Child Welfare

Montana Supreme Court: State has Duty to Actively Determine if Child is Indian Child

Kate Fort3 Comments

Here.

In this case, as early as 2014, the State, through the Department, had reason to believe and, as asserted in its various petition averments and request for the District Court to proceed under ICWA, did believe that L.D. was an Indian child by affiliation with the Chippewa Cree Tribe. Though it gave due notice to the Tribe of the pendency of the initial foster care and subsequent parental rights termination proceedings, there is no evidence that the Department ever formally sought or received a conclusive tribal determination that L.D. was or was not eligible for tribal enrollment. Instead, the Department passively relied on the inaction of the Tribe and the assertions or beliefs of the parents that L.D. was not eligible for tribal membership. However otherwise reasonable, this passive reliance was insufficient to satisfy the Department’s ICWA burden to actively investigate further and ultimately make formal inquiry with the Tribe for a conclusive determination of L.D.’s membership eligibility.

Also, with briefing (a rarity in ICWA cases)!

DA 17-0419AppellantBrief

DA 17-0419AppelleeBrief

DA 17-0419ReplyBrief

In re B.B./R.K.B. v. E.T. Cert Denied

Kate Fort

This morning the Supreme Court denied cert in the Utah Supreme Court case establishing a federal standard of reasonableness for a putative father to acknowledge or establish paternity.

Case page here.

Order list here.

Unpublished QEW Opinion out of Texas Court of Appeals

Kate Fort

Here.

This is the second time recently a well-reasoned QEW case has been unreported, which means it can’t be used as precedent. The first was in Washington. In re K.S., 199 Wash.App. 1034 (2017). This one is out of the Texas Court of Appeals.

First, because I’ve been getting a lot of emails lately about foster parent issues, here are the witnesses who testified:

Only three witnesses testified at the termination hearing: S.P., R.C.P.’s foster parent, and Glendalys Mojica Gonzalez, the caseworker assigned to the case. The Department did not designate or proffer any of the witnesses as an expert, and the trial court did not make any rulings or findings regarding expert witnesses.

The Court then analyses the 2015 Guidelines (which it appears would have been governing this case since it was started in October 2016, i.e. initiated prior to December, 2016. 25 CFR 23.143) and concludes none of those people are QEWs.

The failure of the Department to produce the kind of competent evidence expressly required under the Act to support termination constitutes a failure of proof. See City of Keller,
168 S.W.3d at 812 (“[W]hen expert testimony is required, lay evidence . . . is legally insufficient.”); see also Martin v. State, 222 S.W.3d 532, 537 (Tex. App.—Houston [14th Dist.] 2007, pet. denied) (reversing involuntary-commitment order as unsupported by legally sufficient evidence where State
failed to introduce expert testimony as required by involuntary-commitment statute). Therefore, even viewing all of the evidence in the light most favorable to the verdict, because the record does not contain the statutorily required qualified-expert testimony, we conclude that the evidence is legally insufficient to meet the standard of proof under section 1912(f). See Jackson, 443 U.S. at 319; see also In re V.L.R., 507 S.W.3d at 796–97 (reversing judgment terminating parental rights because not supported by testimony of qualified expert witness as required under ICWA); Doty-Jabbaar, 19 S.W.3d at 877 (same).

Transfer to Tribal Court Case out of the Ohio Court of Appeals

Kate Fort

Here.

This is a procedurally complicated case, with a hostile GAL. The conclusion of the appellate court is disappointing:

It is not for this court to decide where and with whom C.J., Jr. should live. However, we have been asked to decide the legal question of who should make the custody determination concerning this child. Based on the foregoing, that decision should be made by the Ohio court after a full evidentiary hearing taking into account the best interests of C.J., Jr., any competing interests of the other parties to this litigation, and the full participation of GRIC. Whether the trauma that might result from removing C.J., Jr. from the only home he has known since he was two years old should outweigh the interest of GRIC in having him transported across the country and raised as part of the GRIC must be determined with all the wisdom, compassion, and experience of the juvenile court.

This article has quotes from the tribal attorney in the case.

Déjà vu All Over Again: AFCARS Comments Needed

Kate Fort

Here is the advanced notice of proposed rulemaking where HHS is reopening the FINAL RULE adopting new data elements on kids in foster care, including ones on ICWA.  Comments on how yes, really, we really do want ICWA data, just like we said the last two times are now due June 13.

Oh also, there’s another notice where HHS is proposing to delay implementation of the Final Rule for two more years. Those comments on that are due April 16.

 

Honestly, just reading the notices is infuriating–the Administration admits the final rule was the culmination of not one, but two separate notice and comment periods, plus a supplemental notice and comment period. This Administration, though, has identified this rule as one where the benefits might outweigh the costs. They have a few identified questions for comment, though it is pretty clear the Administration is seeking comments to support their contention the additional data elements would be too much work for agencies to collect.

I’m sure there will be additional posts on this in the near future.

Colorado Court of Appeals ICWA Notice Case

Kate Fort

Here.

The 2016 Guidelines recommend that if only the tribal ancestral group is indicated, then the Department should notify each of the tribes in that ancestral group to identify whether the parent or child is a member of any such tribe. 2016 Guidelines at 18. Thus, because ICWA’s intent is to provide notice to tribes so that the tribes themselves can decide whether children are tribal members, see B.H., 138 P.3d at 303-04, when a parent is unable to provide detailed information on potential tribal affiliations, the Department should provide notice to all identified tribes and the tribes that have been historically affiliated with those identified tribes, see Tribal Agents by Affiliation, https://perma.cc/K3DDKQR5.

Bill to Allow Tribes Access to Information Needed for Active Efforts in Passes in Michigan

Kate Fort

Here is SB 616.

Here is the press release.

Here is some news coverage.

This bill was driven entirely by the tribes in Michigan–especially the in-house ICWA attorneys and tribal social workers who have been expressing concern with not getting enough information to ensure a family is receiving active efforts prior to a foster care placement.

Supreme Court Cert Stage Briefing in R.K.B. v. E.T.

Kate Fort

As a reminder, this is the cert petition regarding the very long Utah Supreme Court decision which held there is a federal reasonableness standard for determining whether an unwed father is a parent under ICWA. That decision is here.

Another reminder–there are generally no cert stage amicus briefs filed in opposition to a cert petition. And a cert petition is just asking the Supreme Court to take the case. It doesn’t mean the Court has taken the case.

RKB Petition for Certiorari

R.K.B. NCFA Amicus ISO Cert Final

R.K.B. v. E.T. FINAL AMICUS BRIEF AAAA

Amicus Brief- Utah Adoption Council

Amicus Curiae Brief Goldwater

R.K.B v. E.T. Brief in Opposition

Eighth Circuit Oglala Sioux ICWA Case Oral Arguments

Kate Fort

Here.

News coverage here.

Ninth Circuit Briefing in A.D. v. Washburn (Tahsuda)(Goldwater Case)

Kate Fort

This is the appeal of the dismissal of the case in the federal District of Arizona purporting to represent all Native children in foster care in Arizona and their non-Indian foster parents or adoptive placements. The Goldwater Institute appealed the dismissal ot the Ninth Circuit.

20_Opening Brief_09-01-2017

40_AZResponse

41_GilaNavajoResponse

42_USResponse

53 – Goldwater Reply Brief