RATHDRUM, Idaho — KREM 2 On Your Side found new information in the fight to have a little girl returned to her foster home, rather than live with relatives with multiple criminal convictions.
The Department of Health and Welfare has always maintained it is following the law with regard to foster and adoption cases, but 2 On Your Side discovered new information about how Health and Welfare workers made the decision to place D with her adoptive family.
It has been almost two months since Andy Butler last saw D, her foster daughter.
“I dropped her off, and was told that was it,” said Butler.
The pair had been inseparable since the little girl was just a baby. When D’s biological parents surrendered their rights, Andrea began the final adoption process.
PART 1: Rathdrum mom fights to bring foster daughter home
PART 2: Biological mother outraged by custody fight
“The mom had terminated her rights. There was nothing left to do but move her into her permanent home, her permanent situation,” Butler said. “And then, that's when, ‘wait a minute, she's an Indian child. We can't leave her with you.’”
Andrea said from the very beginning, she was told D’s case may fall under the Indian Child Welfare Act (ICWA).
The ICWA is a federal law to place Native American children with families who understand and share their culture.
When D’s court appointed advocates challenged the rule, a Kootenai County judge decided ICWA did not apply.
“There was no family to break up,” explained Butler. “It's all about the break-up of Indian families. And she had never been truly part of an Indian family, so the judge ruled, ‘you're not breaking anything up.’”
The state still moved forward on removing D and placing her with relatives. A Health and Welfare spokesperson said the agency used the following state statute to help make its decision: "Absent the presence of compelling circumstances, a fit and willing relative must be given priority over non-relatives (including fictive kin and foster parents) when it comes to deciding where to place a child.”
A Health and Welfare spokesperson also released this statement in the case: "Our clinical team of social workers in North Idaho, who are actually in the home and have extensive first-hand experience with the adoptive family, made the placement recommendation. This was a highly unusual and complex case, which we regret caused significant delays, but placement with her brother, aunt and uncle are in her best interests and in accordance with state and federal law, as well as our standards."
A guide for judges on placing children in adoptive homes on Idaho's State Supreme Court website has a list of best practices for judges produced by a national council of judges. It recommends, "Relatives are generally the preferred persons to adopt…However, if a child has been in a foster home for an extended period of time, is adjusting well, bonding to the foster family, and the foster family wishes to adopt, and if a relative comes forward after many months and expresses interest, the foster parents would be the preferred option because of their relationship with the child."
The Department of Health and Welfare is not obligated to follow this list of best practices for judges.
The state was also asked why it took so long to make a decision on D's placement.
The agency's own "Concurrent Planning Standard" states, "within 30 days after a child is removed from their home, workers must make efforts to identify and notify all adult relatives.”
It also stipulates, "Relatives should be made aware that when they wait to come forward, they may not be considered a possible placement resource, as it may not be in the best interest of the child."
Health and Welfare department representatives did not respond directly to KREM 2’s questions, only stating, “This is a highly unusual and complex case that experienced significant delays. There were court delays, delays from our agency and the adoptive family, and delays caused by the foster parent. We all share responsibility. The extended timeframe caused by these delays is extremely unusual and the most regrettable factor of this case.”
Idaho State Senator Bob Nonini also wants answers. He said he started asking around when Andrea first approached him in March.
“I was first told by Health and Welfare the child fell under ICWA, an Indian Child Protection Act [and] a federal law, and then, come to find out, the child is not under that law,” said Nonini.
He wonders why the department first told him ICWA was the main factor in D’s placement, but then said it was not. Nonini said he also wants to know why Health and Welfare does not seem to be following some of its own rules.
“I am troubled by the fact that it has taken this length of time, when the guidelines say 18-22 months, and it's been four-and-a-half years,” said Nonini. “Yes, obviously something is wrong with that scenario.”
The state's decision also goes directly against a court affidavit from D's biological mother, who said her daughter had developed an extraordinary emotional bond with Andrea, and specified she did not want her daughter to be placed with the relatives who are now trying to adopt her daughter.
Health and Welfare spokespeople declined to answer questions about why they went against those wishes.
Before D's placement with those relatives, child wellness experts told Health and Welfare that removing her from Andrea would be traumatic.
Health and Welfare declined to answer why it went against those recommendations, again. Officials cited privacy laws.
Senator Nonini said it does not make sense. He told KREM 2 he and fellow lawmakers are looking into the possibility that laws need to be changed for D and others.
“A lot of people have gotten involved. Our Senator Jim Risch has been involved in this,” said Nonini. “So, Andy and her friends are doing the right thing in bringing this to our attention, at least so we can start to look into it and get the questions answered that we also all have… And if it takes a month, or two months, or six months. I'm willing to invest the time to make sure D is taken care of.”
In the meantime, Andrea still waits, hoping D will eventually come home.
“What do you say that makes sense to a five-year-old? All she wants is her mom. She doesn't care about laws and rules and blood. She doesn't know. Because that's not what makes a family all the time,” said Butler.
KREM 2 News also reached out to the relatives who are adopting D. They did not want to sit down for an interview.
KREM’s 2 On Your Side will keep investigating the case of D as lawmakers join the fight for answers.