Child Welfare

2018 ICWA by the Numbers

Kate Fort

Here’s our annual contribution to the ICWA data discussion. I’m nearing to the final set of 2018 ICWA cases. A note on the data–these are cases that are on Westlaw and/or Lexis Nexis, and ICWA (or state equivalent) was litigated. I collect the case name, the date, the court, the state, whether the case is reported (also called published) or not, the top two issues, up to three named tribes, the outcome of the case, and who appealed the case. I’m also still cleaning some of these numbers, so take this as it is–a quick and dirty survey of the cases.

These are standard state court ICWA cases, and  do not include any of the ongoing federal litigation. This is our fourth year writing this post (2015 and 2016 and 2017). Last year Addie Smith and I managed to get a survey completed and published for 2017. This year, we are dreadfully behind, but are still planning to have this into the American Indian Law Journal later this month. If you know we are missing a case based on the numbers, and it’s publicly available, *please* send it to me [fort at law.msu.edu] so we can add it. I’m also happy to answer questions at the same email.

There were 206 appealed ICWA cases this year, down 7 from last year. However, there were 50 reported cases this year, which is nearly 20 more than last year. As always, California leads the states with 125 cases, 9 were reported. Alaska is second with 11, 3 reported. Montana had 10, including 7 reported, which is up considerably from last year. Colorado had 8, 7 reported, as did Michigan with 2 reported. Arkansas had 6, with 5 reported, and Arizona, Ohio, and Texas all had four (1, 3, 1 reported, respectively). Illinois had three (finally) though reported none of them, and Indiana, Iowa, Missouri, New Jersey, Oklahoma, South Dakota and Washington all had two (only Missouri, Oklahoma, and South Dakota reported their cases).  Finally the following states had 1 appellate ICWA case: Connecticut, Idaho, Kansas, Minnesota, Nebraska, Nevada, North Carolina, Wisconsin, North Dakota.

In California, the cases further breakdown as follows. The Second District and Third District both reported 2 cases, and the Fourth District reported 5 for a total of nine. The remaining 116 cases are spread through out the state, thought the Fourth, Second, and First have the highest number of appealed cases, followed by the Third, Fifth, and Sixth with the fewest. California is the only state where we track by appellate districts at this time.

Supreme Courts reported ICWA decisions in 17 cases this year, including in Alaska (3), Montana (7), Michigan (1), Nebraska (1), Nevada (1), North Dakota (1), South Dakota (2),  (of course some of these states don’t have an intermediate court of appeals–the remaining 11 unreported Supreme Court cases all come out of Alaska and Montana, for example).

125 of the cases affirmed the lower court, while 79 were remanded or reversed.

Top litigated issues across both reported and unreported cases were as follows: Notice (86), Inquiry (43), Placement Preferences (9), Active Efforts (13), Termination of Parental Rights (18), Foster Care Proceeding (4), Transfer to Tribal Court (1), and QEW (1). Also the cases determining if there is an Indian child are up (7), and cases involving California’s Tribal Customary Adoption popped up (4). Only 2 cases involved placement preferences this year. This year 44 of the Notice cases and 23 of the Inquiry cases were remanded for proper notice. The Notice cases are down from last year, and the other issues are up.

59 different tribes were named as the first named tribe in a case. In 27 cases the tribe was unknown (parent did not know name of tribe). In 24, the tribe was unnamed (court did not record name of tribe in the opinion).

Finally, of all the cases, not a single one was appealed by a tribe (that I can find). Cases  were appealed by mom, dad, mom AND dad, the guardian ad litem, aunt, prospective adoptive couple, and the state.

Cases I have been specifically highlighting in my presentations this year are as follows:

Colorado (Notice and Appellate Instruction)

Colorado (Foster Care Proceeding)

Minnesota (QEW)

Oklahoma (reason to know)

Ohio (transfer to tribal court)

South Dakota (application of Texas v. Zinke/Brackeen v. Zinke)

Other major ICWA stories this year that are not reflected in this post include, obviously, Texas v. Zinke, the dismissal of the Oglala Sioux class action case by the Eighth Circuit, and the spread of ICWA pro hac vice rules.

Maine Supreme Judicial Court Affirms Denial of Intervention in Child Welfare Case

Kate Fort

Here.

The State removed non-member children from their tribal member mother, and opposed the Passamaquoddy Tribe’s request for intervention. While intervention is one of right under ICWA, because these children are non-member children, the Court found that ICWA did not apply. In addition, the Court denied the Tribe’s request for permissive intervention in a cursory paragraph. The Court based much of its interpretation and decision on the Maine Indian Claims Settlement Act, making it fairly specific to tribes in Maine. Regardless, the reasoning is frustrating, especially for a permissive intervention, which is apparently allowed “when a ‘[nonparty’s] claim or defense and the main action have a question of law or fact in common’ and intervention will not ‘unduly delay or
prejudice the adjudication of the rights of the original parties.’” M.R. Civ. P. 24(b).

