Child Welfare

Adoption and Foster Care Analysis and Reporting System (AFCARS) Notice of Proposed Rule Making. Again.

Kate Fort

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]

Kate Fort

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]

Kate Fort

Here

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

Kate Fort

Here

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

Kate Fort

Opinion here

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]

Kate Fort

Eva H. v. State of Alaska

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.

ICWA Op-Ed in the WaPo and Editorial in the Austin American Statesman

ilpc

Wapo: Native children benefit from knowing their heritage. Why attack a system that helps them?

Austin American Statesman: Paxton should stop playing politics with adoptive families

How does measuring poverty and welfare affect American Indian children?

Teresa Walrod

From Brookings:

For one group of children in particular, American Indians and Alaska Natives, exceedingly high poverty rates have had profound impacts on community wellbeing and long-term cohesiveness. Given the best available data, from the U.S. Census data, child poverty rates among American Indians and Alaska Natives have consistently exceeded 40% for almost the past 30 years.

Here.

Alaska Supreme Court on Active Efforts [ICWA]

Kate Fort

Here.

I very nearly made an inadvertent broken record pun here, but seriously, I do talk about making a clean record a lot. OCS didn’t even manage to document state law requirements in this case. And in the continuing theme of this afternoon’s ICWA cases–the requirements of ICWA stand regardless of whether the agency finds the parents cooperative or not.

Like the superior court, we are underwhelmed by the quality of OCS’s testimony. We agree with the court’s observation that OCS “made a rather lackadaisical effort” and “put on a skeletal case about [its] required active efforts.” The superior court was rightly concerned to doubt OCS’s demonstration of active efforts. We acknowledge that the superior court concluded that OCS met its burden due in large part to “the consideration the Court is to give to the parents’ demonstration of an unwillingness to change or participate in rehabilitative efforts.” While this principle remains valid, the parents’ lack of effort does not excuse OCS’s failure to make and demonstrate its efforts. Even considering the parents’ lack of participation, there is simply insufficient evidence in the record to show that OCS made active efforts. It was legal error for the superior court to conclude by clear and convincing evidence that OCS made active efforts to reunify the family.

***
A related but distinct problem is OCS’s failure to document its active efforts in detail in the record. While documentation is related to OCS’s duty to make active efforts, documenting those efforts is a separate responsibility. The act of documentation is not itself an “active effort”; rather, it is a mechanism for OCS and the court to ensure that active efforts have been made. Documentation is required by ICWA and is critical to compliance with ICWA’s purpose and key protections. The CINA statute also requires OCS to document its provision of family reunification support services. But such documentation is woefully missing here.

Montana Supreme Court on Reason to Know [ICWA]

Kate Fort

Here.

And a long excerpt:

Contrary to the Department’s assertion and the apparent corresponding view of the District Court, the “reason to know” standard does not necessarily require an evidentiary showing, and certainly not by the parents, that a child or parent may be eligible for tribal membership. See 25 U.S.C. § 1912(a); 25 C.F.R. §§ 23.107-08. Nor does ICWA require that an assertion of potential tribal eligibility be certain. Gerardo, 14 Cal. Rptr. 3d at 802; Kahlen, 285 Cal. Rptr. at 511. See also 25 C.F.R. §§ 23.107(a), (c), -108(a). Any more stringent construction as suggested by the State would defeat ICWA’s manifest purpose and command. Certainly, a “reason to know” is a low standard, but not an unlimited one. In re Jeremiah G., 92 Cal. Rptr. 3d 203, 207-08 (Cal. App. 2009); In re Z.H., 740 N.W.2d 648, 653-54 (Iowa App. 2007). A “reason to know” requires something more than a bare, vague, or equivocal assertion of possible Indian ancestry without reference to any identified Indian ancestors with a reasonably suspected tribal connection. See Jeremiah G., 92 Cal. Rptr. 3d at 207-08; Z.H., 740 N.W.2d at 653-54. Pursuant to 25 C.F.R. § 23.107(c)(1), Mother’s asserted belief that she may be eligible for enrollment in the Crow Tribe was minimally sufficient to constitute a reason to know that the children were Indian children under the circumstances of this case.

¶22 We are further troubled by the Department’s apparent view that it has no affirmative duty to make further inquiry or provide tribal notice and inquiry when parents are not cooperative. Lack of parental cooperation is immaterial, is not a basis for equitable waiver or estoppel, and does not otherwise relieve state agencies and courts of the duty to comply with ICWA requirements. Kahlen 285 Cal. Rptr. at 512. ICWA vests Indian children and related Indian tribes with a federal right, independent of but on par with the right of Indian and related Indian tribes with a federal right, independent of but on par with the right of Indian parents, to specified tribal notice and eligibility determinations regardless of the conduct or disregard of the parents. Miss. Band of Choctaw Indians, 490 U.S. at 49-53, 109 S. Ct. at 1609-11; Kahlen, 285 Cal. Rptr. at 512. The practical difficulty or inability of a state agency to identify the correct tribe or substantiate an assertion of requisite Indian ancestry does not relieve the agency of its duty to comply with ICWA requirements. See Kahlen, 285 Cal. Rptr. at 512.