Author: Kate E. Fort

Published Notice Case from California Court of Appeals [ICWA]

Kate Fort

Here

One might think, given that as of the end of July, California had more than 70 ICWA notice violation cases and in 41 one of them (fifty six percent of the time) the appellate court sent it back down to get inquiry and notice correct, the state agency might spend less time arguing why they shouldn’t do notice at all and instead just do notice right the first time. Also, this is one of those cases that makes me furious given that the Tribe intervened in mother’s case when SHE was a dependent child. But instead, let’s look at what the state argued it should do rather than give notice to the Picayune Rancheria:

It is well established that a non-Indian parent has standing to assert an ICWA notice violation on appeal. (In re Jonathon S. (2005) 129 Cal.App.4th 334, 339.) Nonetheless, the County argues that this court does not have jurisdiction, the case is not ripe for appeal, and parents do not have standing because they did not first bring a petition for invalidation in the juvenile court.

***

The County argues that because this specific remedy [25 U.S.C. 1914]  for ICWA violations exists, appeal is an improper remedy. It argues that a petition for invalidation is the exclusive remedy available for ICWA notice and inquiry violations and, as such, parents were required to unsuccessfully pursue such a petition in the juvenile court prior to seeking relief on appeal. Because they did not do so, it reasons, this court is without jurisdiction to hear their appeal.

Yet despite arguing that a petition for invalidation is the exclusive remedy for an ICWA violation, the County also argues parents do not have standing to file such a petition for invalidation. It argues the petition is only available to parents of Indian children—not parents of a potential Indian child for whom ICWA inquiry and notice was not effectuated. (emphasis added)

***

We also decline the County’s invitation to reexamine the “non-forfeiture doctrine”—or, more accurately described as the principle that a parent is not foreclosed from raising an ICWA inquiry or notice violation even if the issue could have been more timely raised by appeal from an earlier order.

***

Again, the County suggests we revisit established case law and depart from the requirement that the agency give ICWA notice to tribes when there is reason to know a child may be eligible for membership and require notice only when the court knows or has reason to know the child is definitively a member (or knows a parent is definitively a member and the child is eligible for membership). We decline the invitation.

Therefore,

Here, having reason to know the minor may be an Indian child, the juvenile court ordered the County to provide notice to the Picayune Rancheria of the Chukchansi Indians tribe in accordance with the ICWA. The County knew that the maternal grandfather was a member of that tribe and that he lived on the tribe’s reservation. It also knew, or should have known, that mother was found to be an Indian child when she was a dependent of the court and that the Picayune Rancheria of the Chukchansi Indians tribe had intervened in that case. We conclude, as did the juvenile court in this case, that the County was required to send ICWA notice to the Picayune Rancheria of the Chukchansi Indians tribe in this case. (emphasis added)

And the kicker (court’s emphasis not italics, mine in red):

Here, the County sent notice to the Picayune Rancheria of the Chukchansi Indians tribe on January 25, 2016, of the “Pre-Jurisdictional Status Conference,” which was scheduled for February 9, 2016. The juvenile court was apprised that the tribe had not received the notice but proceeded with the hearing, which was ultimately held on February 23, 2016. Thereafter, no notice of any subsequent hearing was ever sent to either the tribe or the BIA. Nonetheless, the court held the jurisdiction and disposition hearing on February 23, 2016, sustained the petition, removed the minor, and ordered reunification services. After that hearing, the County “resent” notice—apparently resending the same documents (i.e. the family history, section 300 petition, and notice of the then-passed February 9, 2016 hearing date)—thus, only providing the tribe with notice of a hearing which had already passed. The tribe received that notice on March 3, 2016. On April 26, 2016, less than 60 days thereafter, the juvenile court held an unnoticed ICWA compliance hearing and found the ICWA did not apply.

 

Job Announcements Announcement

Kate Fort

Good afternoon!

We are very pleased that so many people have found our Friday legal job announcements to be useful. We are always happy to hear from people who have found jobs from the postings.

Just as a gentle reminder, all requests to post jobs must follow the format identified here:

https://turtletalk.blog/indian-law-job-announcements/

and sent here: indigenous@law.msu.edu

If it doesn’t, we cannot guarantee your announcement will make into a Friday post. We have very limited staff at the ILPC and Turtle Talk, and as we ramp up for our students to return and plan our awesome conference, we appreciate your kindness and patience. We receive between 25-35 announcements weekly, and there will be (the rare) week when we may not be able to get the Friday post done due to other obligations. There is also the possibility we will simply miss something. In addition, we don’t go back and pull down old job posts when they expire–we simply don’t have the capacity for that.

