Here.
Presentation is by one of the many excellent CILS attorneys–Mica Llerandi.
Child Welfare
AFCARS Data Implementation Rule Delayed and Will be Revised. Again.
From the Administration for Children and Families here.
The rule is delayed until 2020 and the Administration is going to “streamline” the data elements. And then it might just be delayed again based on the “streamlining”:
The Children’s Bureau published in the Federal Register on August 21, 2018 a final rule to delay implementation of the December 2016 AFCARS final rule until October 1, 2020 (83 FR 42225). However, since we plan to revise the AFCARS data points, we will revisit this implementation date to provide a timeframe to allow title IV-E agencies time to comply with the revised AFCARS data points.
CSKT 2018 Indian Child Welfare Legal Summit, September 12-13
Confederated Salish & Kootenai Tribes’2018 Indian Child Welfare Legal Summit
The Montana Court Improvement Program, in conjuction with CSKT, would like to invite you to this interactive training designed to improve legal knowledge, skills, and practices in relation to Indian Child Welfare.
After opening with a case law update describing recent Montana opinions, federal court litigation, and note-worthy opinions from sister states, this CLE will provide a quick interactive refresher on the basics of tribal jurisdiction in child custody cases and the requirements of the Indian Child Welfare Act.
With this foundation in place, participants will explore topics like best practices in child welfare cases, domestic child sex trafficking, tribal code enhancement, and ethics as it relates to Indian child welfare cases. Participants will have the opportunity to break out into small affinity groups to discuss improving systems and practices across the state in order to better serve AI/AN children and families.
This two-day training is designed for tribal attorneys, tribal judges, parents’ attorneys, GALs, adoption attorneys, and state prosecutors. (Although caseworkers, CASAs, and other child welfare practitioners are welcome to join us, the focus of this training is to improve legal knowledge, skills, and practices.) Faculty includes local and national experts, practitioners, and scholars from across the country. An application for CLE credits will be filed.
For agenda, updates and more visit:
CTFC Press Release on Dismissal of Goldwater (ICWA) Lawsuit
FINAL Release – ICWA Again Survives Challenge by Fringe Group
The California Tribal Families Coalition, a coalition of tribes and tribal leaders, this week applauded the recent ruling by the Ninth Circuit Court of Appeals to dismiss an ill-conceived challenge against the Indian Child Welfare Act (ICWA) arising from claims in Arizona by the Goldwater Institute, a conservative fringe anti-ICWA group.
The Aug. 6 dismissal marks the end of the latest in a series of cases brought by the group against ICWA as part of a years-long, systematic and disturbing effort to undermine the 40-year-old federal statute that protects Indian children. To date, the Goldwater Institute has failed in its every attempt to upend ICWA.
Despite the encouraging dismissal, the Sacramento-based California Tribal Families Coalition (CTFC) also warned of additional, pending attacks that seek to unwind ICWA and the decades of critical legal protections it has provided against separating tribal children from their families and tribal communities.
This release is discussing the Goldwater litigation, which was the first major attempt to get ICWA declared unconstitutional. Both Navajo Nation and the Gila River Indian Community intervened in this case involving tribal children.
Since 2015, there have been nine federal lawsuits attacking ICWA directly on constitutional groups. There is on-going litigation directly attacking ICWA and tribal court jurisdiction in the Eighth Circuit and the Northern District of Texas.
Montana Supreme Court ICWA Notice Case
¶28 In this case, CPS Lebrun’s testimony that an unidentified person orally confirmed that “they are not eligible, just they can only be descendent members” does not satisfy the Department’s ICWA burden. As a direct result of the Department’s failure to satisfy this burden—and likely assuming the Department had, prior to filing its Notice of No ICWA Involvement, followed up with formal inquiry with the Blackfeet Tribe as CPS Lebrun testified he would—the District Court proceeded to termination without conclusive determination from the Tribe. No documentation or testimony of an authorized tribal representative either dispelled or confirmed the District Court’s and Department’s belief that the children were not Indian children as defined by ICWA. Under the circumstances of this case, we hold the District Court erred by proceeding to terminate Mother’s rights to D.E. and A.E. without a conclusive tribal determination of their tribal membership status and eligibility.¶29 Accordingly, we hold the District Court abused its discretion in terminating Mother’s parental rights without a conclusive tribal determination of tribal membership status and enrollment eligibility. We reverse and remand for an appropriate threshold determination of whether D.E. and A.E. are Indian children based on a conclusive tribal determination of tribal membership and eligibility in the Blackfeet Tribe. Further, if D.E. and A.E. are conclusively identified as Indian children subject to the requirements of ICWA, the District Court shall hold further proceedings as may be necessary to meet the evidentiary burdens of ICWA.
