But that’s where the 42-year-old parents found themselves Wednesday outside Fort Worth as the lead plaintiffs in a federal lawsuit challenging the constitutionality of the Indian Child Welfare Act — a law passed by Congress in 1978 that prioritizes the placement of Native American children in foster or adoptive homes with clan relatives.
In June 2016, the Brackeens first welcomed a 9-month-old boy, named ALM in court records, into their home as a foster child. It was an infant who seemed “scared and confused,” Jennifer and Chad told The Post. But since the baby had a Navajo mother and a Cherokee father, state adoption authorities told the couple he would likely be in their home for only months.
Known as ALM in court documents, this smiling 9-month-old Native American boy came to live with his white foster parents in June 2016 — and they later officially adopted him.YouTube Although they don’t share a heritage with the “loving and thriving” boy, Chad and Jennifer Bracken were granted custody as “the only parents he ever knew.”
The Brackeens then sought to formally adopt the “loved and thriving” boy in June 2017, after the rights of both of his biological parents were terminated.
“We were the only parents he knew,” the couple told The Post. “Although we do not share his legacy, we have learned to embrace it, encourage it and promote him and his legacy. It was in his best interest to stay in our family.”
The Brackeens later learned that Navajo Nation social workers had found an unrelated tribal couple from Arizona who were the preferred placement for the boy. Despite experts testifying about his attachment to Jennifer and Chad, a Texas judge ruled in favor of the tribe.
“With just 2 days notice, we were told our son would be leaving our family forever,” the Brackeens said. “It was here that we felt the full brunt of the flaws in this law.”
Although experts testified to the bond the Brackeens built with the boy, a judge decided to place him with a native family, resulting in the couple receiving emergency residency. YouTube
The Texas couple obtained an emergency stay of the judge’s order and proceeded to file the federal lawsuit that is now being heard in the Supreme Court. Navajo Nation tribal officials later approved the adoption on Jan. 8, 2018 — a “day to be celebrated” for the Brackeens, they said.
But the family’s adoption saga took another turn in June 2018 when ALM’s biological mother gave birth to his half-sister, identified in court documents as YRJ Jennifer and Chad filed for custody, arguing that keeping the siblings together would be best for them, but the Navajo Nation countered by asking for custody to go to the girl’s aunt who lived on a reservation.
When the Brackeens learned their adopted son had a half-sister, they sought custody of her as well. But the Navajo Nation wants the girl to live with her aunt. Chad Bracken
A Texas judge ruled that the Brackeens would have primary custody, but they had to take the girl to the Navajo reservation for extended summer visits. A state appellate court later ordered a new trial when both sides appealed the ruling.
The Brackeens insist the child welfare law meant to protect Native American children, including the 4-year-old girl, is “outdated” and fails to put her best interests first.
The Brackeens claim in their lawsuit that a law intended to protect Native American children by giving priority to adoptive parents who are Native American is “outdated.”
“It’s extremely important for our children and Indigenous children across the country,” Chad Brackeen said of the high court’s decision in the case. “We feel that the law needs to be revised in a way that will benefit the best interests of all children.”
There is no danger that the Brackeens will lose custody of their adopted son, who is now 7, but the Supreme Court’s decision in Brackeen v. Haaland — expected sometime next spring — could affect the final placement of his half-sister. A Texas family court hearing regarding the girl’s adoption is set for December.
The fate of the boy’s now 4-year-old half-sister is up in Texas family court, where a trial is set for December.
“As parents, of course, we’re concerned because this is about our family and the effects of this could drastically change our family,” Jennifer Brackeen, an anesthesiologist, told The Post. “But we’re trying to stay optimistic because we’re not ready to deal with the consequences if we don’t succeed.”
Chad, visibly troubled by the prospect, said he is “hopefully optimistic” that the family of six, including the couple’s two biological sons, aged 13 and 11, will remain intact.
“I don’t think anyone could prepare,” he said of losing custody of a child he’s lived with since infancy. “This would be an earthquake for our family.”
Nearly 500 of the 574 federally recognized tribes want the Supreme Court to uphold ICWA, and 23 state attorneys general, including Letitia James of New York, announced their support for the law in a brief filed in August.
Losing custody of a girl who has lived with them since infancy “would be an earthquake for our family,” Chad Bracken told The Post.
The bipartisan coalition also struck down the Brackeens’ claim that ICWA “impermissibly classifies individuals on the basis of race” in violation of the Fourteenth Amendment’s equal protection clause.
But Chad said his family’s experience shows that ICWA — which requires state courts to try to keep native families — is harming the very children it was designed to protect and risks removing them from “loved” homes. where they have already bonded with adopted families.
Legacy is important to a child, Chad said, “but not at the expense of repeatedly breaking bonds and attachment.” And current law allows for that risk, he said.
“There is a law that affects us that jeopardizes the established bonding, bonding and loving home that our children are in because of their Indianness,” she said. “Family and heritage are important to a child, but not at the expense of repeated severing of bonds and attachment.”
Jennifer insists that it would be inhumane to separate YRJ from the family, especially her half-brother.
“As a mom, the bottom line for me is that it’s tough to take a child away from home after they’ve bonded and started a family and see us as their mom and dad,” she said. “We’re trying to take it one day at a time, which is what we’ve tried to do for the last five years.”