We appreciate your help in making the Turtle Talk Friday job posting service possible for all the lawyers out there looking for Indian Country jobs!

Thanks,

Kate Fort

ICWA Jurisdiction Case Out of North Carolina Court of Appeals

Kate Fort

Here.

There is a lot going on here, including problematic reasoning over full faith and credit to a tribal court order, but I think it is worth focusing on “ward of the tribal court” language. In 25 USC 1911(a), tribes retain exclusive jurisdiction regardless of the domicile of the child if the child is a “ward of the tribal court.” The weakness in this language was exploited in Rye v. Weasel, the existing Indian family case out of Kentucky (which continues to be one of the few states that upholds this exception).

This opinion essentially creates a definition of “ward”, using the more restrictive language available:

ICWA and the related sections of the Code of Federal Regulations do not instruct as to who should make a finding regarding a child’s status as a tribal court’s ward and North Carolina does not use the term “ward” in the context of adoptions. Black’s Law Dictionary defines a “ward” as “a person, usu[ally] a minor, who is under a guardian’s charge or protection.” Ward, BLACK’S LAW DICTIONARY (11th ed. 2019). More specifically, Black’s defines “ward of the state” as “[s]omeone who is housed by, and receives protection and necessities from, the government.” Ward of the State, BLACK’S LAW DICTIONARY (11th ed. 2019). For purposes of ICWA, we adopt this definition for the term “Tribal Court Ward.” Applying this definition to the relevant provision of ICWA, once a child has stopped being housed by or provided protections and necessities from the tribe, she will cease being its ward for purposes of 25 U.S.C. § 1911(a)

In 2011, South Dakota DSS was granted full custody of the children. In 2012, the Tribe was granted renewed jurisdiction over the children’s case and placed the children in the care of their “paternal aunt,” Appellant. There is no evidence the children ever made the reservation their domicile or residence after that point in time, nor is there evidence the Tribe housed them or provided protections or necessities thereafter. In fact, the Appellant sought and obtained guardians for the children from the courts of North Carolina. Having lived most of their life outside the Tribe’s reservation and without provision of protections and necessities therefrom, we hold K.L.J. and K.P.J. were not wards of the Tribal Court. The Tribal Court cannot assert exclusive jurisdiction over this matter under 25 U.S.C. § 1911

While I believe this is far too constrained a reading of the text (“protections and necessities” are vague at best, and not required if we were dong a home state analysis of jurisdiction under the UCCJEA, for example), I do think it is a good reminder to tribes to ensure their guardianship codes provide for on-going review of tribal guardianship orders if they wish to maintain the exclusive jurisdiction over the child not living on the reservation. In many states, simply stating that the children are “wards” in the court order is not going to be enough (yes, it should be, but it generally is not).

Tribal Courts and Child Welfare Podcast Series from ACF

Kate Fort

Here.

Tribal Courts and Child Welfare Series

Eighth Circuit Decision Upholding Tribal Jurisdiction in Watso v. Piper [ICWA, PL 280]]

Kate Fort

Decision here.

This settles a long running string of cases out of the Minnesota federal courts in which the non-Indian parents of tribal member children argued there was no tribal jurisdiction over their children when they lived on the tribal reservation due to ICWA and PL 280.

ICWA holding:

Watso and Dietrich believe this provision means that “the tribe does not have jurisdiction over a child held by the state until the state court transfers jurisdiction to the tribe, which can only occur after a state court ICWA hearing.” To the contrary, § 1911(b) does not require a state court hearing. Section 1911(b) addresses the transfer of proceedings from state court to tribal court. Here, there were no state court proceedings. There was no transfer from state court to tribal court. Section 1911(b) does not apply.

PL 280 holding:

Public Law 280 does not require a state court hearing or any state court proceedings. See Walker v. Rushing, 898 F.2d 672, 675 (8th Cir. 1990) (“Nothing in the wording of Public Law 280 or its legislative history precludes concurrent tribal authority.”); Doe v. Mann, 415 F.3d 1038, 1063 n. 32 (9th Cir. 2005) (“Public Law 280 states have only concurrent jurisdiction with the tribes over child custody proceedings involving Indian children.”), citing Native Village of Venetie I.R.A. Council v. State of Alaska, 944 F.2d 548, 562, 559–62 (9th Cir. 1991) (rejecting argument that Public Law 280 vested enumerated states with exclusive jurisdiction). The SMSC Court’s jurisdiction over C.P. and C.H.’s child custody proceedings is consistent with Public Law 280.

