Qualified Expert Witness Decision for NM Court of Appeals

I’ve been watching the qualified expert witness decisions coming in that are finally starting to wrestle with both the Regulations and the Guidelines, and I think they are narrowing in on conflicting requirements that will likely make it increasingly difficult to find a QEW. 

First, the purpose of the QEW is for the state to find a witness (hopefully in collaboration with the Indian child’s tribe) that agrees a child needs to go into foster care or agree with a termination of parental rights. This is an attempt to address state bias, obviously, in the removal of Native children. The law only requires the testimony of the QEW support the findings, and doesn’t specifically require magic language from the QEW. The Regulations are fairly thin on the requirements of a QEW but there are two major elements:

“A qualified expert witness must be qualified to testify regarding whether the child’s continued custody by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child and should be qualified to testify as to the prevailing social and cultural standards of the Indian child’s Tribe.” 25 C.F.R. 23.122

This decision from New Mexico finds the QEW was qualified on the social and cultural standards, but was not on the serious emotional or physical damage to the child. There is a similar decision on this from Alaska, and really problematic language in the Guidelines that is leading to the focus on the specialized expertise of the witness regarding the ability to testify about continued custody and a de-emphasis on the social and cultural standards of the Tribe. I personally have mixed feelings about this, but I would advise practitioners to read this opinion especially as to laying the foundation for the testimony of the QEW. And I’d also reiterate my usual advice that Tribes can always introduce their OWN witness to address cultural tribal issues. 

Footnote in Indiana Court of Appeals Child Welfare Case

This case is also unreported, and not notable for any ICWA holding except for footnote 4, which highlights how ICWA is USUALLY challenged:

4 Again, DCS alleges Parents have waived this issue for failure to raise it below. Parents did argue to the juvenile court during closing argument that the standard of proof should be beyond a reasonable doubt. See Tr., Vol. 2 at 95. They did not, however, offer any basis for that assertion, least of all a state or federal constitutional basis. As DCS points out, in order to properly preserve an issue for appeal, “[a]t a minimum, a party must show that it gave the trial court a bona fide opportunity to pass upon the merits of the claim before seeking an opinion on appeal.” Endres v. Ind. State Police, 809 N.E.2d 320, 322 (Ind. 2004). The juvenile court did not have that opportunity below.


Although we consider Parents’ state due process claim notwithstanding waiver for the same reason we exercised our discretion to decide the jury trial issue, supra n.2, we decline to consider the waived federal equal protection claim. Parents’ equal protection argument is based on the fact that the Indian Child Welfare Act provides that parental rights of Native Americans may be terminated only upon evidence beyond a reasonable doubt. See 25 U.S.C. § 1912(f). The right to a jury in juvenile proceedings and the scope of the state due process clause are matters of settled law in Indiana. But Indiana courts have not had occasion to consider whether the differing state and federal standards violate equal protection, and we will not undertake that analysis when it was not developed at all in the juvenile court and is raised for the first time on appeal.

Waiver notwithstanding, we note that the United States Supreme Court has routinely rejected claims that laws that treat Native Americans as a distinct class violate the equal protection rights of non-Native Americans, see, e.g., United States v. Antelope, 430 U.S. 641, 646 (1977) (concluding “federal regulation of Indian affairs is not based upon impermissible classifications”), and states that have had occasion to consider whether their clear and convincing standard violates the equal protection clause have found no violation, see, e.g., Matter of M.K., 964 P.2d 241, 244 (Okla. Civ. App. 1998) (holding heightened burden of proof required for termination of Native American parental rights is “rationally tied to Congress’ responsibility for policy toward [Native American] families” and lower state standard did not violate non-Native American father’s right to equal protection).

In other words, the Non-Native parents would like to have the same protections ICWA provides Native families.

