Beliefnet
July 26, 2002

The state Supreme Court ruled yesterday that a Jewish grandmother will be allowed to continue raising her Native American grandchildren in her Tacoma home despite assertions from the mother that the children should be with her. In a legal battle that balanced cultural protections for Indian families and tribes with the best interests of the children, the court ruled that transferring custody to the mother "would likely result in serious emotional and potentially physical damage to the children."

In 1992, Rebecca Johnston, an Alaskan Indian, and her boyfriend, Mark Mahaney, were living in Anchorage and both were struggling with the ravages of alcohol abuse, according to court documents. That March, they sent their two toddlers, Natasha and Jesse, to live with their grandmother Erika Mahaney, also of Anchorage. The next year, they gave temporary legal custody to the grandmother, who moved with the youngsters to Tacoma.

Natasha, now about 14, and Jesse, about 12, having been living with their grandmother ever since and have been raised Jewish, attending Hebrew school and taking Yiddish lessons. Natasha, according to court records, describes herself as being Jewish.

Over the years, Rebecca Johnston has made several attempts to regain custody of her children, asserting that she can give them a stable home environment.

An attempt to regain custody in 1994 failed when Erika Mahaney obtained, in Pierce County Superior Court, a temporary non-parental custody order.

Erika Mahaney told the court that the children suffered from "the effects of sexual abuse, domestic violence, general neglect and abandonment" while under their mother's care.

Johnston denied allegations that she used illegal drugs, and accusations from Natasha that she sexually abused her. Johnston admits that she saw her younger brother sexually molest both children. In addition, she spent time behind bars after convictions for driving while intoxicated.

The children have been diagnosed with fetal alcohol syndrome, attention deficit-hyperactivity disorder, post-traumatic stress disorder and other behavioral disorders associated with sexual abuse.

The court ordered that it was in the best interest of the children for the grandmother to retain custody.

Johnston brought her custody battle to the state Court of Appeals in 1999, asserting that under the federal Indian Child Welfare Act, the Superior Court had not evaluated the evidence against her using the "clear and convincing standard" listed in federal Bureau of Indian Affairs guidelines.

And she said that under the law, an expert versed in Indian culture should have been involved in evaluating the evidence against her.

The Indian Child Welfare Act was enacted in 1978 "to promote the security and stability of Indian tribes" while protecting the best interests of Indian children. The law gives a clear preference for keeping Indian children with their families and placing Indian children who must be removed from their homes within their own families or Indian tribes.

The appellate court agreed with the mother and overturned the trial court ruling. The grandmother then brought the case to the Supreme Court.

Yesterday, the Supreme Court handed Mahaney a victory by overturning the court of appeals ruling.

Saying that the guidelines of evaluating the evidence by a clear and convincing standard do not have the effect of law, the court held that the Indian Child Welfare Act does not replace the mandate of Washington state law requiring that the best interests of the child be paramount.

"Even where there is no showing of present parental unfitness ... the court may take into consideration emotional and psychological damage from prior unfitness. Moreover, in the case before us, the court is entitled to examine the lack of a bond to the parent and the presence of a bond to the children's grandmother, who has been their parent figure for most of their lives."

The court also noted that under the Indian Child Welfare Act, placement with a grandmother, even a non-Indian, is contemplated as appropriate.

The justices quoted the trial lawyer who said that "transferring custody to (the mother) would likely result in serious emotional and potentially physical damage to the children."

The high court also held that there is no need for an expert witness to have special knowledge of Indian life if the testimony does not inject cultural bias or subjectivity into the proceedings.

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