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Guardian / Foster Rift

March 12, 2015 permalink

Desi Elwell, age 12, needs heart surgery to ensure his survival. He has been living with his aunt Mandi Lumley-Sage in Tennessee for six years, but she cannot give permission because she is not his legal guardian. Guardianship rests with the Yakama Nation in the state of Washington. When Lumley-Sage approached the tribal court they not only denied her request but reverted custody of Desi back to his former (abusive) foster home.

This problem is intrinsic to foster care. Day-to-day care lodges in a foster parent without authority while authority rests with a social services system that at best sees the child monthly and at worst may be absent for years. Occasionally the rift can be life threatening. At least for Desi the problems have been worked out and in later news he has been scheduled for surgery. Two articles are enclosed.



Boy’s family says Yakama tribal court stands in way of heart surgery

Desi Elwell
Desi Elwell, 12, holds up a certificate proclaiming his promotion at the end of the school year in 2013. Desi is scheduled to have heart surgery next Friday, but is caught up in complicated custody battle within the Yakama Nation's tribal court and child welfare system.
Photo courtesy of Kevin Sage

Next Friday, 12-year-old Desi Elwell is scheduled for heart surgery — surgery his doctors say is essential to avoid risk of heart failure.

Desi, a former foster child from Yakima now living in Nashville, Tenn., with his two older brothers and their aunt, Mandi Lumley-Sage, has Tetralogy of Fallot, a four-part congenital heart defect. The condition makes his heart work overtime to pump properly oxygenated blood throughout his body, and he needs surgery to expand a narrowed artery.

While Nashville doctors agreed to schedule the surgery, according to Lumley-Sage, the hospital will not allow them to perform it without permission from tribal court because she is not the legal guardian.

Though she is the legal guardian of Desi’s brothers (her nephews), and though she has cared for Desi since a tribal welfare program placed him with her in 2009, and though she is an enrolled member of the Yakama Nation herself, Lumley-Sage has not been able to obtain legal guardianship of the boy.

What’s more, upon first placing Desi with Lumley-Sage, the welfare program specified that any medical surgical services for him “must be arranged” by the tribe’s child welfare program. Hospital consent forms routinely require the signature of the legal guardian in such cases.

Jurisdiction over his placement rests with the tribal court, and when she reached out in mid-February to get approval for the pending surgery, she says the court not only denied her request, but reverted custody of Desi back to his former foster home, where social workers documented malnutrition and abuse, according to a 2012 case summary by a tribal social worker obtained by the Yakima Herald-Republic. That home was not on the reservation nor were the foster parents tribal members.

“He’s developmentally disabled, and needs counseling to work through the excessive abuse he suffered in that home,” Lumley-Sage said, citing a recent evaluation by a social worker in Nashville, where she moved for a job in 2012, bringing the boys with her.

“(The court) told me I will not ever have standing in court again. I never had a hearing; never had notice.”

She has created a social media campaign, #iheartdesi, to bring attention to their story, and has gained news coverage in Tennessee and elsewhere. Photos and video show Desi and his siblings smiling and laughing as they caper around with Lumley-Sage and her husband.

Desi’s story comes less than a month after Yakima police found twin girls severely malnourished and abused in the home of their biological mother, where the tribal court had placed them in 2013 after seven years in a foster home.

The two cases highlight the complicated web of overlapping jurisdiction over tribal foster children, where well-intentioned policies aimed at keeping Indian children in tribal communities do not guarantee that decisions are made in kids’ best interest.

Records from Desi’s tribal court case and time in foster care are confidential, as are most child custody matters in state and tribal court. Attempts to contact the tribal court about the Lumley-Sage case were unsuccessful.

Sources familiar with the tribal court process in child welfare cases said the judge usually makes decisions based on the recommendation of case workers.

Why the court refuses to give Lumley-Sage a hearing on the surgery is unclear.

‘An exceptional caregiver’

Jurisdiction over custody of tribal children was established by the Indian Child Welfare Act, passed in 1978 to protect Indian children from being forcibly removed and placed with non-Indian families, where their heritage is often lost. The act prioritizes placement of children with relatives or another tribal family before nontribal foster homes. But courts are also supposed to consider proximity to home and extended family in placement decisions.