North Carolina “Reason to Know” ICWA Notice Case
Here.
*Whether the evidence presented at the adjudication hearing should have caused the trial court to have reason to know an “Indian child” may be involved and trigger the notice requirement is the issue before us. The federal regulations implementing ICWA and promulgated in 2016, clearly the states court has reason to know an “Indian child” is involved if: “Any participant in the proceeding, officer of the court involved in the proceeding, Indian Tribe, Indian organization, or agency informs the court that it has discovered information indicating that the child is an Indian child.” 25 C.F.R. § 23.107(c)(2) (2018).
The ICWA proscribes that once the court has reason to know the child could be an “Indian child,” but does not have conclusive evidence, the court should confirm and “work with all of the Tribes … to verify whether the child is in fact a member.” 25 C.F.R. § 23.107(b)(1). Federal law provides: “No foster care placement or termination of parental rights proceeding shall be held until at least ten days after receipt of notice by the parent or Indian custodian and the tribe or the Secretary[.]” 25 U.S.C. § 1912(a). Further, a court must “[t]reat the child as an Indian child, unless and until it is determined on the record that the child does not meet the definition of an ‘Indian child.’ ” 25 C.F.R. § 23.107(b)(2).
Other jurisdictions have recognized that “Indian child” status of the juvenile can only be decided by the tribe itself; therefore, only a suggestion that the child may be of Indian heritage is enough to invoke the notice requirements of the ICWA. In re Antoinette S., 104 Cal. App. 4th 1401, 1408, 129 Cal.Rptr.2d 15, 21 (2002). Additionally, ICWA provides that even after the completion of custody proceedings, if the provisions of ICWA were violated, “any parent or Indian custodian from whose custody such child was removed, and the Indian child’s tribe may petition any court of competent jurisdiction to invalidate such action.” 25 U.S.C. § 1914 (2012).
In In re A.R., the Respondent-father claimed that he had “a family connection to a registered Native American group” which consequently qualified his children for the protections under ICWA. In re A.R., 227 N.C. App. 518, 523, 742 S.E.2d 629, 633 (2013). . . . Further, this Court held that “[t]hough from the record before us we believe it unlikely that [the juveniles] are subject to the ICWA, we prefer to err on the side of caution by remanding for the trial court to … ensure that the ICWA notification requirements, if any, are addressed … since failure to comply could later invalidate the court’s actions.” Id.
In the case of In re C.P., the respondent-mother made the bare assertion that she and her children could possibly be eligible for membership with a band of Potawatomi Indians. In re C.P., 181 N.C. App. at 702, 641 S.E.2d at 16. The trial court required the ICWA notice to be sent. Id. When the time required under ICWA had passed without response from the tribe, the trial court allowed two continuances before determining ICWA did not apply and resumed the proceedings. Id. at 703, 641 S.E.2d at 16-17.
***
Our Court has required social service agencies to send notice to the claimed tribes rather than risk the trial court’s orders being voided in the future, when claims of Indian heritage arise, even where it may be unlikely the juvenile is an Indian child. See In re A.R., 227 N.C. App. at 524, 742 S.E.2d at 634; In re C.P., 181 N.C. App. at 702, 641 S.E.2d at 16.
New Mexico’s Children’s Law Institute Conference Call for Presentations
2019 Call for Workshop Proposals
I was just asked to speak at this event, and they also forwarded the call for presentations. So submit something, and we can hang out while we educate!
We are looking for 1.5 hour long workshops that relate to child welfare, juvenile justice, service providers, advocates, educators, and legal professionals in those systems. Workshops can be geared toward one or more professions. We are seeking intermediate and advanced presentations for experienced professionals and volunteers. Academic paper proposals are not likely to be accepted.
The New Mexico Children’s Law Institute (CLI) is seeking proposals for inspirational, skill building, and solution focused workshops for the 26th annual conference in Albuquerque, New Mexico, January 9-11, 2019.
