Natives end custody battle

Tuesday, Jul 20, 2004

From Tuesday's Globe and Mail

One of the most significant child custody battles in Canadian history is all but over, and the two little girls at the centre of it now appear destined to remain with the foster families who want to adopt them.

The youngsters, the progeny of a native mother and a white father, have been in limbo for 18 months as their birth mother's home band, the Squamish Nation of British Columbia, supported by the Hamilton Children's Aid Society, fought to have them returned to the band.

But yesterday, band lawyer Ian Mang told Mr. Justice George Czutrin of the Ontario Superior Court that the band was abruptly abandoning its application to have the girls moved across the country.

The unexpected move came just three days after the band learned that its proposed caregiver for the girls has moved in with her boyfriend and away from the Squamish reserve in North Vancouver.

The woman is 52 and, like the two sets of foster parents, is white. As with all the other parties in the case, she can't be named to protect the identity of the children.

She had been touted by the band and the CAS as the best answer for the youngsters. She already acts as a paid foster parent for the girls' little brother, and until the recent move to a B.C. town east of Vancouver, lived near, though not on, the Squamish reserve.

The band's "plan of care," as it's called, emphasized that by living with the woman, the girls could "grow up Squamish" and be fully exposed to their native heritage.

But the plan came under withering attack by lawyers for the two foster families, Jeffery Wilson and Yolanta Lewis, over the past few months. In cross-examination of witness after witness, including the proposed caregiver, the lawyers revealed that the real focus of the plan wasn't the best interests of the children, but rather the flexing of the band's cultural muscle.

By withdrawing its application, the band effectively now supports the immediate adoption of the little girls, who are almost 4 and 5, by the two sets of foster parents. So does the Ontario Office of the Children's Lawyer, whose lawyer, Catherine Bellinger, has been among the most articulate advocates in court for the girls.

Inexplicably, the only holdout -- and the lone party now stalling the adoption -- is the Hamilton CAS, the very agency that originally had supported the foster parents, only belatedly switching horses when the band at the last hour announced it opposed the adoption, and apparently then only out of fear the agency could be accused of "cultural arrogance."

CAS lawyer David Feliciant told Judge Czutrin yesterday the agency would not agree to the adoption before a home study is done on both sets of foster parents, but that he would not be calling any evidence.

Mr. Wilson then tried to call CAS executive director Dominic Verticchio, but he is on vacation in Italy, and Cecilia Taylor, the agency's former director of children's services, who was also unavailable. The two CAS staff in court, the communications director and the current director of children's services, were then summoned to the witness box. But neither one had any firsthand knowledge of the case and had never even met the two little girls.

In the end, a furious Mr. Wilson renewed his application for the judge to make a summary judgment -- basically, to end the evidence-hearing part of the proceeding and order the adoption to go forward.

Judge Czutrin reserved his decision, but promised to release it by week's end.

At bottom, the developments yesterday mean the CAS is, if not supporting a plan that no longer exists, at the least is still stubbornly resisting one that the Squamish band now endorses.

Also before Judge Czutrin now is an agreement that would see the two families and band representatives hold a "healing circle" to restore the dignity of the various battling parties and ensure that the Squamish have regular access visits to the youngsters.

Yesterday, the youngest girl's would-be adoptive mother tearfully embraced one of the band's hereditary chiefs, who has been in court monitoring the case.

For the foster parents, the case has seen their lives put on hold and subjected to enormous stress. One couple, who have had the youngest girl with them since she was eight days old, have been brought to the brink of financial ruin, forced to sell their house and move to a smaller one.

The other couple, in whose care the older girl has by all accounts done wonderfully, told The Globe and Mail yesterday they could not have continued had Mr. Wilson not been working for them for free.

"I don't know why he's stuck around," the foster mother said gratefully, "because we sure haven't been paying him. He's [Mr. Wilson] like 10 men rolled up in one little guy. He's like Superman, and there's no kryptonite for him."

The foster father, meanwhile, said yesterday that the court battle "has consumed us, to some extent, as much as we tried to keep it from the kids. And as much as we had a lot of people cheerleading for us, it just seemed like it wasn't going to happen. It seemed like we weren't going to be able to do it." His voice thickening with emotion, he said, "We look at this little girl, and how much she's blossomed -- she's what kept us going forward."

Both sets of foster parents are ordinary working people who had no idea when they first began that they were up against not only the enormous bureaucracy of the agency, but also a wealthy native band -- its settlement with the federal government was worth $92.5-million -- whose leaders testified that they would spend basically whatever it took to get the little girls. At one point, the band even proposed flying the judge and the lawyers to visit the reserve.

The children's natural parents, both of whom have severe alcohol and drug problems, never showed up at the court proceeding that, in the fall of 2001, saw the older girl declared a Crown ward. Neither did any representative from the band. The girl had been seized by the Hamilton CAS about a year earlier, when she was about a year old. Her baby sister tested positive for cocaine at birth, and was also apprehended by the agency. Their little brother was also later removed from the mother's care. And at trial, Judge Czutrin learned that the woman had recently given birth to a new baby in Alberta -- and that though the band learned about the new child last February, had still not alerted authorities there.

Always driving the case was that the foster parents are white and that adoption of native children by white families is considered "cultural genocide through assimilation."

Against that were two stable families, filled with love, and the only homes the little girls have ever known and where it now appears they will stay.