Child Welfare

2018 ICWA Agents for Notice Includes Incorrect Contact Information

Kate Fort2 Comments

ETA: This is NOT limited to California

I have received word that some information in the 2018 Fed Reg ICWA Agents for Notice publication is completely (and wildly) incorrect, even though the information in 2017 was correct (and hadn’t changed): “It was absolutely correct last year. The person listed is not and has never been affiliated with [TRIBE]. The address is completely wrong, including the city.”

Tribes! PLEASE check this document to make sure your ICWA agent for notice information is correct. If you can, let me know if it isn’t. We are trying to get a sense of whether this is limited to California tribes or not.  This is the document we all train on and send people to (I was honestly in the middle of teaching a class on notice when I received this information). Thank you.

2018 Designated Agents for ICWA Service

Kate Fort2 Comments

Here!

Apparently last year I threatened some of you with embarrassment if you didn’t use these, which I’m not doing this year (but seriously, use these. Do not send notice to the tribal newspaper [yes, that has happened]).

 

Washington State Adopts ICWA Pro Hac Rule!

Kate Fort

Order here.

Effective September 1!

ICWA Pro Hac page here.

AFCARS Tribal Comments Needed-June 13 Deadline

Kate Fort

The Administrating is reconsidering the burdens of the Obama Administration’s Final Rule to collect data on American Indian/Alaska Native children in foster care through the Adoption and Foster Care Analysis and Reporting System (AFCARS). Comments are due June 13. Previous posts explaining this call for comments are here and here and here.

If you are interested in reviewing model comments for tribes stating the data elements should remain intact, please email Delia Sharpe (California Tribal Families Coalition)  at delia.sharpe@caltribalfamilies.org or me at fort@law.msu.edu

We will both be at the California ICWA conference today and tomorrow.

Heartbreaking Study out of Manitoba: Moms in Foster Care More Likely to Lose Their Infants

Kate Fort1 Comment

Study here

Adolescent mothers in the care of CPS are much more likely to have their child taken into CPS care. By separating a quarter of young mothers from their infant within the first week of life, and almost half before the child turns 2, the cycle continues. For adolescents in CPS care who give birth, more and better services are required to support these mothers and to keep mothers and children together wherever possible.

Coverage here

A quick review of the study doesn’t reveal a direct link to Indigenous girls, but

She pointed to the province of Manitoba, where 10,000 of the 11,000 children in care are indigenous.

and

The number of children in care in Manitoba is among the highest per-capita compared with other provinces. It has nearly doubled in the last decade to 11,000. Nearly 90 per cent are Indigenous.

In neighbouring Saskatchewan, with roughly the same population, the number is roughly 4,000, Fielding said.

Consent to Termination of Parental Rights Decision in Michigan Supreme Court

Kate Fort

Opinion here

The ICWA Appellate Clinic co-represented the tribe in this case.

This case involves a complicated question of state statute interpretation regarding a voluntary consent to a termination of parental right in the face of a state termination petition. In this case, the dad consented to termination before the termination hearing. The children were later placed in a tribal-approved foster placement, and the dad withdrew his consent to termination. The question was whether dad could do that under Michigan statute.

None of the protections in MCL 712B.15, [mirroring ICWA’s main protections in an involuntary proceeding] which are designed for contested and adversarial proceedings, remains relevant once a parent voluntarily releases his or her rights under MCL 712B.13. When the court accepted Williams’s release, and the proceedings went from adversarial to cooperative, the protections of MCL 712B.15 did not apply.

However, the Court also held,

That is, Williams may withdraw his consent, but because he is still subject to MCL 712B.15, DHHS may refile a termination petition. MCL 712B.15. And, under MCL 712B.13(3), a parent who consents during an involuntary termination proceeding is not entitled to “the return of the Indian child” to him or her.

Instead, the child returns to the position the child was in before his or her parent consented to the termination of parental rights. Williams’s children were in foster care when he consented to the termination of his parental rights, his children will remain in foster care, and Williams will be once again subject to the procedures and protections of MCL 712B.15. DHHS may proceed with its termination case if it chooses, and if DHHS can satisfy the heightened requirements of MCL 712B.15, Williams’s parental rights can be terminated.

Briefing on the case is here.

ICWA QEW Opinion in the Minnesota Supreme Court

Kate Fort

Opinion

The question of what Qualified Expert Testimony (QEW) actually is under ICWA comes up all the time. The Minnesota Supreme Court did a pretty deep dive into what it means in terms of termination of parental rights, and concludes,

Read straightforwardly, the statute provides that to terminate parental rights, a district court must determine that “continued custody of the child by the parent . . . is likely to result in serious emotional or physical damage to the child.” 25 U.S.C. 1912(f). This determination must be supported by evidence “beyond a reasonable doubt,” and part of the supporting evidence must be QEW testimony. Id. The statute is unambiguous.

. . .

The parents . .  suggest that the statute requires that the QEW testify specifically that “continued custody . . . is likely to result in serious emotional or physical damage.” 25 U.S.C. § 1912(f).  . . . If Congress wanted to impose a requirement that the expert utter a “magic phrase,” it could have done so. But as written, neither ICWA nor MIFPA require a specific QEW opinion that “continued custody . . . is likely to result in serious emotional or physical damage.” 25 U.S.C. § 1912(f); Minn. Stat. § 260.771, subd. 6(a). S

…

Accordingly, we conclude that in a termination proceeding governed by ICWA and MIFPA, a court cannot terminate parental rights unless it determines that evidence shows, beyond a reasonable doubt, that continued parental custody of the child is likely to result in serious emotional or physical damage to the child. That determination must be supported by QEW testimony.

Because the QEW admitted on the stand that she focused most of her testimony and affidavits on the mother (who was a tribal member) and not the father (who not an enrolled tribal member in any tribe), the court held her testimony did not support the termination as to father.

I get questions pretty frequently about QEW, QEW training, and whether a person should be a QEW. My answer is almost always the same–a QEW must be comfortable stating that the parental rights should be terminated, or that these children should be put in foster care. That information is what is required by statute, and why the state (or party seeking removal/termination) must put a QEW on the stand. The QEW is ultimately there to testify against the parents, regardless of any other testimony they may proffer.

ICWA Notice Decision in the Colorado Court of Appeals

Kate Fort

Opinion here

This is a fairly standard notice decision, but the instructions on remand are the kind that more courts of appeals need to provide in ICWA cases. As they are nearly four full pages long, I’m not quoting them here, but I am posting the opinion because of them.

Also, by “fairly standard notice decision”, I mean the Department was aware of possible American Indian/Cherokee heritage in May, and no one did any notice till December, a month after the Department filed the TPR. The Court of Appeals sent it back down to fix that.

Split Ninth Circuit Affirms Life Sentence for Salt River Gang Member Convicted When He Was a Juvenile

Matthew L.M. Fletcher

Here is the opinion in United States v. Briones.

2017 ICWA Case Law Update and Commentary

Kate Fort

Addie Smith and I put this together:

Indian Child Welfare Act Annual Case Law Update and Commentary

This article provides a comprehensive catalog of published ICWA jurisprudence from across all fifty states in 2017. Designed as a quick reference for the ICWA practitioner, this article summarizes key case decisions that have interpreted the law in meaningful, significant, or surprising ways. It also tracks current attempts by ICWA’s opponents to overturn the law. By providing an overview of last year’s ICWA cases, this article is meant to keep practitioners up-to-date so they can be effective in the juvenile courtroom without sorting through and reading the dozens of cases published across all fifty jurisdictions.