The Yakama Nation’s child welfare program is known as Nak Nu We Sha, and its social workers manage foster care for Indian children living on the reservation or coordinate with the state on case management off-reservation. Custody decisions, however, are made in tribal or state court, depending on family circumstances.

Lumley-Sage was granted full custody of her two older nephews in a kinship placement soon after they were born. They are now 14 and 15. Her brother, who is their father, struggles with addiction, she said, but loves the boys very much and wants her to be their guardian. Desi has a different birth father, not related to Lumley-Sage. The three boys’ birth mother is now deceased.

The case summary written by a licensed Nak Nu We Sha social worker in April 2012 calls Lumley-Sage “an exceptional caregiver,” and describes the condition Desi was in when he was first removed from his foster home in Yakima in 2009.

“When placed (with Lumley-Sage) at 6.5 years old, Desmond had never been to school, was not toilet trained and was diagnosed with malnutrition and had suffered abuse,” wrote licensed social worker Marlene Simla.

Simla, who specialized in placement, wrote that she had been familiar with the case since 1999, when Lumley-Sage received temporary custody of the older nephew.

Desmond, she added, was developmentally disabled and had been diagnosed with Fetal Alcohol Syndrome.

The case summary also notes that three of Desi’s siblings — not in Lumley-Sage’s care — had died. Lumley-Sage says that’s why the boys’ birth mother supported her guardianship.

“She felt the only way her kids would survive was in my care,” Lumley-Sage said.

Tribal court orders show she has sole custody of the two older boys. She does not have legal guardianship of Desi, though the same 2012 case summary indicates a social worker “facilitated a court order to enable Desmond to have proper care and relocate to the Nashville area” with Lumley-Sage.

Simla wrote that as of 2012, “We are pleased to say that Desmond is now toilet trained, he reads at grade level and was able to graduate from a special needs classroom to a normal classroom ...”

Her letter describes the lengths Lumley-Sage went to in caring for Desi’s next older brother, who was labeled a “medically fragile” baby and required constant care to monitor his feeding and breathing, and was hospitalized extensively during his first nine months of life.

Desi, too, is labeled medically fragile. He’s already had multiple surgeries to replace all four valves in his heart. Lumley-Sage says that if he can receive the pending surgery to expand a pulmonary artery while he’s healthy, and it goes well, he will be eligible for another surgery in a couple of years that would allow him to lead a more normal life.

But “normal” with Tetralogy of Fallot will never really be normal, says local cardiologist Dr. Dave Krueger, who practices at the Yakima Heart Center.

“It’s a serious heart condition,” involving missed connections between the two sides of the heart, he said. With proper care, people can live for up to 25 years post-corrective surgery, but the benefits are limited.

“I’ve never seen a Tetralogy of Fallot older than 40,” said Krueger, who has not treated the child.

Murky finances

Lumley-Sage is not formally a foster parent, so she does not receive money from the state to care for Desi and his brothers. Desi’s medical bills are covered by Social Security.

But his prior foster parents presumably were paid by the state Department of Social and Health Services to care for Desi and other foster children, though they would have been licensed by Nak Nu We Sha if they were caring for tribal children. The rates set by the state per child range from $400 to $1,300 per month, depending on the child’s age and disability.

Though she doesn’t have documentation, Lumley-Sage says Desi was in the top tier of payouts, as he is considered medically fragile, terminally ill and developmentally disabled. The larger payments are given in recognition of the extra challenges inherent in caring for special needs kids, not for their medical care, which is covered by the government. Foster parents are also eligible for money to cover child care costs and small payments for clothing, school fees and other financial needs.

State funding can go directly to foster parents to care for children, or paid to Nak Nu We Sha to administer programs. It’s not known in this case how Desi’s foster home was paid. Calls to Nak Nu We Sha director Ray Olney were referred to the Tribal Council media committee and chairman JoDe Goudy, who has not responded to multiple calls.

Nak Nu We Sha may have a financial incentive to keep children in the court system, because as long as the child has a pending case there is state funding for his or her care, several sources close to the highly confidential process told the Herald-Republic. But children placed with relatives, like Lumley-Sage’s guardianship of Desi’s brothers, trigger no such funding. It may be that keeping Desi in legal limbo keeps him eligible for state funding, although it has not reached him in recent years, Lumley-Sage said.

