Girl, 1/64th Indian, taken from foster family

Posted at 6:41 AM, Mar 24, 2016

A Santa Clarita, California, family is living its worst nightmare.

Rusty and Summer Page are losing their foster daughter, Lexi, whom they’ve raised as their own for the last four years.

A dramatic scene played out on Monday as the Pages were forced to say goodbye to Lexi. Due to a court order, the 6-year-old girl was taken from her home by Los Angeles County social workers to go live with extended family in Utah.

“She said, ‘Don’t let them take me. I’m scared. Don’t let me go,’” Lexi’s foster father, Rusty, said after the heart-wrenching moment.

“Please help!” he pleaded before a gaggle of news cameras assembled in the driveway. “For the sake of Lexi and everyone in this house right now.”

The legal fight for Lexi began four years ago, after relatives of the girl’s biological father, who is Native American, petitioned his Choctaw Indian tribe and the Los Angeles County Department of Children and Family Services to challenge the Pages' temporary custody of Lexi. The relatives invoked the federal Indian Child Welfare Act (ICWA), a law meant to protect the rights of Native American families.

“The intent behind the ICWA is to make sure that Native American children are kept not only within the family but within the tribe and within the culture,” ABC News senior legal analyst Sunny Hostin explained.

Lexi is 1/64th Choctaw on her father’s side, according to court documents, which also note that she was 17 months old when she was removed from her birth parents’ custody. Her mother had substance abuse problems and her father had an extensive criminal history, according to court documents.

“The original decision to send her to Utah was made almost three years ago,” said Leslie Heimov, executive director of the Children's Law Center of Los Angeles.

The Choctaw Nation sent the following statement to ABC News:

We appreciate the concern for Lexi and want to assure everyone she is in a safe, loving home with her relatives and her biological sisters. The Choctaw Nation has advocated for Lexi to live with her family since 2011. Her relatives have been a part of Lexi’s life for almost five years -- visiting her in California and making regular Skype calls. Lexi has also been on extended visits to Utah.

Many steps have been taken by the Choctaw Nation to ensure the best placement of Lexi. An independent clinical psychologist was brought in to gauge her ability to transition from the foster home to living in Utah. The California court appointed a marriage and family therapist to perform a child custody evaluation to assess the mental health and parenting practices of both parties. The experts, along with Lexi’s long-time therapists, her social worker and her attorney, all agree it is in her best interest to be with her relatives.

The case was decided in the California court system three separate times, with three different trial court judges ruling in favor of Lexi’s relatives in Utah, the Choctaw Nation statement also said, noting that the Pages have filed appeals three times to keep Lexi.

"Lexi’s safety and well-being are the Choctaw Nation’s paramount concern," the statement added. "Her family will provide her a safe, stable and nurturing home to grow up with her sisters and to have contact with her extensive extended family."

The courts have decided that Lexi will live with non-Native American relatives of her birth father through marriage. The Pages have filed an appeal in the California Supreme Court.

The Pages' legal team sent this statement to ABC News:

What happened [Monday] should never happen, to any child. A happy, thriving six-year-old girl was forcibly removed from the people she knows as her parents because of a terribly misguided interpretation of a federal law that was designed to keep families together, not tear them apart. We are appealing the decision, and we have asked the state Supreme Court to step in and halt this hasty change in custody before it causes irreparable harm. We will continue to expeditiously pursue our appeal through the state courts in California, and, if necessary, to the U.S. Supreme Court. In the meantime, our clients hope that the family in Utah will follow through on their promise to keep Lexi in contact with her family in Los Angeles.

The Pages noted that the case "shines a bright light on the ways in which the [Indian Child Welfare Act] in its current form is routinely being misinterpreted, with devastating consequences for families and children. The result here is all the more senseless because placing Lexi with her non-Indian extended family members does nothing to further ICWA's purpose of keeping children connected to their tribes."

The legal team noted that Lexi was placed in foster case with the Pages "after she had suffered two years of neglect and abuse. The Utah family had never met Lexi at that time; and the tribe agreed there was good cause to depart from ICWA's placement preferences."

Lexi has celebrated four birthdays with the Page family and "has woken up in their home every Christmas morning she can remember," the legal team also noted, adding that "Our clients have been the only consistent source of love, nurturing, parenting, and protection she has received her entire life."

The Pages' legal team also argued that Congress did not intend ICWA's placement preferences to be used to remove a child from a loving home in these circumstances and that they were designed to give state courts flexibility to depart from the placement preferences where there is "good cause" to do so.

"If the good-cause exception isn't satisfied in this case, it is difficult to imagine when it ever would be," the Pages' legal team said in its statement.

Applying ICWA to children who had no prior connection to any tribe raises grave equal protection concerns, the legal team argued, referring to the U.S. Supreme Court's 2013 decision in the case Adoptive Couple v. Baby Girl.

"The bottom line is that children subject to ICWA are second-class citizens, by law. They do not get the same best-interest-of-the-child standard that applies to all other children," the Pages' legal team said in its statement.