Utah Custody Battle Complicated By Native American Tribal Law

SALT LAKE CITY – Heather and Clint Larson hoped they'd be spending Christmas with a newly adopted 6-month-old boy.

Instead, after a months-long court battle, the couple had to hand him over to representatives of the birth mother's American Indian tribe and watch him being driven away.

"It was horrific. We lost our child," said Heather Larson, 29, of South Jordan.

The wrenching, personal struggle for both sides has been complicated by a jurisdictional fight over who has the authority to decide what should happen to the boy, named Talon.

Arguments have hinged on whether the boy should be subject to the Indian Child Welfare Act, a 1978 law designed to give tribes more control over decisions involving Indian children.

While legal details of most custody disputes are not readily available to the public, lawyers for both sides described the dispute for The Associated Press.

The boy, now in tribal custody, is in a suburban Minneapolis foster home with his two brothers, according to Frank Bibeau, an attorney with the tribe.

The Larsons, who had been taking care of the boy since he was born last summer, aren't giving up. "We're not done fighting," Heather Larson said.

But Talon's birth mother, a member of the Leech Lake Band of the Ojibwe Indian tribe, also is intent on regaining custody.

"He's my son, he's mine and my husband's son, he's the brother of my other children, he's the grandchild of my mom. He's ours," Natasha Roybal told KSTP-TV in Minneapolis.

The AP was unable to reach Roybal for comment.

The Larsons, their attorney and the adoption agency say the Indian Child Welfare Act shouldn't apply to the boy because he doesn't meet membership requirements.

The birth mother's attorney, Shannon Smith, said the woman is a member of the tribe and her two other children are treated as members. Smith said it's clear that Talon should be considered a member, too.

David Simmons, director of government affairs at the National Indian Child Welfare Association in Portland, Ore., said it looks like the Utah adoption agency didn't do enough investigating about whether the 1978 law would apply to Talon.

Denise Garza, director of Heart and Soul Adoptions in Farmington, Utah, which facilitated the adoption, said the agency acted properly and did its homework, but the birth mother wasn't upfront with them. Garza said she couldn't provide additional details.

"If the birth mom would have told us the truth from the very beginning, this whole thing would have played out very differently," Garza said.

She said the adoption agency has dealt with the Indian Child Welfare Act and Indian tribes in the past without major problems.

"We've never dealt with a case like this before," Garza said. "It's something you hope no one ever has to go through."

State officials, who haven't been involved in the case because it's a private adoption, said Heart and Soul's license is up to date and there have been no sanctions against it.

The Larsons, who have a 7-year-old son, were excited about the prospect of adding to their family. Earlier this year, Heart and Soul connected them with the pregnant Minnesota woman. Over the following months, Heather Larson and Roybal talked regularly, met in person in Utah and became friends.

Just before Talon was born, the Larsons learned he would likely struggle with drug-related problems after birth. It didn't deter them.

The birth mother came to Utah and Talon was born June 9, dealing with effects of prescribed methadone, according to Smith. He spent the next nine days in the hospital, most of them with the Larsons by his side.

A day after Talon was born, the birth mother relinquished her rights, Larson and Smith said. In Utah, unlike many other states, there's no grace period for backing out after the document is signed.

"When those papers were signed, it was a sigh of relief, a sigh of `Wow, this is really happening,"' Larson said. "We were able to let ourselves go and fall in love with him."

But a few days later, Roybal was full of regret. She wanted her baby back. "She didn't feel right about any of it," Smith said.

While she was in Utah giving birth, tribal officials in Minnesota began looking into reports that her two other sons weren't in a safe environment, Smith said. The tribe took custody of the two sons, according to Smith, and began looking into the boy born in Utah.

Bibeau, the tribe's attorney, said no one is questioning the Larsons' ability to care for the boy. "We're not saying the Larsons are bad people but victims of Heart and Soul," he said.

A tribal court in Minnesota decided in October that the boy belongs with the tribe. A state judge in Utah said she didn't have the authority to supersede the tribe, attorneys said.

The decision was finally made that the boy would leave Utah on Dec. 14. "We held him every minute of every day that we could," Larson said.

By then, Larson said Talon had gotten over his withdrawals and other health problems. He was sleeping through the night, happy and easygoing.

One of their hardest jobs was preparing their 7-year-old son Kade, who sometimes changed Talon's diapers, helped with baths and proudly showed him off to everyone at church. He relished having a little brother.

"He's waited his whole life for this," Larson said.