Unreported Transfer to Tribal Court Decision out of Minnesota

I get asked a lot–just last week, in fact–to address the claim that Native children are often ripped from loving foster homes where they have been for a long time because the Tribe wants something different. I think the fact pattern in this case is more usual–the child was in the home (an Indian foster home) for five months when the Tribe requested visitation between her and her grandmother. Within a year, the state child welfare department petitioned to move the child to her grandmother. The original placement was always a foster placement and ICWA applied to this child from very early on in the proceedings. Moving a child to a permanent relative home within a year is very fast for a child welfare case. And yet still, the foster family intervened and attempted to stop the transfer to tribal court and regain custody of the child. 

The Court of appeals here affirmed the lower court’s decision to transfer. 

Paternity and ICWA Decision out of Colorado Court of Appeals

This is part of a small collection of state court decisions (In re B.B., Utah, Bruce L., AK) interpreting ICWA’s paternity definition, and also applying ICWA to paternity proceedings. It also addresses the issue of biological father (required by ICWA) and presumed father (defined by the Uniform Parentage Act).

ICWA Decision out of Missouri on Tribal Intervenor (Relator) Standing and Writ of Prohibition

From the facts in this opinion, it’s clear this is a pretty contested post termination of parental rights/foster care adoption case from the southern district of Missouri (Poplar Bluff, Springfield). What is not in the opinion but is available on the Westlaw decision page are the attorneys involved in the case. I’m sure it’s some local southern Missouri attorneys:

Attorneys for Relator – Heidi Doerhoff Vollet of Jefferson City, MO; James R. Layton of St. Louis, MO
Attorney for Respondent Judge – Scott S. Sifferman Acting Pro Se
Attorneys for Minor – William Petrus of Mt. Vernon, MO (GAL); Matthew D. McGillDavid W. Casazza, Robert Batista, Todd Shaw of Washington, D.C.
Attorneys for Respondents Foster Parents – Toni M. Fields of Cassville, MO; Paul Clement, Erin Murphy of Washington, D.C.; Kevin Neylan of New York, NY

Huh.

Even so! In this case, the Court of Appeals found the Choctaw Nation had standing to to bring the writ of prohibition against the judge and the Court of Appeals entered the writ (Respondent is the trial judge)(also, this is why formal legal intervention is so important for tribes whenever possible)(also why it’s good to find local family law attorneys who can talk about things like “writs of prohibition” with expertise):

In his brief, Respondent argues that the Choctaw Nation does not have standing to seek this writ of prohibition. On two occasions, Respondent granted the Choctaw Nation the right to intervene in this protective custody proceeding under 25 U.S.C. § 1911(c), and also granted the Choctaw Nation the right to intervene in Foster Parents’ adoption proceeding. We see no error in these rulings. The Choctaw Nation has standing to seek
this writ of prohibition.

***

Respondent did not have the express or implied authority to interfere in the Children’s Division’s administrative review of a nonfinal administrative recommendation for adoption, and then substitute Respondent’s judgment for that of the Children’s Division and compel the Children’s Division to reach or adhere to a particular recommendation.

Reported N.C. ICWA Notice Case

There’s not much groundbreaking about this ICWA notice case, but this information did catch my eye. A letter from the BIA apparently stated:

The Bureau of Indian Affairs specified in relevant part as follows:

a. The BIA acknowledges that you have notified the family’s identified Tribe(s) Tuscarora, Tonawanda, Mohawk, Seneca, Oneida, EBCI, Cayugo, Onondaga, and Keetoowah based on your inquiry with the family according to 25 U.S.C. § 1912.

b. You have identified that Onondaga and Keetoowah have not responded. At this point, you have done due diligence and completed your ICWA responsibilities.

Do people regularly get letters where the BIA states the agency has “completed [its] ICWA responsibilities?” I haven’t seen this entered as evidence in other cases, so I’m curious. According to the record, this came from the BIA regional office in Tennessee.

