Including Matthew Fletcher, Susan Harness, Margaret Jacobs, Judge Maldonado, and Mark Fiddler.
Child Welfare
Michigan Bar Journal Article on the Michigan Indian Family Preservation Act
Norika L. Kida Betti and Cameron Ann Fraser have published “Michigan Indian Family Preservation Act at Seven Years” in the November 2019 issue of the Michigan Bar Journal.
Washington Post on Brackeen v. Bernhardt [ICWA]
Here.
In the 40 years since Congress enacted the Indian Child Welfare Act, the law has been criticized in legal challenges that have climbed all the way to the U.S. Supreme Court. But the ICWA, as the act is known, has always prevailed.
Now its constitutionality is being questioned again. On Thursday, the U.S. Court of Appeals for the 5th Circuit agreed to rehear a lawsuit filed by a non-Native American couple in Texas claiming the ICWA discriminates on the basis of race and infringes on states’ rights.
***
Kathryn Fort, a Michigan State law professor and one of the nation’s foremost ICWA experts, told The Washington Post she thinks there are more important battles to wage on behalf of children.
“Given that a federal judge this week fined Texas $50,000 a day until they fix their broken child welfare system,” Fort said, “it seems beyond the pale for them to try to continue to strike down a law that is designed to help children and families in that very system heal and reunify.”
Fifth Circuit Grants En Banc Review of Brackeen v. Bernhardt [ICWA]
Tribal Intervenor Statement here:
FOR IMMEDIATE RELEASE
November 7, 2019
Contact: Tania Mercado tmercado@skdknick.com
Native American Tribes Continue to Stand with Indian Children and Families Following Court Decision to Rehear Fifth Circuit Case
WASHINGTON, D.C. – Today, Cherokee Nation Principal Chief Chuck Hoskin, Jr., Morongo Band of Mission Indians Chairman Robert Martin, Oneida Nation Chairman Tehassi Hill and Quinault Indian Nation President Fawn Sharp issued the following statement in response to the Fifth Circuit Court of Appeals decision to rehear a challenge to the Indian Child Welfare Act en banc:
“We never want to go back to the days when Indian children were ripped away from their families and stripped of their heritage. We continue to believe that the Fifth Circuit decision affirming the constitutionality of ICWA was the right decision. While it is unfortunate that the attacks on this critical law continue, we are confident that the court will once again uphold the constitutionality of ICWA, as courts have repeatedly done over the past 40 years. ICWA provides a process for determining the best interests of Indian children in the adoption and foster care systems, which is why it is overwhelmingly supported across the political spectrum. We remain devoted in our efforts to defend ICWA because our number one priority remains fighting for the wellbeing, health and safety of children and families.”
In 2017, individual plaintiffs Chad and Jennifer Brackeen, a couple from Texas, along with the state attorneys general in Texas, Louisiana, and Indiana, sued the U.S. Department of the Interior and its now-former Secretary Ryan Zinke to challenge ICWA. The Morongo, Quinault, Oneida and Cherokee tribes intervened as defendants in the case Brackeen v. Bernhardt.
In October 2018, a federal judge in the Northern District of Texas struck down much of ICWA. Defendants appealed the lower court’s decision and asked the Fifth Circuit Court of Appeals to reverse the decision. Last December, the Fifth Circuit Court of Appeals granted a stay requested by the defendants, putting a hold on the ruling. In March 2019, the Fifth Circuit Court of Appeals heard oral arguments from plaintiffs and defendants in the Brackeen case.
On August 9, 2019, the Fifth Circuit Court of Appeals reaffirmed that the Indian Child Welfare Act is constitutional and serves the best interests of children and families. On October 1, 2019, plaintiffs in Brackeen v. Bernhardt chose to continue their attacks on Indian children and tribal families and requested an en banc rehearing before the Fifth Circuit.
There is broad, bipartisan support against this misguided attack on a law that is crucial for protecting the well-being of Indian children and Indian sovereignty. A total of 21 attorneys general, representing a broad range of states, filed an amicus brief in support of the defendants, arguing that ICWA is an appropriate exercise of Congress’s authority to legislate in the field of Indian affairs and does not violate the Tenth Amendment or equal protection laws. The Trump administration has also reiterated its support for ICWA, tribal sovereignty and the safety of Indian children.
An additional 325 tribes, 57 tribal organizations, members of Congress, Indian law and constitutional law scholars, and 30 leading child welfare organizations have also filed friend-of-the-court briefs in support of the defendants.
For additional information on this case and the Indian Child Welfare Act please visit: http://www.ProtectIndianKids.com.
