This morning the Supreme Court denied cert in the Utah Supreme Court case establishing a federal standard of reasonableness for a putative father to acknowledge or establish paternity.
Case page here.
Order list here.
Author: Kate Fort
Unpublished QEW Opinion out of Texas Court of Appeals
Here.
This is the second time recently a well-reasoned QEW case has been unreported, which means it can’t be used as precedent. The first was in Washington. In re K.S., 199 Wash.App. 1034 (2017). This one is out of the Texas Court of Appeals.
First, because I’ve been getting a lot of emails lately about foster parent issues, here are the witnesses who testified:
Only three witnesses testified at the termination hearing: S.P., R.C.P.’s foster parent, and Glendalys Mojica Gonzalez, the caseworker assigned to the case. The Department did not designate or proffer any of the witnesses as an expert, and the trial court did not make any rulings or findings regarding expert witnesses.
The Court then analyses the 2015 Guidelines (which it appears would have been governing this case since it was started in October 2016, i.e. initiated prior to December, 2016. 25 CFR 23.143) and concludes none of those people are QEWs.
The failure of the Department to produce the kind of competent evidence expressly required under the Act to support termination constitutes a failure of proof. See City of Keller,
168 S.W.3d at 812 (“[W]hen expert testimony is required, lay evidence . . . is legally insufficient.”); see also Martin v. State, 222 S.W.3d 532, 537 (Tex. App.—Houston [14th Dist.] 2007, pet. denied) (reversing involuntary-commitment order as unsupported by legally sufficient evidence where State
failed to introduce expert testimony as required by involuntary-commitment statute). Therefore, even viewing all of the evidence in the light most favorable to the verdict, because the record does not contain the statutorily required qualified-expert testimony, we conclude that the evidence is legally insufficient to meet the standard of proof under section 1912(f). See Jackson, 443 U.S. at 319; see also In re V.L.R., 507 S.W.3d at 796–97 (reversing judgment terminating parental rights because not supported by testimony of qualified expert witness as required under ICWA); Doty-Jabbaar, 19 S.W.3d at 877 (same).
Summer Indian Law Program at Montana
Here.
Law students, grad students, attorneys, tribal leaders:
JOIN US for the Summer American Indian and Indigenous Law Program here at the Alexander Blewett III School of Law at the University of Montana in beautiful Missoula. We are once again offering a unique slate of courses (for which we have also requested CLE credit) taught by some of the preeminent scholars and practitioners in our field. Topics include:
June 4-8: Indian Law Research, Prof. Stacey Gordon (ABIII School of Law, Univ. of Montana, Missoula, MT)
June 11-15: Mastering American Indian Law, Prof. Maylinn Smith (ABIII School of Law, Univ. of Montana, Missoula, MT)
June 18-22: American Indian Children and the Law, Professor Kate Fort (Michigan State University College of Law, East Lansing, MI)
June 25-29: Designing Effective Governmental Regulations, David Hindin (Director, Office of Compliance, Office of Enforcement and Compliance, USEPA, Washington D.C.)
July 2-6: Alaska Native Law and Policy, Matt Newman (Staff Attorney, Native American Rights Fund, Anchorage, AK)
July 9-13: Native Hawaiian Law, (Professor Melody Kapilialoha MacKenzie, William S. Richardson School of Law, Honolulu, HI)
July 16-20: Water Law in Indian Country, John Carter (Tribal Attorney, Confederated Salish & Kootenai Tribes, Pablo, MT)
July 23-27: Indigenous Peoples in International Law (Professor Kristen Carpenter, University of Colorado School of Law, Boulder, CO)
The program is a great opportunity for students, attorneys, and tribal leaders to gain or feed a passion for Indian law by engaging with other outstanding students and professors in a beautiful and scenic location. Please have them check out our website: www.umt.edu/indianlaw. Also, please feel free to pass the website along to others who may be interested in this opportunity to spend a few weeks this summer learning with us here in Missoula.
Transfer to Tribal Court Case out of the Ohio Court of Appeals
This is a procedurally complicated case, with a hostile GAL. The conclusion of the appellate court is disappointing:
It is not for this court to decide where and with whom C.J., Jr. should live. However, we have been asked to decide the legal question of who should make the custody determination concerning this child. Based on the foregoing, that decision should be made by the Ohio court after a full evidentiary hearing taking into account the best interests of C.J., Jr., any competing interests of the other parties to this litigation, and the full participation of GRIC. Whether the trauma that might result from removing C.J., Jr. from the only home he has known since he was two years old should outweigh the interest of GRIC in having him transported across the country and raised as part of the GRIC must be determined with all the wisdom, compassion, and experience of the juvenile court.
This article has quotes from the tribal attorney in the case.
Déjà vu All Over Again: AFCARS Comments Needed
Here is the advanced notice of proposed rulemaking where HHS is reopening the FINAL RULE adopting new data elements on kids in foster care, including ones on ICWA. Comments on how yes, really, we really do want ICWA data, just like we said the last two times are now due June 13.
Oh also, there’s another notice where HHS is proposing to delay implementation of the Final Rule for two more years. Those comments on that are due April 16.
Honestly, just reading the notices is infuriating–the Administration admits the final rule was the culmination of not one, but two separate notice and comment periods, plus a supplemental notice and comment period. This Administration, though, has identified this rule as one where the benefits might outweigh the costs. They have a few identified questions for comment, though it is pretty clear the Administration is seeking comments to support their contention the additional data elements would be too much work for agencies to collect.
I’m sure there will be additional posts on this in the near future.
Colorado Court of Appeals ICWA Notice Case
Here.
The 2016 Guidelines recommend that if only the tribal ancestral group is indicated, then the Department should notify each of the tribes in that ancestral group to identify whether the parent or child is a member of any such tribe. 2016 Guidelines at 18. Thus, because ICWA’s intent is to provide notice to tribes so that the tribes themselves can decide whether children are tribal members, see B.H., 138 P.3d at 303-04, when a parent is unable to provide detailed information on potential tribal affiliations, the Department should provide notice to all identified tribes and the tribes that have been historically affiliated with those identified tribes, see Tribal Agents by Affiliation, https://perma.cc/K3DDKQR5.
ICWA Case Out of Alaska Supreme Court
Here.
Parents appeal from a superior court’s order that the Office of Children’s Services (OCS) had satisfied the Indian Child Welfare Act’s (ICWA) requirements authorizing the removal of their daughter, an Indian child, from their custody. Because
the court relied on information that was not in evidence to make the required ICWA removal findings, we vacate the order authorizing removal.
Bill to Allow Tribes Access to Information Needed for Active Efforts in Passes in Michigan
Here is SB 616.
Here is the press release.
Here is some news coverage.
This bill was driven entirely by the tribes in Michigan–especially the in-house ICWA attorneys and tribal social workers who have been expressing concern with not getting enough information to ensure a family is receiving active efforts prior to a foster care placement.
RFP for Child Support Attorney at Navajo Nation
REMINDER!! TICA 2018 CONFERENCE PANEL PROPOSALS DUE TOMORROW!
Information here.
Congratulations to those who have theirs in already.
Turtle Talk 
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