Four Cert Petitions Filed in Texas v. Haaland [Brackeen ICWA Case]

Today Texas, the individual plaintiffs, the Solicitor General, and the intervening tribal nations filed petitions for certiorari with the U.S. Supreme Court asking the Court to review the Fifth Circuit decision regarding the constitutionality of the Indian Child Welfare Act. There will be some additional briefing over the next 30 days, and then/eventually the Court will decide whether to hear the case or not.

The Indian Law Clinic at MSU Law represents the intervening tribes in this case.

Season 2 of This Land Podcast Debuts August 23

Here

This season is all about the Indian Child Welfare Act and the federal attacks on it.

ALM – as referred to in court documents – is a Navajo and Cherokee toddler. When he was a baby, a white couple from the suburbs of Dallas wanted to adopt him, but a federal law said they couldn’t. So they sued. Today, the lawsuit doesn’t just impact the future of one child, or even the future of one law. It threatens the entire legal structure defending Native American rights. 

In season 2 of This Land, host Rebecca Nagle investigates how the far right is using Native children to quietly dismantle American Indian tribes. 

Tune in beginning August 23rd.

Transfer, Termination Case out of South Dakota Supreme Court [ICWA]

There is a lot going on in this case, including issues involving a GAL (best interests attorney) advocating for best interests rather than the child’s state interests and opposing transfer to tribal court, transfer to tribal court issues, and termination of parental rights issues. The Tribe made a solid run at trying to get the GAL removed for a stated interests attorney. South Dakota law is pretty clear that the appointed attorney for a child should be a BI attorney, and the Court stated:

We adopt this approach as it relates to a child’s attorney appointed in abuse and neglect proceedings pursuant to SDCL 26-8A-18. The child’s attorney appointed pursuant to the statute is required to advocate for the child’s best interest. However, when the attorney’s determination of what constitutes the child’s best interest conflicts with the child’s expressed wishes, the ethical obligations of the attorney require consultation with the child to insure that the child’s objectives are presented to the court, along with the basis for the attorney’s determination of the child’s best interest. This approach “gives priority to the paramount goal of discerning the child’s best interest while enabling the lawyer to advocate an opposing viewpoint without fear of ethical violation.” J.P.B., 419 N.W.2d at 392.

Ultimately the child did testify (which, ooof, if you read the opinion), and the Court affirmed the termination and the denial of transfer. 

Active Efforts Case from South Dakota Supreme Court [ICWA]

South Dakota is sending us into the weekend with a positive attitude with this decision. In a shocking development [not shocking] it turns out that if an agency “ceased providing any efforts toward reunification after the December 2019 hearing. This means that from December 2019 to September 2020 no efforts were made by DSS to provide Mother remedial services or rehabilitative programs and no efforts were made to reunite C.H. with Mother” then, “[t]he circuit court’s finding of fact to the contrary—that DSS ‘has been providing active efforts to this family since October 2, 2018; including in-home services to prevent placement, and ongoing services to allow safe return of the child to no avail’—is not supported by the record. To the extent this finding suggests that DSS’s efforts were ongoing up to the point of the dispositional hearing, it is clearly erroneous.”

Unusually, I didn’t add any of the italics. That’s all the South Dakota Supreme Court. 

Also, anyone else get excited when a Court starts a paragraph like this: “Because this error [termination of parental rights] requires a remand, we take this opportunity to address additional errors that occurred below to prevent their reoccurrence.”?  _insert eating popcorn emoji_

So, in addition to not appointing the child an attorney despite state law requiring it, the Court also says “Second, although not raised as an issue on appeal, there are glaring defects involving ICWA mandates in the underlying proceeding that we cannot ignore.” The QEW testimony did not satisfy the evidentiary burden, and the court found that termination was not the least restrictive alternative given the child’s best interests. 

Mom did a ton of work on her own in this case despite and in spite of the state’s inaction. The Court’s recognition of this is a welcome change from most child welfare decisions.