Here is the information on the June 3 tribal consultation on the Adoption and Foster Care Analysis and Reporting System. Comments are due June 18.
Author: Kate E. Fort
2019 ICWA Agents for Notice
This year’s version appears to correct the mistakes in the 2018 list. That means it is even more important to share this year’s list of agents for notice.
2018 ICWA Case Update PowerPoint
I get this request a lot, so here is a pdf of a PowerPoint with detailed citations and information for 2018/annual TICA update. If you need a PPT copy, let me know.
Adoption and Foster Care Analysis and Reporting System (AFCARS) Notice of Proposed Rule Making. Again.
Here.
We cannot currently track on a national level in any way how ICWA works, where children who are involved in ICWA cases are placed, what their outcomes are, or how many cases are transferred to tribal court, as examples. There is barely statewide data available, and most of it is on a county-by-county level. As just one example, Michigan is in a federal lawsuit over its data collection system.
I am deeply tired of hearing that tracking this information is simply too burdensome for the states that are putting children in care, and then getting hit in lawsuit after lawsuit with claims that are not supported by any data, but also cannot be refuted by data we refuse to collect.
If your tribe wants to submit comments, there will be model comments available before the deadline of June 18.
Cert Stage Briefing Completed on Carter v. Sweeney (frmly A.D. v. Washburn)[ICWA]
This is otherwise known as the Goldwater litigation, the second federal case filed back in 2015 in Arizona.
Documents are here
Arizona Court of Appeals Requires Qualified Expert Witness in Guardianships [ICWA]
Although ICWA does not explicitly recognize “permanent guardianships,” a comparison of Arizona’s statute for permanent guardianship and ICWA’s definition for a “foster care placement” shows that ICWA applies in permanent guardianships.
***
Section 1912(e)’s plain language states that no foster care placement, which includes permanent guardianships, may be ordered without expert-witness testimony on whether a parent’s or an Indian-relative custodian’s continued custody of a child will likely result in serious emotional or physical damage to the child. Therefore, a court must hear expert-witness testimony before ordering a permanent guardianship. The record shows that R.Y. was subject to ICWA and a guardianship proceeding took place. Thus, ICWA required the juvenile court to hear expert-witness testimony on whether Mother’s or the Indian-relative custodian’s continued custody of R.Y. would likely result in serious emotional or physical damage to R.Y.
This is a very important point–I get so many questions about the issue of guardianships used to avoid ICWA requirements and about the follow-up about whether a state-initiated proceeding can turn into a fully voluntary one:
Natasha S. also argues that Mother had converted the involuntary dependency into a voluntary matter when Mother petitioned to appoint Natasha S. as guardian, thereby eliminating the need for expert-witness testimony. But all of the proceedings, including the guardianship, arose out of a state dependency action that the Department had initiated. Thus, despite Mother’s motion, this was still an involuntary dependency action and required expert-witness testimony. Moreover, expert-witness testimony is required in voluntary child custody proceedings governed by ICWA. 25 U.S.C. §§ 1903(1)(i), 1912(e); 25 C.F.R. § 23.103(a)(1)
Column on Wayne County and ICWA in Chronicle for Social Change
Some notes.
It’s a federal requirement to inquire about a child’s tribal citizenship regardless of state law. There are eight states with comprehensive state ICWA laws (the article is missing California and Wisconsin), and that doesn’t count states that have incorporated the regulations into law (Louisiana) or have other elements of ICWA in their laws.
I know the lawyer he is referring to–s/he did not drive 300 miles for every hearing, but when no one would call the tribe back or answer the phone for a hearing s/he sure did.
ICWA is a remedial statute designed to change state practice, not tribal.
It might be worth mentioning that Michigan has twelve federally recognized tribes, and while the total population of Native children might be small, we are still putting Native children in foster care at disproportionate rates–that said, it’s difficult to tell given the issues with our data collection.
And finally, if you are wondering what ICWA/MIFPA inquiry looks like in Wayne County, here is a colloquy from an unpublished case four years ago:
The Court: All right, the petition is authorized. The children have been
placed with relatives. What else? I guess— is that it? Did anyone ever ask
is there any . . . American Indian heritage in this family? American Indian
heritage?
Ms. Safran (attorney for respondent [parent]): Do you have any Indian heritage in your family?
The Court: Cherokee, Chippewa.
Ms. Safran: There might be some grand— on the grandmother’s side,
what was it? Some time— some type; attenuated.
Ms. Trott (attorney for petitioner [state]): Ms. Topp was told no at the
other—
Ms. Safran: Well, we didn’t have all the parties.
Ms. Topp (case worker): I talked to [respondent], as well, in the police station[,] and I was told no.
Ms. Safran: She doesn’t think—
The Court: You don’t have any kind— are you sure it’s American, or, any
idea what we’re talking about? I mean, what kind of Indian? Cherokees,
Chippewa? I mean, there’s a whole bunch.
Unidentified speaker: I don’t— I don’t know; I can ask.
The Court: And . . . what relative? Grandma? Great-grandma?
Ms. Safran: Your Honor, can we get a date because . . . they want me in
[Judge] Slavens[’ courtroom] and I can’t believe it.
The Court: You’ve got to wait just one second. All right, you can investigate and see. That’s pretty distant; great-grandma is pretty far back. So, I’m
not gonna demand that we send notice.
Ms. Trott: This is on the paternal side? Or maternal? Of which father?
The Court: On the mother’s side or father? It better be a maternal because
right now— all right. You have the right to have this heard by a referee as
to all the children . . . or by a judge with or without a jury, and, of course,
continued right to an attorney at all hearings. We’re setting this for trial?
Ms. Trott: Yes.
In re Harrell, No. 316067, 2014 WL 465718, at *6-7 (Mich. Ct. App. Feb. 4, 2014)
Transfer to Tribal Court [ICWA] Decision out of New York
The child’s attorney opposed the transfer, and the appellate court supported the decision of the Family Court to transfer to the tribe.
Qualified Expert Witness Case from Alaska [ICWA]
This is a case worth reading in its entirety for the discussion of the qualifications of the QEW but also the discussion of the testimony supporting the casual connection between the parents’ behavior and the removal of the children.
This QEW had been a Guardian ad Litem in the Yukon Kuskokwim Delta region for a number of years, however:
She agreed that she had no formal education in psychology, mental health, chemical dependency, substance abuse, social work, or therapy, and she did not recall having read any scholarly literature in these areas. She acknowledged that she was unable to “diagnose mental health issues,” though she testified she could recognize them based on her experience as an attorney and a GAL. But she further admitted that she did not use “any documents or models, like professional references, in order to make those conclusions”; she relied solely on her experience as an attorney and a GAL.
Then, she
did not address causation, as framed in the regulation, by testifying about how Keith and Eva’s conduct was likely to cause “serious emotional or physical damage to” the two boys. She drew no connections between specific conduct
and the likelihood of specific harm. We have held in the past that expert testimony need not directly address every aspect of this element of a termination decision; trial courts are allowed to consider “reasonable inferences from the expert testimony, coupled with lay witness testimony and documentary evidence from the record.” But when expert testimony is required in order to support termination in ICWA cases, trial courts may rely on reasonable inferences only from the testimony of witnesses who are qualified to testify on the subject.
Turtle Talk 
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