And a succinct due process holding:

Lastly, Watso and Dietrich allege that the absence of a state court proceeding violated their due process rights, based on parents’ fundamental right “to make decisions concerning the care, custody, and control of their children.” Troxel v. Granville, 530 U.S. 57, 66 (2000) (invalidating state law that allowed any third party to petition state courts for child visitation rights over parental objections). They allege due process rights “to object and to stop the transfer, a right to notice and a right to a meaningful court hearing.” Watso and Dietrich had sufficient notice of the tribal court proceedings. They were heard in tribal court. They have presented no evidence of a due process violation.

Wisconsin Speakers Taskforce on Adoption Looking at Speeding up Adoptions

Kate Fort

Press releases: Speakers Taskforce on Adoption Membership 052919
Speakers Taskforce on Adoption 051419

Any tribal member and/or tribe can give testimony on this issue here:

Thursday, July 25, 2019
Unity School District Performing Arts Center
1908 150th St.
Balsam Lake, WI 54810
Start time: 12:00 noon
Please feel free to attend either session. If you would like time to speak please contact: Meagan Matthews at: 608-266-8551 or Meagan.Matthews@legis.wisconsin.gov

We would note that one outcome of the opioid epidemic is that some groups are pushing to terminate parental rights faster, particularly for children under the age of 3. A recent law passed in Arizona attempts to do just that, and was pushed by Generation Justice, a group founded by the recent past CEO of the Goldwater Institute.

New Mexico Notice and Time Frame Case from Court of Appeals [ICWA]

Kate Fort

Children, Youth & Families Department v. Tanisha G. and Isaac G.

This is an interesting and remarkable case, and a way to deal with continued notice violations and delay by an agency. Here are the highlights of this disturbing case of agency overreach:

CYFD took Child, then age four, into custody on January 26, 2018, after the 12 Bernalillo County Sheriffs Office executed a warrant for Father’s arrest, leaving no caregiver in the home to care for Child.

***

Parents were served with the petition on February 6, 2018. By that time, Father  had been released from custody and the charges against him dropped; his arrest was apparently the product of mistaken identity.

Meanwhile,

In the ensuing seventy-seven days, the parties appeared for three hearings: a status conference on February 27, 2018, and two adjudicatory hearings that had been set for April 2, 2018, and April 24, 2018, respectively. The district court declined to 14 commence the adjudication on either April 2 or April 24, however, because although CYFD had mailed ICWA notices to several tribal entities on February 8, 2018, and the tribal entities had received those notices shortly thereafter, CYFD had not filed proof of service to establish receipt in the record.

On April 25, 2018, Parents filed separate motions to dismiss, arguing that 19 CYFD had failed to commence the adjudication within sixty days as required by the Abuse and Neglect Act.

THEN,

The district court heard the motions to dismiss on the morning of May 24, 6 2018, at which time CYFD orally moved for an extension of time to commence the adjudicatory hearing. The district court denied CYFD’s request, noting that the court and parties had attempted multiple times to commence the adjudication, that CYFD’s failure to comply with ICWA’s notice requirements had precluded the court from timely adjudicating the matter, that the court had reminded CYFD that the time limits were running, and that CYFD had failed to file a motion to extend the time limits when the parties were last in court.  The district court granted the Parents’ motions to dismiss the petition with prejudice.

Hours later, Father filed an emergency motion for contempt of court, stating that arrangements had been made for Child to be reunited with Parents at 11: 15 a.m., but CYFD refused to return Child. The district court conducted an emergency hearing at 3:00 p.m., during which CYFD stated that it intended to file a motion to reconsider or, alternatively, to stay the judgment. The district court admonished CYFD for keeping Child without jurisdiction and ordered reunification before 5:00 p.m. that day, which occurred. CYFD appeals the district court’s dismissal order.

The Court of Appeals upholds the lower courts dismissal and ADDS THIS:

Finally, we briefly address CYFD’s assertion that the district court “was … inexplicably dismissive of [CYFD]’s concerns for Child’s welfare, which is not only an abuse of discretion, but demonstrates a conscious disregard by the [district] court of its statutory duty to ensure that ‘a child’s health and safety shall be the paramount concern.'” Contrary to CYFD’s characterization, however, we note that the district court heard from Father’s attorney that the conditions in the home had been remedied. The guardian ad litem (GAL) reiterated that Parents’ attorneys had suggested that the home was now clean and safe for Child. The GAL stated that Child and Parents share a strong bond and that Child was suffering from anxiety due to his separation from Parents. The GAL believed it was safe to return Child to  Parents. Moreover, the criminal allegations against Father, which had brought Child into CYFD’s custody in the first place, were a product of mistaken identity and had been dismissed months earlier. Based upon this testimony, we disagree with CYFD’s characterization that the district court disregarded Child’s health and safety.

