From the Federal Circuit Court of Appeals:
And, contrary to UMN’s arguments, Saint Regis did not
base its reasoning on implied abrogation of tribal sovereign
immunity. Instead, Saint Regis concluded that IPR was an
agency reconsideration proceeding to which sovereign immunity does not apply in the first instance. 896 F.3d at 1329. This reasoning applies equally to states as it does to
tribes.
Article discussing the opinion here.
4 New York’s Quest for Jurisdiction over Indian Lands by Hon. Carrie Garrow
20 New York State’s Recent Judicial Collaboration with Indigenous Partners: The Story of New York’s Federal-State-Tribal Courts and Indian Nations Justice Forum by Hon. Marcy L. Kahn
34 The Origins and Evolution of the Indian Child Welfare Act by Danielle J. Mayberry
48 Thomas Indian School: Social Experiment Resulting in Traumatic Effects by Lori V. Quigley, Ph.D.
Here are the previous posts on the Adoption and Foster Care Analysis and Reporting System.
These comments are to tell the federal government (AGAIN) to start collecting basic data on state ICWA cases. While we would like the original rule to stand (and say so in the model tribal comments), there is also an opportunity to request very specific data elements that are less complicated or confusing than the ones currently offered.
If you would like information on this issue or model tribal comments, please email Jack Trope (information handouts), Delia Sharpe (model comments), or me (both/either). If you are a law professor interested in signing on to excellent comments, email Seth Davis at Berkeley.
jtrope@casey.org
delia.sharpe@caltribalfamilies.org
fort@law.msu.edu
sdavis@law.berkeley.edu
Deadline is July 15. These are grants for tribes interested in changing their codes and manuals to access direct federal funding (up to 83%) for the administration and training of their social service agencies, and maintenance payments to foster families.
If you are an in-house attorney who would like to know more about this, please let me know.
Here is a case that continues to demonstrate the importance of ensuring a state ICWA law allows transfer of cases post-termination. Navajo Nation intervened and appealed the decision to deny transfer (and to move the children back to the former, non-ICWA compliant foster home, who opposed the transfer to tribal court).
Additional important issues in this case including the appealability of a final order, standing of former foster parents (they had none), and post-termination transfer to tribal court.
We acknowledge that ICWA only addresses a request to
transfer jurisdiction during foster care placement and termination of parental rights proceedings. 25 U.S.C. § 1911(b). It does not mention such a request during preadoptive or adoptive placement proceedings. See id. Even so, the Children’s Code, as it existed at the time the juvenile court denied transfer, permits a juvenile court to consider transfer of jurisdiction to a tribal court “[i]n any of the cases identified in subsection (1) of this section involving an Indian child.” § 19-1-126(1), (4)(a). The cases identified in subsection (1) include “pre-adoptive and adoption proceedings.” § 19-1-126(1).
Not sure what’s in the water today, but here.
Also, not innovative and I’m going to go with illegal:
An investigative report by WDRB in Louisville, Kentucky recently exposed a particularly innovative — although likely illegal — method that the state’s child protective services caseworkers came up with to remove children from their families without court approval.
According to the report, Cabinet for Health and Family Services workers kept stacks of blank emergency removal orders that were pre-signed by local district court judges. This allowed caseworkers to take custody of children without having a judge properly review the allegations or evidence beforehand. Attorneys and judges interviewed for the report compared the practice to a police officer creating their own search warrant without a judge’s approval.
This case is not an ICWA case, but for those who work in this area, it is a familiar fact pattern, and one of the rare times the appellate court overturned the TPR based on lack of evidence. In addition, the press covered both this case, and did a second article on what it means to have “confidential” child welfare cases and provides a fair amount of nuance.
Opinion: 1 CA-JV 18-0322
We hold that a termination based on fifteen-months’ out-of-home placement requires the court to consider the totality of the circumstances throughout the dependency when determining whether the Department of Child Safety (“DCS”) made a diligent effort to provide appropriate reunification services, including whether DCS’s failure to act reasonably and diligently contributed to the circumstances causing the child to remain in out-of-home placement. We further hold that a request through the Interstate Compact on the Placement of Children (“ICPC”) is not required when the evidence does not support a dependency concerning the out-of-state parent.
Dad was not married to mom and did not know the child had gone into DCS care at birth. When he contacted the case worker, he was deemed immediately unfit.
Relating to Father, the primary cause of Melody’s out-of-home care was the court’s dependency finding in May 2015. At that time, no evidence showed that Father was an unfit parent, or that living with Father was contrary to Melody’s welfare. Melody had been in DCS’s custody since birth. Father contacted DCS when Melody was less than one month old. Nevertheless, without any investigation, DCS filed a petition alleging that Melody was dependent due to abuse or neglect as to Father.
