the Clark County Family Court agreed to the tribe's petition, granting custody of Mary to the Navajo Nation. At that hearing, attorneys for the county Family Services Department agreed that the Shoemakers had, under the law, no standing to oppose the custody transfer to the tribe.

The tribal court subsequently placed Mary with an uncle who lives on the reservation, where she remains.

At the point she was removed from their home, Mary had lived with the Shoemakers for 14 months, her entire life. According to a story in the Las Vegas Review Journal, Mary watched as the Shoemakers packed her belongings and asked "Whatcha doing?" and the Shoemakers broke down in tears.

At this point, the story should have ended as it does each year for a dozen or so cases where the Navajo Nation steps in and asserts jurisdiction over the custody of Navajo children.

But Shoemaker decided to look further into the law and came up with some arguments that he felt were not addressed by the Clark County court. He brought this to the attention of the county Family Services Department, which agreed that a mistake had been made in yielding custody to the Navajo Nation.

Deputy district attorney Soomi Kim argued that there were a number of legal issues that were not addressed in that original court hearing and asked that the matter be reheard.

The Navajo Nation, however, maintains that the original decision was correct and the tribal court should determine who raises Mary, based on the best interests of the baby and the Navajo Nation.

But Shoemaker has brought up two arguments that he feels need to be addressed by the Nevada courts to determine if it was proper to turn the child over to the Navajo Nation.

The first centers on the question of timing.

The Nevada court gave Mary to the Navajo Nation two days after the parental rights of the mother were terminated. Once those rights were terminated, Shoemaker contends, the Navajo Nation should have no standing because the Indian Child Welfare Act would no longer pertain.

The act says this about termination of rights: In any voluntary proceeding for termination of parental rights to, or adoptive placement of, an Indian child, the consent of the parent may be withdrawn for any reason at any time prior to the entry of a final decree of termination or adoption, as the case may be, and the child shall be returned to the parent.

Shoemaker contends that the Navajo Nation had a right to be involved up until the mother's rights were terminated, although the Navajo position is that the tribe's rights remain since it had filed for custody weeks earlier.

But if the tribe's rights remain, Shoemaker says, what would prevent the tribe from seeking custody in the future, perhaps years after the mother's rights had been terminated and the baby was settled into its adoptive family?

Another issue he raised is the mother's detachment from the Navajo Nation: She was born off the reservation, never had lived on it, and had no plans to move there.

"If the mother had kept the baby, it would not have been raised on the reservation," he said, arguing that this fact should diminish the authority of the tribe over custody issues in Mary's case.

Question of identity

The Indian Child Welfare Act doesn't address parental lifestyle choices, saying only that the tribe has jurisdiction over any child of a Navajo: "In any State court proceeding for the foster care placement of, or termination of parental rights to, an Indian child not domiciled or residing within the reservation of the Indian child's tribe, the court, in the absence of good cause to the contrary, shall transfer such proceeding to the jurisdiction of the tribe, absent objection by either parent, upon the petition of either parent or the Indian custodian or the Indian child's tribe: Provided, that such transfer shall be subject to declination by the tribal court of such tribe."

Shoemaker said he does not believe this language allows the Navajo Nation to take over jurisdiction when the child's ties with the tribe are limited, at most.

The problem the Shoemakers are facing currently, however, is not legal issues but time.

The appeal went originally to the Clark County court but when the judge there refused to rule on the issues raised, the Family Services attorney appealed to the Nevada Supreme Court. The case has languished there for several months with no indication when a decision would be made.

"We don't have any problem with the Navajos," Shoemaker said. "Our problem is with the system and how long it has taken for the courts to make a decision."

He agreed that the longer it takes, the more unfair it is to Mary since she is bonding with her Navajo relations as she once bonded with the Shoemakers. He added that he and his wife have not seen Mary since she was turned over to the Navajo Nation.

 "Right now it's all about procedure and not what is the best interests of the child," he said.

He said his family hasn't given up on getting Mary back but the court delays have caused more and more frustration, especially since under Nevada law child custody cases are supposed to get the fastest possible action.

The Shoemakers are also concerned that if the Nevada high court does agree with them, the Navajo Nation will appeal Mary's case in the federal courts, delaying her return for even more months or possibly years.

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