Adoption Attorney Donald Cofsky Warns of New Court Case Affecting Indian Child Welfare Act

HADDONFIELD, N.J., Nov. 26, 2018 /PRNewswire/ -- The Law Offices of Cofsky & Zeidman, LLC (https://www.209law.com/) recently alerted that the Federal District Court for the Northern District of Texas has issued a ruling that found the Indian Child Welfare Act (ICWA) unconstitutional. This ruling has repercussions which could affect all current and future adoptions of Native American children across the United States.

"This is a blockbuster decision, the full effect of which we are only now beginning to process. States have adhered to the Indian Child Welfare Act for almost 40 years. Though it has been challenged in the past, this is the first time the Act has been declared unconstitutional. This decision will almost surely be challenged and heard by the U.S. Supreme Court," said attorney Donald Cofsky.

ICWA was passed by Congress in 1978 to stop state child welfare agencies from intruding onto Native American reservations and removing children who were allegedly victims of abuse or neglect, and placing them off the reservations with non-Native American families. Congress found those actions were occurring too frequently and were improper.

Passing ICWA, Congress recognized and gave the sovereign-nation status of federally recognized Native American reservations far more deference, requiring state agencies to alert and involve the tribes whenever such child welfare cases occurred, and to give tribal families preference when placing children in foster homes or for adoption.

However, on October 4, 2018, the Federal District Court for the Northern District of Texas issued a ruling which effectively blocks ICWA, citing multiple factors for its decision. The court found that ICWA violated the equal protection rights of U.S. citizens, stating that the placement preferences and other provisions in ICWA are unconstitutionally race-based in nature, and that ICWA unconstitutionally delegates authorities reserved for the federal government to tribes.  

The court additionally stated that ICWA required states which are separate entities themselves, to take actions which are the duty of the federal government, and pay for them, which the federal government cannot mandate the states to do. Finally, the court found that the recently issued regulations by the Bureau of Indian Affairs of the Department of the Interior were void, since they were based upon an unconstitutional law, and did not comply with the Administrative Procedure Act.  A request of the tribes for a stay of the court's order was recently denied by the trial court judge.

The ultimate wide-reaching effects of this ruling are somewhat unclear right now. But with the expected flurry of adoption, foster care, and custody court cases that are now anticipated because of this ruling, engaging an experienced adoption lawyer well versed in ICWA matters will become a necessity.

Donald Cofsky is an attorney who brings a depth of experience, knowledge, and respect to cases dealing with such issues. Mr. Cofsky recently completed his term as President of the American Academy of Adoption Attorneys. During his tenure, Mr. Cofsky oversaw the Academy's participation in the drafting and enactment of the federal Accuracy for Adoptees Act, which authorizes correction of birth certificates of foreign-born children adopted by U.S. citizens.  Mr. Cofsky was also involved in the Academy's participation as an amicus in the United States Supreme Court case of Adoptive Couple v. Baby Girl out of South Carolina in 2013. The case specifically involved the Indian Child Welfare Act and the rights of individuals relating to preferences in adoptive placements. 

About Cofsky & Zeidman, LLC

The Law Office of Cofsky & Zeidman, LLC brings over 25 years of experience to every case it handles, specializing in family formation through adoption and assisted reproduction.   Donald Cofsky is certified by the Supreme Court of New Jersey as a Civil Trial Attorney, and is the Managing Member of Cofsky & Zeidman, LLC in Haddonfield, New Jersey. He concentrates his practice in trial work and family formation, including through adoption and assisted reproduction technology (ART), and has received "A" and "V" ratings by Martindale-Hubbell, its highest for both ability and ethics.  In 2005 he was named as an "Angel in Adoption" by the Congressional Coalition on Adoption in Washington, DC.

Learn more about Cofsky & Zeidman, LLC at: www.209law.com.

Contact:

Donald C. Cofsky, Esquire
856-429-5005
[email protected]

SOURCE The Law Offices of Cofsky & Zeidman, LLC