***
Despite Mother’s deception in telling Father that he was not Melody’s father, he called Mother’s husband, found out Melody was in DCS’s care, and immediately contacted DCS requesting a paternity test. The case manager told Father to contact the juvenile court, which he did. Father diligently complied with the ordered paternity test, appeared for the hearings, participated in parenting classes, and contested the allegations in the dependency petition.
DCS also required an ICPC (interstate compact on the placement of children) review for the child to be placed with her father in California–though again, there was no actual evidence of unfitness. This is a fact pattern we have dealt with in ICWA cases out of Arizona as well.
An ICPC is not required when evidence does not support a dependency as to the out-of-state parent. See In re Emoni W., 48 A.3d 1, 6 (Conn. 2012) (ICPC does not apply to out-of-state non-custodial parent); accord In re C.B., 116 Cal. Rptr. 3d 294, 302 (Cal. Ct. App. 2010); In re Alexis O., 959 A.2d 176, 182 (N.H. 2008). An ICPC is intended for out-of-state placement of a dependent child. A.R.S. § 8-548, art. II(d) (“’Placement’ means the arrangement for the care of a child in a family free or boarding home or in a child-caring agency . . . .“); A.R.S. § 8-548, art. III(a) (“No sending agency shall send, bring, or cause to be sent or brought into any other party state any child for placement in foster care or as a preliminary to a possible adoption [without complying with the ICPC].” (emphasis added)).
***
Thus, when DCS discovers that a child in its care has an out-of-state parent, the regulation allows it—in addition to the conventional mechanisms it employs to investigate a parent—to request a courtesy check from the parent’s home state. Accord In re Emoni W., 48 A.3d at 11 (an agency can investigate an out-of-state parent without an ICPC). The ability to request a courtesy check, however, does not authorize DCS to hold a child in its care for an indeterminant amount of time simply because it lacks an ICPC approval. Unless DCS has a reasonable basis for believing the out-of-state parent is unfit, it must turn over the child to the parent.
The Court cited to Vivek Sankaran’s article on this very issue, Vivek S. Sankaran, Out of State and Out of Luck: The Treatment of Non-Custodial Parents Under the Interstate Compact on the Placement of Children, 25 Yale L. & Pol’y Rev. 63, 80 (2006).
By all accounts, dad was a good dad to his other children in California. The trial court went on to terminate parental rights regardless.
Reading this opinion should be infuriating. The visitation “plan” alone makes a person’s heart rate climb to unhealthy levels on a plane, as my watch unhelpfully pointed out (“DCS falsely claimed lied and said that “Father ha[d] failed to keep most of the weekly appointments for telephonic contact with the child.” ¶62 The foster mother reported that Father missed only five calls of the fifty days on which Father would have been scheduled to call in that period.”), and is a reminder of the absolute need for very good individual party attorneys in the child welfare system. This is a well written and well reasoned opinion by the Court of Appeals.
Humanities Champion of the Year: This award is given to the person whose contributions result in outstanding public humanities impact in their community and in our state. An example would be humanities person (teacher, librarian, cultural leader) who has creatively and successfully brought humanities to the public forum. Faculty and scholars who have taken humanities to the public beyond their classroom, or brought the public into their classroom. 2019 Award Winner: Tie: Charles Ferrell, of the Charles H. Wright Museum of African American History and Eric Hemenway, of the Little Traverse Bay Bands of Odawa Indians.
When we think about data, and how it’s been gathered, is that, from marginalized communities, it was never gathered to help or serve us. It was primarily done to show the deficits in our communities, to show where there are gaps. And it’s always done from a deficit-based framework. They talk about how our communities have the highest rates of obesity, have the highest rates of diabetes, highest rates of infant mortality. How our people may be experiencing high rates of opiate misuse.
What they don’t talk about is the strengths of our community. What we know, particularly for indigenous people, is that there was a genocide and assimilation policies and termination policies that were perpetuated against us. If they had worked, we wouldn’t be here. And so we were always strength-based people, who passed on and continued knowledge systems regardless of people who tried to destroy us.
Here.
This is a difficult case, but the opinion does a nice job of outlining how a state and Tribe can work together in a state court ICWA case to provide active efforts when reunification with the father would be essentially impossible (based on the facts provided). The Court also correctly identifies legal standards involved with the father’s attempt to transfer the case to tribal court.
Turtle Talk 
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