Transfer to Tribal Court Case from Iowa Supreme Court [ICWA]

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This is a very useful decision directly addressing one for the most difficult parts of a transfer process–whether the state court will use a best interest analysis to determine jurisdiction.

These are not reasons to deny a tribe jurisdiction over a child welfare case:

The State argued that transfer should be denied because of the lack of
responsibility by Mother and Father, the efforts of the foster parents to promote
the children’s Native American heritage, and the good relationship between the
current professionals and the children. The guardian ad litem for the children
joined the State in resisting the transfer of the case to tribal court.

Oh, and would you look at that, a CASA:

The juvenile court noted that the court appointed special
advocate (CASA) for the children recommended that the parental rights of the
parents be terminated and the children continue living with the foster parents.

But don’t worry–the Iowa Supreme Court clearly channeled the Washington Supreme Court in its thoughtful discussion of ICWA and its purpose, summarizing that

The federal ICWA and accompanying regulations and guidelines establish a framework for consideration of motions to transfer juvenile matters from state court to tribal court. Although good cause is not elaborated at length, both the statute and regulations state in some detail what is not good cause. Absent an objection to transfer or a showing of unavailability or
substantial hardship with a tribal forum, transfer is to occur. Clearly, Congress
has an overall objective in enacting ICWA to establish a framework for the preservation of Native American families wherever possible.

The Court goes on to discuss the Iowa ICWA at length, along with some bad caselaw in Iowa, specifically the In re J.L. case, which is a really awful decision and has been a pain to deal with for years.

This Court states,

State courts have struggled with the statutory question of whether federal
or state ICWA statutes permit a child to raise a best interests challenge to
transfer to tribal courts. In In re N.V., 744 N.W.2d 634, we answered the
question. After surveying the terms of the federal and state ICWA statutes, we
concluded that the statutes did not permit a child to challenge transfer on best
interests grounds. Id. at 638–39.

***

In short, there can be no substantive due process violation arising from a
statute that refuses to allow a party to present on an issue irrelevant to the
proceeding. To that extent, we overrule the holding ofIn re J.L. (emphasis ADDED)

***

In conclusion, if there is no objecting child above the age of twelve, we hold
that the transfer provisions of ICWA which do not permit a child from raising the
best interests of the child to oppose transfer does not violate substantive due
process.

Therefore,

In an ICWA proceeding, the United States Supreme Court observed that
“we must defer to the experience, wisdom, and compassion of the . . . tribal
courts to fashion an appropriate remedy” in Indian child welfare cases. Holyfield,
490 U.S. at 54 (quoting In re Adoption of Halloway, 732 P.2d at 972). These
observations apply in this case

There is a small dissent on whether the Father could appeal this case, but no issues with the Tribe’s appeal. Also, a reminder that the issue of jurisdiction was never a question Brackeen and decisions like this one are tremendously helpful for tribes seeking to transfer cases.

Supreme Court Grants Texas v. Haaland

Here is the order

The Court granted the petition with no limitations, so the issues are not limited the way the government and four tribes requested. Arguments will be held next term (terms start in October, so after October, 2022).

Relative Placement in Washington Supreme Court Decision

Even though this is not an ICWA case, three people have sent me this opinion by Justice Montoya Lewis regarding the primacy of relative placement in child protection proceedings. This opinion points to all sorts of issues that beleaguers relative placement, especially certain aspects of background checks and prior involvement with the system. Here, the Court explicitly holds that prior involvement in the system alone cannot be consider as a reason to keep a child out of a relative placement, and seems to imply that both criminal history and immigration status cannot be considered either.

But no wonder the ICWA advocates  noted this case–you can see ICWA’s influences implicitly and explicitly throughout:

This statutory scheme makes it clear that both the Department and the courts are directed by the legislature to preserve the family unit and, when unable to do so, to place the child with family members, relatives, or fictive kin before looking beyond those categories to nonrelatives.

***

This means that the dependency court is charged with actively
ensuring that relative placements have been fairly evaluated. This is an active
process required at each hearing. Id. Making a finding that no such family
placements exist at one hearing does not mean that the inquiry ends: the statute
contemplates that the inquiry is ongoing, recognizing that family circumstances
change, as they so often do, and as they did in this very case. Id.

(emphasis added)

Courts must do more than give a passing acknowledgment for relative preference,
as occurred in this case. Courts must actually treat relatives as preferred placement
options and cannot use factors that operate as proxies for race or class to deny
placement with a relative.

***

Prior involvement with child welfare agencies, without more, can serve as a proxy for race or class, given that families of Color are disproportionately impacted by the child welfare system.11 [!!!!!!]

