COCAINE-ADDICTED BABY GIVEN BACK TO MOTHER ON INDIAN LAW

Legislation Seen As Protection; 'I Have No Choice,' Judge Says

A young mother who admitted she used cocaine on the day she went into
labor was awarded custody of her child Friday based on a law designed
to protect American Indian children.

While most mothers of cocaine-addicted babies would face termination
of their parental rights, the 18-year-old Alaska native was reunited
with the infant who was taken by social workers six months ago when
they discovered the child tested positive for drugs.

"This case concerns me because we had a very serious removal," state
District Judge John L. Sholden told attorneys in his 304th District
Court before ruling the child would be returned to the mother. "It
pains me I have no other choice."

The judge had no other option because of the federal Indian Child
Welfare Act, which makes it tougher to remove American Indian children
from their homes even when neglect and abuse may be obvious.

The legislation came in 1978 because American Indian children had been
removed from their homes at higher rates - 35 percent of all Indian
children in some states - and required to live with non-Indian parents.

Despite the fact that American Indians and Alaska natives make up less
than 1 percent of the Dallas-Fort Worth population, welfare cases
involving Indian children are starting to surface more often, posing
significant challenges to child-care workers and attorneys.

"It's starting to come up more and more," Judge Sholden
said.

Paul R. Shunatona, a Dallas lawyer considered an expert on ICWA,
agrees. "It is becoming more visible," Mr. Shunatona, said of the law.

"We generally see more cases involving the Indian Child Welfare Act in
the Panhandle and around the Dallas-Fort Worth area," said Geoff Wool,
spokesman for the Texas Department of Family and Protective Services.

And as these cases surface, more attorneys and child-care workers in
the Dallas area are schooling themselves fairly quickly on the law
that trumps all state child-care protocol when it comes to removing a
child from a potentially abusive situation and requires them to do
several things they are not used to doing.

In Friday's case, the Texas Department of Family and Protective
Services failed, among other things, to put up an expert on the
mother's tribe - the Tlinget and Haida Indian tribes of Alaska - to
testify on their customs and culture.

The name of the mother is being withheld because it would identify the
child.

"The lack of a tribal expert was a significant factor," Mr. Wool said
of Judge Sholden's ruling.

"Other things contributed to that. It was not merely that we didn't
have a tribal expert. We apparently had not taken active efforts to
offer rehabilitative services to prevent the breakup of the Indian
family."

The woman was granted this second chance not because she had proved
herself capable and drug-free to the court, though she is now involved
in a rehabilitative program, her lawyer said.

Attorney Douglas R. Dunn admits there may appear to be some inequity
in the federal law.

There's a reason for it, he said. "The Indian people have been treated
differently over time."

The mother beamed after the judge told her that her baby would be
returned to her by 5 p.m.

Before declining to comment further, she said, "I'm kind of in
shock."