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.

Improper Removal Case out of Washington Court of Appeals [ICWA]

Today I received a call that went something approximately like this:

Caller: “So with [25 U.S.C.] 1920 …”

Me: “Right, 1922, go on.”

Caller: “Um, ok, so with 1920 . . .”

Me: “I think you mean 1922?”

Caller: “I think I mean 1920?”

Reader, she absolutely meant 25 U.S.C. 1920, and also had the patience to hang in there with me and tell me about the following case:

Here is an opinion from the Washington Court of Appeals decided in January and published in April that I completely missed and is also the only and first case I’ve encountered in five years of reading (nearly) every ICWA case where the court used 25 U.S.C. 1920:

¶30 Both ICWA and WICWA have provisions for the appropriate remedy when an Indian child is improperly removed by the State from his or her home or the State improperly maintains custody. Under ICWA,

[w]here any petitioner in an Indian child custody proceeding before a State court has improperly removed the child from custody of the parent or Indian custodian or has improperly retained custody after a visit or other temporary relinquishment of custody, the court shall decline jurisdiction over such petition and shall forthwith return the child to his parent or Indian custodian unless returning the child to his parent or custodian would subject the child to a substantial and immediate danger or threat of such danger.

25 U.S.C. § 1920. Similarly, under WICWA,
[i]f a petitioner in a child custody proceeding under this chapter has improperly removed the child from the custody of the parent or Indian custodian or has improperly retained custody after a visit or other temporary relinquishment of custody, the court shall decline jurisdiction over the petition and shall immediately return the child to the child’s parent or Indian custodian unless returning the child to the parent or Indian custodian would subject the child to substantial and immediate danger or threat of such danger.

RCW 13.38.160.

¶31 Here, the Department has improperly maintained A.L.C’s placement in out-of-home care because the Department has failed to provide active efforts to prevent the breakup of the Indian family. The appropriate remedy is the remedy prescribed by statute. Thus, we remand to the juvenile court to either immediately return A.L.C. or make the statutorily required finding that returning A.L.C. will subject her to substantial and immediate danger or threat of such danger.

Emphasis added.

Bill C-92, An Act Respecting First Nations, Inuit and Métis Children, Youth and Families

Government Bill (House of Commons) C-92 (42-1) – Royal Assent – An Act respecting First Nations, Inuit and Métis children, youth and families – Parliament of Canada

Somehow the final passage (“royal assent”) of this bill in Canada slipped our attention back in June. Initially, we saw it referred to as a “Canadian ICWA”, but it seems fair to say that it doesn’t quite achieve that level of protection for Native children and families. If nothing else, it illustrates just how differently the Canadian government engages with the tribal nations within its borders compared to the U.S.. We want to add a large caveat, which is that none of us are experts on Canadian law or child welfare.

However, those that are put together a really helpful publication which is available here, and is well worth your read (it made us think about if ICWA would get passing grades):

does-bill-c-92-make-the-grade_-full-report

From the Jurisdiction section of the report:

Why We Give the Bill a ‘D’ on this:

IN A HISTORIC FIRST FOR CANADA, the Bill purports to recognize Indigenous peoples’ inherent jurisdiction. For example, section 8(a) of the Bill affirms “the rights and jurisdiction of Indigenous peoples in relation to child and family services”. This positively worded language is also noted in the Bill’s introduction and summary. Similarly, section 18(1) states that the “inherent right of self-government recognized and affirmed by section 35 of the Constitution Act, 1982 includes jurisdiction in relation to child and family services, including legislative authority in relation to those services and authority to administer and enforce laws made under that legislative authority.” Section 18(2) affirms that this right includes the right to “provide for dispute resolution mechanisms.”

As there are no section 35 cases that recognize an inherent right of self-government for Indigenous Peoples or that have recognized an Aboriginal or Treaty right over child and family services law-making, this is a significant step forward.

This is not, however, a recognition of jurisdiction that removes all federal or provincial oversight, power or intervention. By recognizing jurisdiction over child and family services as a section 35 right, the federal government immediately re-asserts its power to unilaterally infringe or limit that right, a power upheld by court cases such as Sparrow. The legislation sets legal limits in terms of Indigenous laws being subject to Charter and Canadian Human Rights Act and the BIOC. It also sets practical limits in terms of the virtual necessity of negotiating coordination agreements with the federal and provincial governments, and in the glaring absence of any provisions for funding. At best, this could be interpreted as an acknowledgment of concurrent (or shared) jurisdiction, a matter on which Bill C-92 should be more clear.

***

Further, section 23 states Indigenous laws only authoritative if they can be applied in a way that “is not contrary to the best interests of the child.” As previously stated, Indigenous laws have upheld the best interests of Indigenous children for thousands of years. The concern about this limit is how the BIOC doctrine has been interpreted and applied by courts, non-Indigenous governments and decisions makers to apprehend Indigenous children and separate them from their families, communities and territories for the past 50 plus years.

Reason to Know Decision from Washington Court of Appeals [ICWA]

Here.