(emphasis and punctuation added and oh BY THE WAY what does that footnote 11 say?? Is it a very long footnote on ICWA, the gold standard?? Now THAT is a long footnote I don’t mind reading):

11 For example, under the Indian Child Welfare Act (ICWA)—the “gold standard” in child welfare policy—children in foster care or preadoptive placement “shall be placed in the least restrictive setting which most approximates a family” with highest preference to a member of the child’s extended family, absent “good cause to the contrary.” 25 U.S.C. § 1915(b); BUREAU OF INDIAN AFFAIRS , U.S. DEP T OF INTERIOR, GUIDELINES FOR I MPLEMENTING THE INDIAN CHILD
WELFARE A CT 39 (2016). A party seeking to deviate from this placement preference must state their reasons on the record and bears the burden of proving by clear and convincing evidence that there is good cause to depart from the placement preference. 25 C.F.R. § 23.132(a), (b). One reason a court may conclude that there is good cause to depart from the placement preference is the unavailability of a suitable placement, but “the standards for determining whether a placement is unavailable must conform to the prevailing social and cultural standards of the Indian community in which the Indian child’s parent or extended family resides or with which the Indian child’s parent or extended family members maintain social and cultural ties,” and socioeconomic status may not be a basis to depart from the placement preference. 25 C.F.R. § 23.132(c)(5), (d). Notably, prior contact with the child welfare system, criminal history, and poverty are not good cause reasons to depart from the strong preference for placement with relatives under ICWA. Likewise, tribes located around Washington State prioritize placement with extended family or other members of the tribal community and rarely treat factors like prior child welfare proceedings or criminal history as disqualifying in determining out-of-home placements for children. See, e.g., NISQUALLY TRIBAL CODE § 50.09.09; NOOKSACK LAWS & ORDINANCES § 15.09.100; JAMESTOWN S’ KLALLAM TRIBE T RIBAL CODE § 33.01.09(J); PUYALLUP TRIBAL C ODE § 7.04.840. But see TULALIP TRIBAL CODE § 4.05.110(4) (prohibiting placement with someone with a criminal conviction, but only for certain crimes identified as disqualifying crimes by the social services division charged by the Tulalip Tribe with the responsibility to protect the health and welfare of Tulalip families and their children (beda?chelh)).

Finally, “Courts must afford meaningful preference to placement with relatives.” (not my emphasis this time)

The Washington Supreme Court is doing very important work right now, as are some of the best child protection activists/litigators in the country (IYKYK).

North Carolina Supreme Court on Reason to Know [ICWA]

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DSS and the guardian ad litem for Carrie (GAL) disagree, arguing that respondent
conflates the existence of or possibility of a distant relation with an Indian with
reason to know that a child is an Indian child.

States and courts are really struggling with how much information from a parent gives the court reason to know there is an Indian child in the case–I think this is especially since the regulations now make clear that if you do have reason to know, you must treat the child as an Indian child until demonstrated otherwise. At the same time, there is real issue with lack of nuance on this issue–when a trial court takes the facts from a case like In re Z.J.G. and treats them the exact same way as the facts in this case, which is essentially what happened, then states really have to go send notice for both, which is what the WA Supreme Court held. You don’t do the reverse, which is what the North Carolina Supreme Court has done in this case.

Now, I got an email from California recently and there is a lot of discussion there about the state’s laws there distinguishing between “reason to believe” and “reason to know.” There are a LOT of bumps with implementation, but they are essentially requiring a level, or duty, of inquiry and further inquiry from their state workers to ensure they aren’t missing ICWA cases.

I’d love to get into why is the GAL arguing against the application of ICWA or ensuring the child has the information she may need to be a tribal citizen, but I do have to do some other things today . . . https://turtletalk.blog/2013/11/25/fletcher-fort-indian-children-and-their-guardians-ad-litem/

Native Families and COVID-19

Here.

Native youth have suffered the highest rate of caregiver loss from the pandemic—4.5 times higher than that of White children. This means that 1 of every 168 Native children have lost their primary caregivers to COVID, as compared with 1 of every 310 Black children, 1 of every 412 Hispanic children, and 1 in every 753 White children.

Thanks to Fred Fisher to sending this on to us.

2021 ICWA Cases–Initial Screenshots

I’m still cleaning the data for the 2021 ICWA cases, but here are a few screen shots that might be interesting. Federal cases are excluded. This dataset is based on my reading of Lexis/Westlaw alerts as well as a few individual state alerts. Mistakes are mine.

Reason to Know Decision out of Colorado Court of Appeals [ICWA]

The Colorado Court of Appeals analyzed the regs on the reason to know issue, a similar argument to the In re Z.J.G. case from Washington. And as in Z.J.G., the Department is arguing for a narrower interpretation. However, the Court of Appeals reasoned:

Recall that the federal regulation and the Colorado statute implementing ICWA’s “reason to know” component distinguish between information that the child is an Indian child, 25 C.F.R. § 23.107(c)(1); § 19-1-126(1)(a)(II)(A), and information indicating that the child is an Indian child, 25 C.F.R. § 23.107(c)(2); § 19-1- 126(1)(a)(II)(B). These two provisions cannot have the same meaning because that would make one superfluous.

***

As a result, divisions of this court have repeatedly recognized that, where a district court receives information that the child’s family may have connections to specific tribes or ancestral groups, the court has “reason to know” that the child is an Indian child — even where the information itself does not establish that the child fully satisfies the definition of an Indian child