News stories this year and in the past have revealed nightmarish situations in which licensed foster care providers accept kids purely for financial reasons, such as the Spokane woman convicted in 2008 for criminal mistreatment that resulted in a young boy’s death by dehydration. Prosecutors alleged that she took in foster kids to pay her mortgage and kept them malnourished and sick so they would receive larger support checks.

Nak Nu We Sha has been questioned before about how it manages its finances. In 2012, two former employees of the tribe’s social services department claimed that they were fired after reporting corruption, specifically that one-time payments intended for foster families with financial need were instead going to program employees and relatives.

One of those employees, Robert Ramirez, former deputy director of the tribe’s social services, is still concerned by what he saw.

“Some of the foster home placements need to be looked into for the proper care of the vulnerable children that are being placed,” he said.

He said he was also concerned that some foster families were receiving foster care stipends despite not having any children in the home, though he was unable to get concrete proof.

Management in Nak Nu We Sha needs to have greater knowledge of individual cases and their history so they can make informed placement decisions, he said.

What next?

Lumley-Sage won’t describe all the abuse Desi allegedly suffered in his previous home; he was apparently kept in his bedroom by a baby-gate across the door, and when he was allowed out, was taped under a laundry basket on the floor. She just wants to follow through with the social worker’s recommendation of intensive therapy to help him sort through his past.

She says the tribal court did not give a deadline for returning Desi, and she’s not sure what lengths the tribe will go to get him back, as he is now living out of state, or what law enforcement agencies may become involved. She is currently meeting with attorneys to advocate for her in gaining guardianship of Desi and moving forward with medical care for him.

Lumley-Sage knows that speaking openly about a foster care case may further stress relationships between her and tribal leaders, but she is hoping that public accountability in this situation will motivate the court to grant approval for Desi’s surgery.

“I’m not doing this to hurt tribal people and tribal children,” she said. “I’m doing this to help tribal people and tribal children,” she said.

Source: Yakima Herald-Republic

Permission granted: Yakama boy will receive needed heart surgery

After a tumultuous few days, word came Thursday evening that Desi Elwell, the 12-year-old Yakama boy whose complicated custody battle threatened a critical heart surgery, will be getting the procedure next week after all.

“This is thanks to the community coming together — the community fought and saved a life,” Mandi Lumley-Sage said by phone from Tennessee, where she moved in 2012 with Desi and his two older brothers, who are her paternal nephews. The family has seen an outpouring of support on social media this week, followed by a story Thursday in the Yakima Herald-Republic and television reports in Tennessee and elsewhere.

The Yakama Nation tribal court granted Lumley-Sage ex parte guardianship of Desi on Thursday, giving her the ability to legally consent to Desi’s heart surgery, which is scheduled for March 13.

Ex parte guardianship is temporary, meaning she is only his guardian for 30 days. A hearing is scheduled for March 24 to determine what happens next.

Doctors in Nashville had scheduled the surgery, but they required a signature from a legal guardian in order to perform the procedure.

Documents from the Yakama Nation tribal court show Lumley-Sage’s petition for guardianship of Desi, dated Nov. 12, 2014, was signed March 5, 2015, by Yakama Judge Lorintha Umtuch.

The document indicates that Nak Nu We Sha, the tribal child welfare program that oversees child placements, shall supervise the guardianship “as needed.”

“I’m so thankful for the outcome for Desi,” Lumley-Sage said. She’s grateful for the court’s decision, which judges told her was made on an emergency basis because of Desi’s imminent need for surgery.

The heart surgery, the latest of several for Desi, who was born with the congenital heart defect Tetralogy of Fallot, is needed to widen a narrowed artery to allow his heart to pump properly oxygenated blood throughout his body. Without it, he would be at risk of heart failure.

“I do agree with (the court) on this, that when you have a child that has a life-threatening situation, you have to step in in an emergency,” Lumley-Sage said.

However, she said, “I’m still heartbroken for the rest of the children who have not had a voice” in custody battles such as this.

Source: Yakima Herald Republic