Court Blocks Return of Adopted Twin Girls : Custody: Appellate decision delays order to turn siblings over to their birth parents. It questions constitutionality of federal act on Native American children.

A state appellate court has raised serious questions about the constitutionality of a federal law designed to help Native Americans preserve their families and tribes--a ruling that will temporarily allow a white Ohio couple to keep custody of twin 20-month-old girls.

This week’s order by the 2nd District Court of Appeal thrilled adoptive parents Jim and Colette Rost of Columbus, Ohio, and cast a pall over the birth family, which lives in Long Beach. The birth parents and Native American activists nationally said the action could threaten the special right of Native American tribes to sustain their memberships.

The Indian Child Welfare Act attempts to protect that right by requiring that Native American families and their tribes be given the first opportunity to adopt Native American children before they can be placed in non-Indian homes.

In its preliminary order Wednesday, the court set a hearing for October on a wide range of constitutional and other issues related to the federal law. It is expected to issue its final ruling sometime next year.

Lawyers on both sides of the case said that concerns raised by the court in its interim order Wednesday indicate that it is tilting toward the adoptive parents and against the birth parents, Richard (Rick) and Cindy Adams of Long Beach.

The Ohio family savored its first substantial victory since the custody dispute over twins Bridget and Lucy began when the girls were 3 months old.

“It feels like maybe we have turned a corner,” Colette Rost said in a telephone interview. “We have gotten nothing but bad tosses from the courts so far and I feel like now somebody is really listening to the issues we think are important. They will actually listen to what is in the best interests of Lucy and Bridget.”

But the lawyer representing 22-year-old Cindy Adams, who is trying to regain the girls she gave up at birth, called the court’s order “very disturbing.”

“It’s an attack on the Indian Child Welfare Act,” said Gerald Klausner, who represents Cindy Adams. “It seems [the court has] put a mountain in front of us and said, ‘You climb over this if you want to get some relief.’ ”

The case originated in the 1993 adoption of the twin girls. They were put up for adoption by the Adamses, who were then just out of their teens and struggling to make ends meet.

A Beverly Hills adoption lawyer arranged for the couple to meet the Rosts before the birth of the girls. The middle-class Ohio couple had one daughter but wanted to adopt because they could not conceive any more children. An agreement was reached in which the Adamses gave up the girls in exchange for payment of $10,000 for the birth mother’s expenses.

Everything went according to plan until three months after the births, when biological father Rick Adams suddenly said he was a Native American and wanted to reverse the adoption under the 1978 federal law that gives Native Americans extraordinary powers to preserve their families.

At a hearing in Los Angeles Superior Court, the trial judge ruled that the twins should be returned to the birth parents immediately. That action caused an uproar in the so-called children’s rights movement, where activists said the judge had ignored the best interests of the children. But Native American groups hailed the ruling, saying that their culture has been devastated by such adoptions.

The ruling was stayed by the appellate court, allowing the Rosts and the two girls to return to Columbus and a tumultuous welcome from neighbors who have been raising money for their legal expenses, which have exceeded $160,000.

The three-judge panel raised 11 questions about the trial court decision, many centering on the constitutionality of the act. Among the issues posed by the court were whether the law:

* Can be applied when it “appears that neither the children nor the birth parents have a meaningful connection with Indian tribal or family life and where their primary cultural heritage is other than Indian.”

* Exceeds federal authority and tramples on the state’s power to regulate adoptions.

* Usurps the twins’ due process rights “in that children are not merely chattel of the parents and/or the tribe but have their own fundamental liberty and privacy interest in a stable, permanent and secure home.”

* Prevents birth parents from making post-adoption claims of Native American heritage “in order to prevent the harm to the child caused by such disruption of their security through transfer of custody to strangers.”

The three justices also questioned whether the Rosts should have been allowed to raise the issue of whether the Adamses would be fit parents because they had essentially abandoned the girls.

While the exact native lineage of the birth parents has been disputed, Rick Adams says he is one-quarter Pomo Indian, a tribe native to Northern California, while Cindy Adams says she is half Yaqui, a tribe of the southwestern United States.

They said the questions about their lineage and commitment to their culture are insulting and should be left to Native Americans themselves.

“It’s very disturbing, “ said attorney Arnold L. Klein, who was appointed by the court to represent the twins and who sides with the birth parents.

“It’s like trying to determine who is a good Catholic or a good Jew. The function of the government is not to assess those things. There is not one Indian on this court who is going to know how to assess those things.”

The Oregon-based National Indian Child Welfare Assn. will file a brief in the case noting that the constitutionality of the child welfare law has repeatedly been affirmed since its passage in 1978.

This [ruling] sends off alarm bells,” said Jack Trope, who represents the group. “It is surprisingly broad and doesn’t seem to recognize the special political status of Indian tribes and their sovereignty.”