The dissent, pointing out that “In the matter before us, for the safety of the children, the District Court (Calais, D. Mitchell, J.) rejected the request to place the children in a kinship placement with their maternal grandmother. Instead, it authorized the Department of Health and Human Services to seek a foster placement for the children off the reservation and with caregivers who are not related to the children and are not members of the Passamaquoddy Tribe”, therefore “[w]ith the prospect of the children being removed from their Passamaquoddy relatives and the reservation community, the Passamaquoddy Tribe sought to intervene as a matter of right or, alternatively, with the court’s permission.” The dissent also acknowledges the Tribe’s assertion that”their participation in decisions related to the placement and resources available to the children are matters of importance to the court in addressing the needs of the children, whose mother is a member of the Passamaquoddy Tribe. The Tribe’s role, distinct from the role of family members, is important in informing the court of options regarding tribal resources and connections to tribal culture.”

(You had to know I’d end a series of ICWA posts on the case I found the most frustrating.)

Transfer to Tribal Court Decision from Maine Supreme Judicial Court

Kate Fort

Here

[¶1] Shirley T. and David W. appeal from an order of the District Court (Portland, Powers, J.) denying their and the Oglala Sioux Tribe’s motions to transfer jurisdiction of this child protection matter to the Oglala Sioux Tribal Court pursuant to the Indian Child Welfare Act of 1978 (ICWA), 25 U.S.C.S. §§ 1901-1963 (LEXIS through Pub. L. No. 115-277). Shirley T. and David W. challenge the court’s determination that there is good cause within the meaning of ICWA not to transfer the matter to the Tribal Court. We affirm the court’s denial of the motion to transfer jurisdiction.

The Court essentially used an inconvenient forum analysis, based on the Regulations, Guidelines and numerous other state court opinions.

Grandparent Standing Case in Arizona Court of Appeals

Kate Fort

Here.

While the Court of Appeals found that the grandmother didn’t have standing and properly dismissed the case, opinion notes the Tribal Court had already been exercising jurisdiction over the child in a concurrent child custody matter.

Tribal Standing Issue in California Court of Appeals ICWA Decision

Kate Fort

Here

Mother next contends the juvenile court’s order granting the Tribe’s petitions for modification, and giving full faith and credit to an amended tribal customary adoption order, must be reversed because the Tribe did not have standing to file section 388 petitions for modification. We reject her contention.

Determination of Indian Child ICWA Case out of Montana Supreme Court

Kate Fort

Here.

In affidavits supporting the TIA and TLC petitions, Child Protection Specialists (CPS) noted they had no reason to believe that any of the children were subject to the Indian Child Welfare Act (ICWA). However, at a May 2016 show cause hearing, the District Court was notified that ICWA possibly applied to K.J. considering K.J.’s father received benefits from the Arapahoe Tribe. The benefits signaled potential for K.J. to meet the “Indian child” designation of ICWA. Yet, further correspondence with the Arapahoe Tribe conclusively determined that ICWA was inapplicable to K.J. The District Court granted the Department authority to investigate and work with the parents and children.

In October 2016, the Department again filed petitions for adjudication as YINC and TLC for all three children. CPS Mariesa Wallis submitted three identical affidavits in support which included the statement: “To the best of my knowledge and belie[f] the child is an Indian Child subject to [ICWA].” Wallis’ affidavit did not reference specific tribes or details concerning possible tribal affiliations. The petition and accompanying affidavits are the sole documents in the record suggesting J.J.C. or R.G. were Indian children.

Emphasis added. The Court found that ICWA did not apply (actually, that there was no reason to believe the child was an Indian children, which . . . seems like the wrong finding). Assuming, however, the communication with the Tribe was accurate, it is correct for the trial court to follow that determination rather than the state social worker’s affidavit.

Application of ICWA to Guardianship in South Dakota Supreme Court

Kate Fort

Here

Report from the Association on American Indian Affairs – “Examining How JDAI Sites Interact with Native Youth and Tribes”

Adrea Korthase

The Juvenile Detention Alternatives Initiative (JDAI) report can be downloaded here.

More information on JDAI can be found here.

ICWA Termination of Parental Rights Case out of Texas Court of Appeals

Kate Fort

Opinion here.

On October 4, 2018, a federal district court in the Northern District of Texas issued an order declaring that portions of the Indian Child Welfare Act, including its placement preferences, are unconstitutional for several reasons, including that it violates equal protection and improperly requires state agencies to apply federal standards to state claims. See Brackeen v. Zinke, Civil Action No. 4:17-cv-00868-O, — F.Supp.3d —, 2018 WL 4927908 (N.D. Tex., October 4, 2018). In the Brackeen case, foster and adoptive parents, and the states of Texas, Louisiana, and Indiana filed suit against the United States, United States Department of the Interior and its Secretary, Bureau of Indian Affairs (BIA) and its Director, BIA Principal Assistant Secretary for Indian Affairs, and the Department of Health and Human Services (HHS) and its Secretary seeking a declaration that Indian Child Welfare Act (ICWA) was unconstitutional. Id. The Department contends that the United District Court’s order renders J.R.M.’s complaints moot, but the order does not indicate that the plaintiffs challenged the specific ICWA provisions at issue in this case. Further, the Brackeen case may be appealed and ICWA has previously been upheld by the United – 5 – States Supreme Court. See Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 109 S.Ct. 1597, 104 L.Ed.2d 29 (1989). Therefore, we will address the merits of the issues raised on appeal.

Fifth Circuit Grants Stay in Texas v. Zinke (ICWA)

ilpc

The Northern District of Texas’s decision finding ICWA unconstitutional is stayed (put on hold and does not apply) pending the appeal of the decision to the Fifth Circuit.

Here