Child Welfare

Reminder: AFCARS Comments on ICWA Due April 23

Kate Fort

I posted about this here, and comments are due April 23. The Indian Law Clinic should have a model comment available for tribes to use and edit by the end of next week.

This rule proposes to require states that receive federal funding for their foster care systems to gather accurate data on children in state courts who are subject to ICWA’s protections. This is done through the Adoption and Foster Care Analysis and Reporting System (AFCARS) If you are a state worker, please encourage your state agency to comment in favor of this rule.

The proposed rule is here and is nearly identical to the one promulgated in 2016 (and then withdrawn by the Trump administration).

ProPublica Follow Up Article on Bonding “Expert”

Kate Fort

In a follow up to the foster parent intervention article that was published in ProPublica and The New Yorker in October, this week ProPublica published an article on the woman who regularly wrote expert reports supporting foster care placement over parents and relatives.

Here.

Who hired and was paying her in the case that she was being deposed about? The foster parents, she answered. They wanted to adopt, she said, and had heard about her from other foster parents.

Had she considered or was she even aware of the cultural background of the birth family and child whom she was recommending permanently separating? (The case involved a baby girl of multiracial heritage.) Baird answered that babies have “never possessed” a cultural identity, and therefore are “not losing anything,” at their age, by being adopted. Although when such children grow up, she acknowledged, they might say to their now-adoptive parents, “Oh, I didn’t know we were related to the, you know, Pima tribe in northern California, or whatever the circumstances are.”

The Pima tribe is located in the Phoenix metropolitan area.

The Way Forward: Report of the Alice Spotted Bear and Walter Soboleff Commission on Native Children

Matthew L.M. Fletcher

Here.

thewayforwardDownload

First Tribal Title IV-B 477 Integration

Kate Fort

I am very excited about this. It’s the first step in loosening up the restrictions on HHS money that needs to be flowing to tribes for social service and justice systems.

https://www.acf.hhs.gov/media/press/2023/first-tribal-integration-title-iv-b-child-welfare-programs-477-plan

The new integration comes under Public Law 102-477 (P.L. 102-477). Specifically, ACF recommended, and BIA approved for Citizen Potawatomi Nation, to integrate its child welfare services grants with several other federal grants for employment, training and related services into a single program and budget to address Tribal priorities. 

“Public Law 102-477 has long been critical legislation for ACF to promote Tribal sovereignty, and expansion to include new ACF programs helps meet our nation-to-nation responsibilities,” said ACF Acting Assistant Secretary Jeff Hild. “The feedback we hear from our Tribal advisory committee and Tribal leaders is Tribes know best how to serve their citizens, and 477 is one way to do this.” 

Under P.L. 102-477, Tribes can integrate their federal employment, training and related services from across the federal government to improve the effectiveness of those services. Tribes wishing to integrate a program into a 477 plan must first submit a proposed plan to DOI that identifies the programs to be integrated and consolidated. Once a program is included in such a plan, Tribes have very broad flexibility in use of those funds. 

Comment Deadline to Feds on ICWA Needs Extended to January 12

Kate Fort

This extension is regarding the letter in this post.

The Administration (DOI, HHS, and DOJ) are asking for input on the following:

What additional supports would Tribal leaders find helpful to build their Tribe’s capacity to exercise their rights and responsibilities under ICWA?  

Are there specific supports you believe the federal government could provide to help state courts and child welfare agencies meet their obligations under ICW A? 

In your experience, are there specific aspects or requirements of ICWA where state courts and agencies need to build greater understanding or capacity? 

