Canadian Court Says Infant Must Stay Put

A Canadian appeals court judge ruled Friday that the part-Aleut baby of a young Cypress woman will remain with prospective adoptive parents in British Columbia until legal arguments over her fate are resolved.

The decision by Justice Patricia Proudfoot of the British Columbia Court of Appeal is similar to a ruling by Orange County Superior Court Judge Robert J. Polis, who is also hearing the case of 7-month-old Rebecca Argleben.

But Polis’ order applies only through Jan. 29, when another hearing is scheduled to discuss the baby’s temporary placement, pending further legal arguments in Orange County. Proudfoot’s ruling is in effect until the appeal of the Canadian case can be heard in Vancouver, B.C., probably not until May or June, attorneys said.

The parallel legal moves in two countries left lawyers uncertain about which judge will ultimately decide the placement of the baby, whose mother, Jodi Argleben, 18, wants to give her up for adoption.

Karen Nordlinger, the Canadian attorney who represents the prospective adoptive parents, said that under the legal principle of comity, judges in different jurisdictions generally try to respect each other’s rulings. But she said the ruling of a Canadian court is not binding on a U.S. court.

Argleben’s native Alaskan tribe wants the baby adopted by an Aleut family, citing a 1978 federal law giving Indian tribes the power of consent in the placement of Indian children put up for adoption. But Argleben has fought that power, saying she wants her baby reared by a non-Indian family.

Recently, Polis ruled that the law is constitutional, but he scheduled another hearing in February to determine whether a loophole in the law might allow Argleben to override the tribe’s wishes and decide who will raise her child.

The Canadian courts became involved in September, when Argleben smuggled Rebecca to Canada for adoption, hoping to avoid the reach of the Indian Child Welfare Act. The Aleuts challenged that adoption. A Canadian judge ruled earlier this month that he lacked jurisdiction to decide the case and ordered Rebecca returned to Orange County.

Nordlinger said Proudfoot told attorneys in Canada on Friday that an appeal of the lower court’s decision was “meritorious” and granted temporary custody and guardianship of Rebecca to the Canadian couple until the arguments on the appeal can be heard in the spring.