Author: Kate Fort

Latest Legal Developments in California ICWA Case

Kate Fort

From the docket:

The writ of supersedeas was denied. Here.

The application to transfer the case out of the court of appeals and directly to the California Supreme Court was also denied. Here.

The underlying appeal against the placement order remains open in the California court of appeals. Here.

What is a writ of supersedeas? It’s what California still calls a stay of proceedings. A writ of supersedeas is defined in California’s Rules of Court here. Under rule 8.824, a writ of supersedeas is a stay of a judgment or order pending appeal. The petition for the writ must bear the same title (or name) as the appeal (hence a lot of confusion). In this case, the petition for the writ was filed to in an attempt to stop the transfer placement to Utah while the California court of appeals hears the foster parents’ appeal of the March 8th placement order. The court of appeals denied the petition for the writ of supersedeas on March 18. The first time this case went up on appeal, the appeal process took nine months from filing to opinion.

In addition, the California Rules of Court allow for a transfer of a case pending in the court of appeals to the California Supreme Court. Rule 8.552 allows a party to petition for the transfer, but the case must present “an issue of great public importance that the Supreme Court must promptly resolve.” in order for the transfer to be granted.

Tl;dr? The case is ongoing, it will stay in the California court of appeals for now, but the child will not be moved back to California during the pendency of the appeal.

 

ICWA Case Updates and Legal Clarifications

Kate Fort

Because of the recent media attention to ICWA, here’s a quick update and clarification of some legal details:

ICWA has not been amended, updated, or changed. Ever. The same language that Congress passed in 1978 is the same language in effect today.

In 2015 the Bureau of Indian Affairs updated the ICWA Guidelines for State Courts for the first time since 1979. These non-binding Guidelines are considered persuasive by many states and are in effect now. State courts are using them in their decisions. The National Council for Adoption (NCFA) and Building Arizona Families (BAF) challenged the implementation of the 2015 Guidelines in the Eastern District of Virginia (E.D.Va) where they lost a motion to dismiss. However, they have filed an appeal in the Fourth Circuit, which is where the case currently sits.

Also in 2015, the Department of the Interior proposed federal regulations. Those regulations went through an intensive comment period (you can still read all of those comments here). The regulations have not yet been promulgated, which means the federal government has not released them pursuant to the Administrative Procedures Act–which means they do not currently exist. No one knows when they will be promulgated, or what they look like at this point. People (including us) speculate on when or if they will be promulgated before the end of the Administration, but we do not know. We do anticipate (speculate) there will be litigation over the regulations if/when they are.

Finally, the Goldwater litigation, which attracted a big splash of media attention when the complaint was filed in 2015, is on-going. Their goal is to have a court find that ICWA is a race-based law, meaning that the law would be subject to strict scrutiny in the federal courts (you can read a Wall Street Journal op-ed by the Goldwater attorneys discussing this here, but only if you want to and you probably don’t). This, of course, completely disregards long settled federal and state law (1) regarding tribes, tribal people, political status, and citizenship, which NICWA addresses perfectly at the end of an article here (and you can now disregard the reporter’s claim that ICWA has been amended because you’ve read this post and know that’s wrong). Along those lines, the plaintiffs in the Goldwater case just tried to add two new named plaintiffs, one of whom is not eligible for membership in any tribe. This has led to recent filings by both the federal and state governments named in this case asking the judge to dismiss. Both filings explain in detail why ICWA is not a race-based law.

(1) See, e.g., In the Interest of A.B., 663 N.W.2d 625, 636 (N.D. 2003); In re A.A., 176 P.3d 237, 240 (Kan. App. 2008); In re Adoption of Hannah S., 48 Cal. Rptr. 3d 605, 610-11 (Cal. Ct. App., 3rd. Dist. 2006); In re Interest of Phoenix L., 708 N.W.2d 786, 797-89 (Neb. 2006), rev’d on other grounds; Matter of M.K., 964 P.2d 241, 244 (Okla. Ct. App. 1998); In re Marcus S., 638 A.2d 1158, 1159 (Maine 1994); State ex rel. Children’s Services Div. v. Graves, 848 P.2d 133, 134 (Or. Ct. App. 1993); In re Miller, 451 N.W.2d 576, 579 (Mich. App. 1990); Matter of Appeal in Pima County Juvenile Action No. S-903, 635 P.2d 187, 193 (Ariz. Ct. App. 1981); Matter of Guardianship of D.L.L., 291 N.W.2d 278, 281 (S.D. 1980).