ICWA and WICWA require a court conducting a 72-hour shelter care hearing to inquire whether the child is or may be an Indian child. A court substantially complies with that requirement if prior to the hearing the Department has begun a good faith investigation into the child’s Indian status, the parties elicit the relevant evidence during the hearing, and the court considers that evidence before ruling on shelter care.

Ok, sounds good.

The reason-to-know standard turns on evidence that the child is a tribal member, or the child is eligible for tribal membership and a biological parent is a tribal member. If there is a reason to know a child is or may be an Indian child, then ICWA and WICWA require the court to treat the child as an Indian child pending a conclusive membership determination by a tribe. A parent’s mere assertion of Indian heritage absent other evidence is not enough to establish a reason to know a child is or may be an Indian child. Because the Department’s good faith investigation before the shelter care hearing did not reveal evidence that a parent or a child was a tribal member, the court did not err in concluding that there was no reason to know the children were Indian children based on the evidence available at the time of the shelter care hearing, Of course, the Department has an obligation to continue its investigation before proceeding to a dependency or termination hearing.

Oohkay. Then what did the investigation reveal?

The investigation revealed that the mother was eligible in the Central Council of Tlingit and Haida, where her mother is enrolled, the Klawock Cooperative Association, and that father was potentially eligible at Umatilla.  This was not just the parent’s assertion (which frankly, given the specificity, should be enough*)–this included the testimony of the social worker who called Central Council. It turns out what this Court means by reason to know is actual evidence of membership:

Because the Department’s good faith investigation before the shelter care hearing did not reveal evidence that a parent or a child was a tribal member,

The children were removed on June 27. The first hearing (shelter care) took place on July 2-3. At that point, the state social worker had called Central Council and knew grandma was enrolled, but not mom. She then testified that “to her knowledge”, dad was not enrolled, but there is nothing in the opinion on how she would know that. The social worker then testifies it was possible the children were eligible for enrollment.  But then, the court’s shelter care order states there is “not a reason to know” the children are Indian children. When Central Council intervenes in the case on July 30, the Court then decided there was reason to know (well, yes, because then we all know).

Everyone knows (ahem) that three-five days is not enough time for a full notice as required by the law (by mail, return receipt requested). Those of us who do this work ALSO know it may take a tribe longer than that to determine membership. The purpose of the Regs (to treat potential/reason to know Indian children as Indian children until determined otherwise) was to ensure those children were treated as Indian children until membership is all sorted out. The Washington Court of Appeals manages to do the opposite–equating “reason to know” with just plain old “know”. Why does this all matter? The legal standard applied at the shelter care hearing:

Specifically, the information before the court at the shelter care hearing as a
result of the Department’s good faith investigation did not establish a reason to know Z.G. and M.G. were Indian children. Because there was no reason to know,
the normal serious threat of substantial harm standard applied at the shelter care hearing.

Unless a Tribe responds the parent is absolutely a member at that first phone call from the state (not even legally required notice), or the parent happens to have legal evidence of membership on him or her, Washington will claim there is no reason to know, and apply a lower burden of proof than the emergency standard required by ICWA under 1922.

*I decided not to rant about why the parent’s testimony isn’t enough/why parents in court aren’t listened to, but imagine I did.

Qualified Expert Witness Case out of Utah Court of Appeals [ICWA]

Here.

In this case, the GAL petitioned to remove the child from the mother’s care. This GAL has considerable issues with the application of ICWA:

The GAL argued that since ICWA does not explicitly
define what qualifies a witness as an expert, the juvenile
court had “discretion to determine whether a witness has
adequate qualifications to provide the proffered testimony.” Although the three therapists were not qualified to testify regarding tribal cultural standards, the GAL asserted that the court was not bound by the BIA regulations and urged the court to qualify the therapists as expert witnesses anyway . . .

The Court of Appeals instead agreed with mother and Tribe, stating:

Therefore, because the BIA is a federal administrative agency and ICWA is a federal statute, we must employ the principles articulated in Chevron to determine whether the BIA’s 2016 regulation defining “qualified expert witness” is entitled to deference.

***
Determining that a “qualified expert witness” “should be qualified to testify as to the prevailing social and cultural standards of the Indian child’s Tribe” is consistent with Congressional intent and is reasonable.

Unfortunately, the appellate court ultimately held that:

Although the juvenile court correctly applied Chevron
deference to the BIA’s interpretation of ICWA, it did not
correctly apply the regulation, because it rejected the GAL’s experts solely on the ground that they were not qualified to testify regarding the Tribe’s cultural standards without considering whether those standards had any actual bearing on the proposed grounds for removal. Further, the juvenile court erred in determining that Mother could claim therapist–patient privilege with respect to testimony from her therapist and the family therapist. We therefore reverse the juvenile court’s decision and remand for further proceedings consistent with this opinion.

Published Notice Case from California Court of Appeals [ICWA]

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.

 

ICWA Jurisdiction Case Out of North Carolina Court of Appeals

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.” WardBLACK’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 StateBLACK’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

Here.

Tribal Courts and Child Welfare Series