Are there existing State-Tribe collaborative partnerships or processes that you believe have helped support effective implementation ofICWA? 

icwa_dear_tribal_leader_letter_to_extend_comment_deadline_enrd_comment_hhs.doj_.doi_final_10.06.23Download

Important Article on the Rise of Foster Parent Interventions in The New Yorker/ProPublica

Kate Fort

I’ve been posting and talking about this issue for a while now, and am very happy to see it highlighted in this article. The Colorado Office of Respondent Parents’ Counsel has been collecting incredibly important data (headed up by a proud MSU alum!) on what happens when foster parents intervene. I strongly encourage anyone in the position to do so to begin collecting this same data.

https://www.propublica.org/article/foster-care-intervention-adoption-colorado

Intervenors can file motions, enter evidence and call and cross-examine witnesses to argue that a child would be better off staying with them permanently, even if the birth parents — or other family members, such as grandparents — have fulfilled all their legal obligations to provide the child with a safe home. When Carter’s foster parents intervened in the hope of keeping him, they turned to the firm of Tim Eirich, a Denver adoption attorney who charges as much as $400 an hour and has almost single-handedly systematized intervention in Colorado.

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The Trump and Biden administrations have both pressed states to keep a larger percentage of kids with birth parents or kin. Intervention, a state-level counter-trend, is supported by foster parents’ rights groups and advocates at national conservative organizations.

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Since 2018, South Carolina’s courts and lawmakers have affirmed the right of any state resident to file to adopt any foster child, as well as the right of foster parents to intervene. In 2020, Kentucky amended its law to let foster parents intervene as legal parties in involuntary terminations of birth parents’ rights. And this year Florida passed a law saying that if birth parents move to have their child adopted, including by a biological family member, long-term foster parents can intervene to contest that outcome. Kathryn Fort, the director of the Indian Law Clinic at Michigan State University, told me that her practice has faced three sets of intervenors this year, all of them non-Native couples seeking to adopt a Native child.

Second ULC Listening Session on Uniform State ICWA Law on Nov. 6

Kate Fort

In a letter that went out on September 26, the Uniform Law Commission announced a second listening session on the benefits and drawbacks of a potential model state ICWA law.

TribalLeaderLetter_092623

The registration link is here

 

 

Dear Tribal Leader Letter Regarding Uniform State ICWA Law

Kate Fort

The Uniform Law Commission is seeking to consult with tribes regarding the need and/or benefit of a uniform ICWA law for those states that either need to update their current state laws or do not have one yet. Consultation will be held via zoom on September 6, with written comments accepted through September 30. Please see the letter for additional details on the project. Please distribute widely.

ULC ICWA Committee Report to Scope Committee

Dear Tribal Leader Letter

State ICWA Law Chart

Kate Fort

Over the last week, I’ve put together a (large, clunky) Google sheets of all the state ICWA laws. It isn’t perfect and subject to change as I see problems or people tell me there are problems. Sheets can be difficult, but it is nice to use to keep it updated. Someday I’ll learn how to make a proper database, but I know there is a need for this now rather than later.

I’ve linked to it on the state law page here and the link directly to the sheet is here.

Eighth Circuit Holds Parental Kidnapping Prevention Act Does Not Apply to Tribes

Kate Fort

Decision

It is true that Indian reservations are “physically within the territory of the United States.” United States v. Wheeler, 435 U.S. 313, 322 (1978) (emphasis added). The PKPA’s definition of “State,” however, includes “a territory . . . of the United States,” 28 U.S.C. § 1738A(b)(8) (emphasis added), which is most naturally understood to mean a political entity that is not a state but is still “[a] part of the United States . . . with a separate legislature (such as Guam and the U.S. Virgin Islands).” Territory, Black’s Law Dictionary (11th ed. 2019); see, e.g., 48 U.S.C. § 1541(a) (“The Virgin Islands . . . are declared an unincorporated territory of the United States of America.”). And the Supreme Court has made clear that within our constitutional order, such “territories” are distinct from Indian tribes.

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Our conclusion that the PKPA does not apply to Indian tribes is further supported by the fact that when Congress intends for tribes to be subject to statutory full-faith-and-credit requirements, it expressly says so.

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For the reasons explained above, we conclude that the PKPA does not apply to Indian tribes. As a result, the Cheyenne River Sioux Tribal Court is not obligated under that statute to enforce the North Dakota court orders awarding custody of C.S.N. to Nygaard. The district court properly granted summary judgment to the Tribal Court.