###
Active Efforts Case out of Montana [ICWA]
Just yesterday, a colleague mentioned an article I wrote a few years ago in the Federal Lawyer about ICWA and military families, and I said, yes, we really need to update that. And today, I read this case:
Father was present at the March 23, 2017 adjudication hearing and stipulated to
adjudication of Child as a YINC and stipulated to the proposed treatment plan.1 At this time, Father was participating in the Veterans’ Treatment Court (VTC). As the Department did not want to duplicate services, the Department agreed that tasks Father successfully completed in VTC would satisfy tasks delineated in his treatment plan.***
Father continued to participate in VTC. Throughout his participation and beyond
his successful graduation from VTC on August 7, 2018, CPS repeatedly reported Father was doing well and did not indicate dissatisfaction with Father’s compliance with his treatment plan or level of engagement with the Department.***
In the permanency plan filed with the court on February 2, 2018, the Department
wrote “the permanency plan for the child is reunification with the birth father once he has completed Veterans Court.” Approximately one month later, the Department abruptly changed course. On March 22, 2018, CPS and his supervisor met with Father to discuss reunification and gave him a letter, advising Father that he needed to step-up his parenting by April 19 or the Department would file for termination. . . . This letter basically advised Father it was time to sink or swim as a parent. Here, over a year into the case, was the first time the Department expressed that Father was not meeting the Department’s expectations in terms of compliance with his treatment plan and engagement with the Department.***
Less than two months later, on September 7, 2018, the Department filed to terminate Father’s parental rights for failure to complete his court-ordered treatment plan.In the accompanying affidavit, CPS listed the following efforts he considered to be active efforts taken by the Department:
(a) Investigation into the current report;
(b) Review of prior reports/investigation;
(c) Interviews with collateral contacts;
(d) Communication with Benefis Labor and Delivery / NICU;
(e) Ongoing Collaboration with placement, [M.D.];
(f) Conducted diligent search to locate extended family;
(g) Ongoing communication with Allen Lanning, counsel for birth father;
(h) Communication with Probation and Parole.Prior to filing the termination petition, there is nothing in the record evidencing the Department had even referred Father to any ancillary services required by the treatment plan—parenting classes, mental health assessment or anger management classes—or assisted father in addressing the transportation, daycare, or housing deficiencies asserted by the Department in its March letter.
In “good” news, the Court held the Department did not accomplish active efforts and reversed the termination order, as it should, because none of those things listed above are active efforts, and frankly are not even reasonable efforts.
Difficult Case out of California [ICWA]
The question of whether Mom could have her child back with his siblings came down to his best interest–which kept him in the guardianship, despite the mom’s sobriety, job, handling a child with cancer, and raising a number of children. The Tribe, fearful of losing contact with the child entirely if they picked a side in the case, supported the mom but also ended up not weighing in on the final decision, instead asking the court to order whoever had the child keep him in contact with the Tribe. But this conclusion from the court is simply heartbreaking. It is not clear the child is related to the guardians, and as such the court equates a biological parent to non-relative foster care in a troublesome way:
We recognize this case was a difficult one for the juvenile court, not least because it was forced to choose between two families, both of whom love minor very much and both of whom may have been able to provide a stable, loving home where he remains connected to his siblings, other relatives, and his tribe. We can only express our hope, as did the juvenile court, that these families can find a way to remain connected in the interest of allowing minor to be loved and cared for by as many people as possible. It is also a difficult case because mother demonstrated her commitment to regaining custody by complying with her case plan, maintaining her sobriety and full employment, and garnering the support of the Department and the Tribe to have minor returned to her care. *** On this record, we perceive no abuse of discretion in the juvenile court’s determination that mother failed to meet her burden to demonstrate return to mother’s custody would be in minor’s best interest.
And no, I don’t entirely understand why the court isn’t using much higher ICWA standards here.
ICWA Article in the Deseret News
SALT LAKE CITY — Over the summer, Shari Pena’s 3-month-old foster son chuckled for the first time when his older sister sneezed, kicking off a new family tradition.
The Penas gathered to celebrate the giggle, a milestone in the child’s Navajo culture. They shared a chicken and rice dish in their West Valley home and took a pinch of salt from the baby’s palm, a gesture symbolizing his generosity.
As the federal law governing child welfare cases for Native American children has withstood recent legal challenges in Utah and in other states, the Penas are among those cheering the victories. The Indian Child Welfare Act sets special standards in the adoption and foster care proceedings and gives preference to Native American families — part of an effort by Congress to correct historical bias against them.
“It’s important that these kids stay in native homes,” Pena said. “We understand one another, our past and our ancestors.”
Pena, a citizen of the Cherokee Nation, said certain aspects of Navajo culture mirror her own upbringing in Oklahoma, including a strong focus on family. For newer factors like the first laugh party, she seeks guidance from the child’s biological grandmother and his four foster siblings.
Briefing Complete in Brackeen v. Bernhardt En Banc Petition
Documents here.
The Tribes and U.S. did not seek any amicus support in opposing the petition for en banc review.
QEW Case out of the Colorado Court of Appeals [ICWA]
Here.
The question is whether the parent should have had attorney representation during the interview with the qualified expert witness. This is a really interesting question, especially given that in this case the mother was assigned her own Guardian ad Litem. The Court ultimately held that she did not have the right to representation during the interview and upheld the termination of parental rights.
Jurisdiction Case out of the Arizona Court of Appeals [ICWA, UCCJEA]
Here.
This case has gone up a couple of times.
Turtle Talk 
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