Lexi, ICWA and A Failing Child Welfare System

It is not often that we see California dependency cases playing out in the press but this past weekend local Southern California T.V. stations reported on Lexi, a six year old L.A. County foster child and her imminent move to Utah to be placed with extended family members. The reporting spotlights the complex Indian Child Welfare Act and the devastating effects the Act’s placement mandates can have on foster children in this country. Lexi was moved yesterday after living with her foster parents in Los Angeles for the past 4 years.


“The primary purpose of juvenile law is the protection of the child, and dependency proceedings, being civil in nature, are designed to protect the child rather than to prosecute the parent. [Citations.]” (In re Kerry O. (1989) 210 Cal.App.3d 326, 333; emphasis added.) The fundamental premise of dependency law is to serve the best interests of the dependent child. The law provides the juvenile courts with the necessary tools and guidelines, as well as broad discretion, to make appropriate orders regarding dependent children consistent with this foundational principle. The juvenile court has broad discretion to determine what would best serve and protect the child's interest and to fashion a dispositional order in accordance with this discretion.” (In re A.J. (2013) 214 Cal.App.4th 525, 536; internal citations and quotation marks omitted; emphasis added.)


The Legislature has decreed that “notwithstanding any other provision of law, the purpose of the provisions of [the Juvenile Court Law] relating to dependent children is to provide maximum safety and protection for children who are currently being physically, sexually, or emotionally abused, being neglected or being exploited, and to ensure the safety, protection, and physical and emotional well-being of children who are at risk of that harm.” (Welf. & Inst. Code §300.2; emphasis added.)


Welfare and Institutions Code section 317, subdivision (c)(1) emphasizes that it is the primary duty of the child’s attorney to “advocate for the protection, safety, and physical and emotional well-being of the child.” (Emphasis added.) Welfare and Institutions Code section 317, subdivision (e)(7) requires the juvenile court to “take whatever appropriate action is necessary to fully protect the interests of the child.”


Section 352, subdivision (a) specifically recognizes that the child’s interests include a “need for a prompt resolution of his or her custody status,” to be provided “with a stable environment,” and protection from the “damage to a minor of prolonged temporary placements.” All of these threats to Lexi’s emotional well-being are implicated by the juvenile court’s decision.


When the juvenile court removes a child from parental custody, there has already been a finding that the child has abused or neglected in one of the ways specified in Welfare and Institutions Code section 300. In most cases, this means that the child has already suffered some form of trauma before he or she enters the child welfare system. Being removed from his or her own home is often traumatic for a child and every placement change thereafter increases the child’s sense of impermanence, of not belonging.


A ground-breaking longitudinal study conducted by the United States Centers for Disease Control and Prevention and Kaiser Permanente showed that there is a direct correlation between the number of adverse childhood experiences (ACE) a child experiences during childhood and that child’s risk for experiencing a number of serious physical illnesses as well as psychological and behavioral difficulties as an adult. (American Academy of Pediatrics (AAP), Adverse Childhood Experiences and the Consequences of Trauma (2014), p. 1 (Adverse Childhood Experiences) <https://www.aap.org/en-us/Documents/ttb_aces_consequences.pdf> [as of 11/9/15); Felitti, et al., Relationship of Childhood Abuse and Household Dysfunction to Many of the Leading Causes of Death in Adults. The Adverse Childhood Experiences (ACE) Study, 14 Am. J. of Prev. Med. (Issue 4, May 1998) at pp. 245-258; <http://www.ajpmonline.org/article/S0749-3797(98)00017-8/abstract> [as of 11/9/15])


Adverse Childhood Experiences include physical and emotional abuse, emotional and physical neglect, household substance abuse, household mental illness and loss of a parent. (Adverse Childhood Experiences, supra, at p. 2 <https://www.aap.org/ en-us/Documents/ttb_aces_consequences.pdf> [as of 11/9/15.) Early childhood trauma (0-6) puts young children at particular risk because their brain development is adversely affected by trauma. Early trauma has been associated with reduced size of the brain cortex. Young children depend exclusively on parents/caregivers for survival and protection. When the child loses the support of a trusted adult to help the child regulate his or her emotions, the child may experience overwhelming stress, with little ability to communicate what the child feels or needs. (National Child Trauma Stress Network, How Is Early Childhood Stress Unique?  <http://www.nctsn.org/ content/how-early-childhood-trauma-unique> [as of 11/9/15].) A child’s reaction to trauma can be buffered by a relationship with a protective, supportive adult and a healthy attachment relationship with an adult caregiver can help counterbalance the adverse experiences. (Adverse Childhood Experiences supra, at pp. 2, 4, [as of 11/9/15)


It is only recently that the child welfare system has begun to recognize the need to develop trauma-informed practices that take into account not only the traumatic experiences caused by abuse or neglect but also the additional chronic stressors that can occur once the child enters foster care. (See, e.g., National Child Trauma Stress Network, Using Trauma-Informed Child Welfare Practice to Improve Placement Stability: Breakthrough Service Collaborative, at p. 1 <http://www. nctsn.org/sites/default/files/ assets/pdfs/using_ticw_bsc_ final.pdf>  [as of 11/9/15].)


Even the juvenile court acknowledged that it is likely that Lexi would suffer trauma if she was moved. Lexi has already suffered a lot of trauma in her young life. She spent the first 17 months of her life with substance abusing parents who neglected her; she has already had four placement changes, including the removal from her parents; and she was physically abused in her first foster care placement. (In re Lexi P. (2014) 228 Cal.App.4th 1322, 1330.) This latest move will most assuredly cause her to suffer serious emotional harm. What will it take to stop the continuing systemic abuse of vulnerable children?


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