California DOJ Issues Investigative Subpoena on DHHS in Humboldt County

Kate Fort

The County filed a petition for relief in Humboldt county superior court and attached the investigative subpoena on the Humboldt County Department of Health and Human Services from the California DOJ. The subpoena includes a request for all internal communications relating to tribes and children who are eligible for enrollment or enrolled in any tribes, among a fair number of other ICWA-related inquiries.

Petition for Relief

Opposition of AGO

Dec of Chuang

Indian Country Statements and Some Law Regarding the California ICWA Case

Kate Fort4 Comments

NICWA’s statement.

Choctaw Nation’s statement.

NCAI’s statement.

California Children’s Law Center statement.

NAJA’s statement.

We will continue to add statements from other groups as we receive them. And, because it’s what we do, we’ve created a page with all of the publicly available primary source documents in this case. You can find that here.

The foster parents’ attorney has issued a statement claiming she will use this case to appeal ICWA up to the U.S. Supreme Court if necessary. We’ve heard this before, and there are very few legal routes left for them to do that, but we still expect they will try them all.

Meanwhile, this case is not just about Indian Country. The role of foster care in this country is clear–to provide a temporary, loving home for a child while her family receives services to so the child can go home safely. It is also provides time for the state to search for other -relative- homes for the child. This is a best practice regardless of whether the child is Native or not. It’s actually state law in California. Ann.Cal.Welf. & Inst.Code § 361.3. In fact, it’s the law in a lot of states. That’s because relative preference in placement is also required by the federal government for states to receive Title IV-E funding. 25 U.S.C. 671(a)(19). Preventing a child from living with her siblings and relatives –family she knows, and who have spent considerable time planning this transition– contrary to court order is not the role of foster parents.

Finally, the use of the media in this case to inflame opinion, spread false information about the situation, publicize a child’s name and face, and to try to dismantle ICWA itself [again] is deplorable. The type of comments that NICWA, the California Children’s Law Center, Choctaw Nation and other individuals are receiving, particularly on social media, should disturb us all. Those taking the brunt of this deserve our full support and thanks.

Additional Resources:

The Michigan Legislature

The Washington Legislature

The Nebraska Legislature

The Minnesota Legislature

The Wisconsin Legislature

The California Legislature

2013 Statement of National Council Juvenile and Family Court Judges

2013 Position Statement of Casey Family Programs

2013 Press Release of the following child welfare organizations in support of ICWA: Casey Family Programs, Children’s Defense Fund, Child Welfare League of America, Annie E. Casey Foundation, Donaldson Adoption Institute, North American Council on Adoptable Children, Voice for Adoption, Black Administrators in Child Welfare, Inc., Children and Family Justice Center, Family Defense Center, First Focus Campaign for Children, Foster Care Alumni of America, FosterClub, National Alliance of Children’s Trust and Prevention Funds, National Association of Public Child Welfare Administrators, National Association of Social Workers, National Court Appointed Special Advocate Association, and National Crittenton Foundation.

 

Response to Media Dustup in California ICWA Case

Kate Fort1 Comment

NICWA’s statement:

We are disturbed by this weekend’s flurry of negative media attention regarding the attempted reunification of a child with her family in Utah. In this contentious custody case, there have never been any surprises as far as what the law required. The foster family was well aware years ago this girl is an Indian child, whose case is subject to the requirements of the Indian Child Welfare Act (ICWA), and who has relatives who were willing to raise her if reunification with her father was unsuccessful.
In fact, the only surprising turn of events is the lengths the foster family has gone to, under the advice of an attorney with a long history of trying to overturn ICWA, to drag out litigation as long as possible, creating instability for the child in question. That the foster family now argues bonding and attachment should supersede all else despite testimony of those closest to her case, seems like a long-term, calculated legal strategy based on the simple fact that the law was always clear, they understood it, but just chose not to abide by it.
The purpose of foster care is to provide temporary care for children while families get services and support to reunite with their children, not to fast-track the creation of new families when there is extended family available who want to care for the child. The temporary nature of these relationships is also the reason we view those who serve as foster parents as selfless and nurturing individuals. Reunification and placement with extended family whenever possible is best practice for all children, not just Native American children.
We call on the media to provide balanced reporting and to ask vital questions regarding these facts before inflaming the public and subjecting the privacy and future well-being of a little girl to national debate.

