Turtle Talk

We are told that the following report contains numerous inaccuracies, so please take the description of the case with a grain of salt. The majority opinion is here. The concurring/dissenting opinion is here.

From MIRS:

Federal Law Keeps Indian Mother, Baby Together

A Native American mother with a history of dating abusive men will be allowed to keep her newborn daughter, despite the cries of state social workers that a reunification could put the baby in physical and emotional danger.

The Court of Appeals ruled today that [Mother] should be given custody of 11-month-old [Daughter] based on a strict federal law the stresses the preservation of Indian households.

A ruling signed by appellate judges William WHITBECK and Jane MARKEY reverses a lower court ruling by saying that social workers didn’t do everything it could have under the Indian Child Welfare Act (ICWA) to keep the family together.

[Mother] of the Sault Ste. Marie Tribe of Chippewa Indians has given birth to three children. Her oldest son, was killed in 2005 by a blow to the head in what investigators believe was a homicide on a day only [Mother] and her then-boyfriend were watching the boy.

After the death, the Department of Human Services (DHS) took away [Mother’s] second child, [Redacted], after the mother failed to comply with her service plan. When [Dauther] was born, DHS again stepped in and urged the court that the newborn be removed from [Mother’s] care, even though the mother told the court she had turned her life around and was with a new, non-abusive boyfriend.

But the Court of Appeals pointed to ICWA, which was put in place out of concern that American Indian families were being disproportionately separated more than non-American Indian families. Under ICWA rules, a court must find “beyond a reasonable doubt” that a child is likely to incur in serious emotional or physical damage if kept with the parents and that “active efforts” must be tried first.

In this case, the separation of [Daughter] was not viewed through this lens and cannot take place. Judge Elizabeth GLEICHER wrote in a separate opinion that she, too, would have reunited the baby with her mother based on ICWA, but wrote separately because she disagreed with the majority’s interpretation over some of the details of ICWA.

NOTE: I personally redacted the names contained in this article.  If you are inclined to learn the names of those involved, you may subscribe to MIRS or view the opinion yourself.