A Minnesota woman who is a member of a local Native American tribe cannot be denied her right to petition the court to regain custody of her 12-year-old son, the state Court of Appeals ruled on Feb. 21. The court cited a federal law intended to keep Native American children within their tribes when possible. Prior to the ruling, an Aiken County judge had denied the mother's petition based on a history of substance abuse and criminal charges filed against her.

The law in question is the Indian Child Welfare Act, which sets a high standard for finding that a parent who is a member of a Native American tribe is unfit to have custody of his or her child. The purpose of the law is to encourage tribal identity and culture to pass down from parents to children, as long as the children are not at risk of "serious emotional or physical damage" while living with their parents.

The woman who appealed the trial court's denial voluntarily terminated her parental rights over her son in 2006. The boy was adopted in 2008, but the adoptive parent gave up custody a year later and the boy was placed in foster care. The boy, who suffers from several behavioral disorders, appears to be doing well living with his foster parent, a Native American who is not a member of the Mille Lacs Band of Ojibwe like the boy and his biological mother are.

The Minnesota Court of Appeals found that the trial court did not consider any current evidence of the mother's fitness to raise the boy. Also, the ICWA requires expert testimony to determine that the child is at serious risk of harm if reunited with the parent to rule against the parent, which did not happen in this case, the court ruled.

Source: Minneapolis Star Tribune, "Ojibwe mother may seek custody of son," Abby Simons, Feb. 21, 2012