Qualified Expert Witness Case out of Alaska Supreme Court [ICWA]

Kate Fort

Here

I have been trying to figure out how to comment on this particular opinion, though I may just default to Alaska’s QEW holdings have always been outliers . . .

So as a reminder for us all, this is how the Minnesota Supreme Court described the purpose of the QEW:

The third clause—“including testimony of qualified expert witnesses”—further identifies what must be included as part of the court’s “beyond a reasonable doubt” determination. Id.; see also Larson v. State, 790 N.W.2d 700, 705 (Minn. 2010) (“[A] limiting phrase . . . ordinarily modifies only the noun or phrase that it immediately follows.”). The clause provides that testimony from a QEW must support the court’s serious-damage determination. But this testimony need not stand alone. The statute provides that the court’s serious-damage determination must be supported by evidence “including testimony of qualified expert witnesses.” 25 U.S.C. § 1912(f) (emphasis added). “Include” means “[t]o contain as a part of something.” Include, Black’s Law Dictionary (10th ed. 2014) (emphasis added). So long as the QEW testimony supports the district court’s serious-damage determination, section 1912(f) has been satisfied. In other words, the court may pair the required QEW testimony with other supporting evidence to make its serious-damage determination.

The Alaska Supreme Court is now interpreting the regulations to mean

. . . the primary consideration in determining whether an expert is qualified under ICWA is the expert’s ability to speak to the likelihood of harm to the child if returned to the parent’s custody; knowledge of tribal customs and standards is preferred, but such knowledge alone is insufficient. The experts in Oliver’s and Lisa’s cases, despite their extensive knowledge of tribal cultural standards, do not meet this requirement.

Therefore,

As a tribal elder and leader of his community, Encelewski is clearly qualified to testify to tribal cultural standards and childrearing norms. But nothing in the record shows he has sufficient knowledge, either through his experience on the ICWA committee or from formal training, to discuss specifically how Oliver’s conduct or the conditions in his home were likely to result in serious physical or emotional harm to the child if returned to his care. There is no evidence that the source of Encelewski’s conclusion that Oliver’s behavior would likely harm the child is based on anything other than Encelewski’s extensive life experience as a community leader and grandfather. This is insufficient to qualify him to testify about the likelihood of harm if the child is returned to Oliver. To meet the ICWA standards, Encelewski — as the sole expert testifying in support of terminating Oliver’s parental rights — must have been qualified to testify about that causal relationship; nothing in his testimony supports such a qualification.

Among other things, I believe this means that most QEW trainings for Alaska are going to need to fundamentally change to address this holding, especially for tribes using leaders or child welfare committee members as their QEWs.

Investigation into Marshall Islands Black Market Adoptions

Kate Fort

This issue has been the subject of repeated investigative journalism articles from Civil Beat in Hawaii. Here is the latest regarding an adoption attorney in Texas:

Here

Here

Original Report (with a number of additional articles and links)

Time Magazine on ICWA

Kate Fort

Here

The first four paragraphs of the story:

Each time Elisia Manuel sees her daughter Precious rehearsing traditional basket dancing and humming tribal songs around their home in Casa Grande, Arizona, she’s overwhelmed with emotion. “It’s beautiful to witness,” the mother of three says. “She’s part of the community.”

This wasn’t always guaranteed. Elisia and her husband Tecumseh, who is a member of the Gila River Indian Community, became foster parents in 2012 after learning about the great need for Native American foster families in Arizona. They couldn’t have biological children of their own and felt a deep calling to help other families, Elisia says.

Within two years, the couple had taken in two foster children and adopted three more. Their two adopted sons are biological brothers, and each came to the Manuels when they were just days old.

Their daughter, Precious, also needed to leave her home as a baby but was going to be placed with a non-Native family at first. “She wouldn’t have received any education about her culture,” Elisia says. She knows what that would be like. Elisia’s family is Hispanic and has Apache roots, but, her grandmother was adopted and raised away from her biological family, so Elisia did not grow up learning about Apache culture and is not an enrolled tribal member.