Deadline for proposal submission is August 17, 2018
More Comments Needed! Now on Title IV-E/Families First Developments
Here. DUE JULY 22.
This one is arguably a little more complicated than usual, but also not inherently nefarious. Here’s a very quick overview (with thanks to Jack Trope for his recent presentation up at Grand Traverse Band for all the info).
In somewhat of a surprise development, Congress passed an overhaul to Title IV-E a few months ago. Title IV-E is the reimbursement program for foster care funding. Until this change, called Families First, the funding was triggered both by the removal of the child, and by the family’s income qualification.
Families First does two things–it releases funding for children who are “candidates” for foster care and removes the income qualification for services for those children and families. Allowable pre-removal services include “evidence-based”:
1. Mental health prevention and treatment services
2. Substance abuse prevention and treatment
3. In-home parenting-skill based programs
“Evidence based” Services and programs must be “trauma-informed” and “promising”, “supported”, or “well-supported” practices. HHS is to release practice criteria and pre-approved programs. There are long definitions in the quotes above, but basically:
Promising: one study with a control group
Supported: one study with random control or quasi-experimental
Well-supported: is at least two studies that used a random control or quasi-experimental trial
Finally, HHS must allow programs and services adapted to culture and context of a tribal community. No one really knows how this provision will interact with the evidence based provision above. This call for comments “solicits comments by July 22, 2018 on initial criteria and potential candidate programs and services for review in a Clearinghouse of evidence-based practices in accordance with the Family First Prevention Services Act of 2018.”
The HHS approved list of programs (“Clearinghouse”) will be automatically eligible for the funding. So! If you are provider who knows about such evidence-based practices for tribal youth and families, TELL HHS! Alternatively, if you work for a tribe, you might ask about how tribal consultation will fit into this process.
This may also be a partial game changer for tribes on the fence about doing direct IV-E funding with the federal government. The planning grant for that process should pop up again in the spring.
Judge Byrne’s Essay on Family Separation in Time
Here.
Judge Byrne has been a leader at NCJFCJ, an ally to tribal judges through NAICJA, and a strong proponent and supporter of ICWA. She’s also a state court judge in Texas.
Statement from the Expert Mechanism on the Rights of Indigenous Peoples on Child Separation at the Border
The United Nations Expert Mechanism on the Rights of Indigenous Peoples joins the concern expressed by the United Nations High Commissioner for Human Rights and others regarding the situation of families, children, and individuals being detained in the United States of America at its southern border with Mexico. We call on the United States immediately to reunite children, parents, and caregivers that have been separated to date, and to ensure their basic human rights to family, safety, and security.
In addition, the Expert Mechanism calls attention to the particular impact of the United States’ practices regarding international border detentions and prosecutions on indigenous peoples. Many of the individuals now being stopped at the border are of indigenous origin, including Kekchi, Tzutujil, Kacqchikel, and Mam-speakers and other Maya from Guatemala, as well as indigenous peoples from Honduras, El Salvador, Mexico, and other countries. In many instances, they are fleeing situations of economic, social, and political unrest in their homelands where they have been denied rights to self-determination and territory, and have faced discrimination and violence.
The Expert Mechanism expresses particular concern regarding the vulnerability of indigenous children. Many countries, including the United States, have a long history of forced removal of indigenous children from their families, a practice that is now universally condemned by the human rights communities and by federal law in the U.S. because of the trauma it causes to children, their families, and their communities.
More broadly, indigenous peoples, whether migrants or not, have rights under international
instruments including the UN Declaration on the Rights of Indigenous Peoples, supported by 148 nations across the world, including the United States. These include the right to maintain indigenous cultural identity, to be free from forced family separation, to speak their languages (and have translation services), to be free from discrimination and violence, and indeed to migrate. In some instances current international borders cross indigenous peoples’ homelands, including in the case of the Yaqui and Tohono O’odham people who have territory and family members on both side of the Mexico border. We call on the United States to recognize the particular situation of indigenous peoples in its border practices and policies and to uphold the rights and responsibilities set forth in the Declaration on the Rights of Indigenous Peoples.
Also, here is Mark Trahant’s piece, our previous post with NAICJA’s statement, and NCJFCJ’s statement (which went out on our Twitter feed but not here).
Turtle Talk 
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