 

Our previous coverage of the appeal of this case is here.

As always, we remain concerned with the lack of privacy for a child who doesn’t get to make decisions about her identity being put forward into the press. In perhaps no surprise to anyone, this case involves repeat players from the Adoptive Couple v. Baby Girl case.

Saginaw Chippewa Indian Tribe Senior Associate General Counsel Position

Kate Fort

Here.

As directed by the General Counsel, the Senior Associate General Counsel shall represent the Tribe in all judicial and administrative forums and in the Tribe’s governmental and business relations with all persons, organizations and entities, public and private The Senior Associate General Counsel shall supervise and coordinate the work of the one Associate General Counsel or other attorney or personnel as directed by the General Counsel.

NAICJA 2016 Conference Call for Presentations

Kate Fort

Here. If you have any questions, you can email info@naicja.org

The National American Indian Court Judges Association (NAICJA) invites presentation proposals for the 47th Annual National Tribal Judicial and Court Personnel Conference which will be held October 18-21, 2016, at the magnificent Morongo Casino, Resort & Spa in Palm Springs, CA. NAICJA’s Annual Conference offers innovative and timely tribal justice information through high quality presentations by national experts. The theme of this year’s conference is, “Tribal Justice Matters: Role of Tribal Courts in Upholding Indigenous Rights.” NAICJA is featuring topics that highlight ways in which American Indian, Alaska Native, Native Hawaiian and First Nations justice systems are exercising and upholding tribal inherent rights. We are especially interested in presentations that focus on social justice and human rights, tribal sovereignty, international frameworks for understanding indigenous issues, promising Indian child welfare practices, court security and topics of interest to court clerks and court personnel.

This is your opportunity to share your expertise and display your creativity by developing an original program for presentation. Proposals specifically tailored to meet the needs of the 300-person NAICJA audience are strongly preferred. Proposals are due on or before Friday, April 15, 2016 at 5:00 p.m. (MTN).

Draft Model Indian Juvenile Code Posted in the Federal Register Today

Kate Fort

Here.

The Bureau of Indian Affairs is announcing availability of a draft Model Indian Juvenile Code for comment. The draft Model Indian Juvenile Code is intended as a tool to assist Indian Tribes in creating or revising their juvenile codes. DATES: Comments are due by midnight ET on May 27, 2016. See the SUPPLEMENTARY INFORMATION section of this notice for dates of Tribal consultation sessions.

Doe v. Jesson, now Piper, Partially Survives Motion to Dismiss

Kate Fort

Here. This is the federal case challenging the Minnesota Indian Family Preservation Act.

The Court finds that it has jurisdiction to hear the Does’ complaint, but only against the government defendants. The Court will dismiss Commissioner Moose from the case because he is a tribal officer and not a state officer; does not enforce MIFPA; and is not restricted by the constitutional clauses at issue here. But even though the Court may proceed to the merits of the Does’ complaint against the government defendants, the Court will not decide the merits now. The parties necessarily and understandably devoted nearly all of the briefs to the numerous preliminary issues. Although the jurisdictional questions were well briefed, the Does’ equal protection and due process claims received less attention than they deserved. Accordingly, in deciding these motions the Court will express no opinion on the merits – only on the preliminary matters. It may be that Defendants’ positions on the merits are correct – or incorrect – but those questions will be decided another day.

Child Welfare Article in the Lansing State Journal

Kate Fort

Here.

While not ICWA-specific, the concerns raised in this article regarding representation, admitting at adjudication, and the lack of independent experts are also reasons for ICWA non-compliance.

Parent advocates say Michigan erects a wall between kids and their families because DHHS is the only agency helping parents overcome their struggles and at the same time is their courtroom opponent, logging those struggles as possible evidence against them. In child welfare cases, judges can issue lifelong penalties based on far less evidence than is required in criminal court. Most parents’ only defense is an overworked, underpaid court-appointed attorney.