Child Welfare

Draft Guidance on the Native American Children’s Safety Act

Kate Fort

Here is the Dear Tribal Leader letter, the guidance, and the request for comments on it:  Draft Guidance for NACSA

This bill and guidance puts certain requirements on tribes, tribal courts, and tribal social service agencies regarding foster care placements and background checks. There have been concerns about the feasibility of the requirements, primarily related to tribal access to individual state databases for the required checks. Here are the important listening session and comment dates (I have to assume that’s March 16, 2018, not 2017 for the written comment deadline):

Law360 on ICWA and Recent Legal Challenges

Kate Fort

Here.

Fort says that a spate of suits involving the Goldwater Institute, while so far unsuccessful in winning a hearing by the U.S. Supreme Court, are diverting tribes’ resources into lawsuits and rehashing old arguments about the constitutionality of the law and the right of tribes to govern their members.

“I don’t think that any of that is to the benefit of American Indian kids or families,” Fort said.

Briefing Completed in Michigan Indian Family Preservation Act Case

Kate Fort1 Comment

At the Michigan Supreme Court:

Order Granting Review

Appellant (Father)’s Brief

Appellee (Macomb County/State)’s Brief

Sault Tribe Amicus Brief (MSU Indian Law Clinic, ICWA Appellate Project co-wrote this brief)

American Indian Law Section_AmicusBrief

Appellant Reply

Oral Argument Scheduling Order

Colorado Court of Appeals Case on Inquiry for ICWA

Kate Fort1 Comment

Here

This is a special one:

 In this case, the trial court first inquired about the applicability of ICWA at a termination hearing regarding J.A. after orally ordering termination of parental rights. For purposes of ICWA, this was the second child-custody proceeding involving J.A. Under 25 C.F.R. § 23.107(a), the trial court should have made that inquiry at the first hearing after the petition in dependency and neglect was filed and again at the start of the termination proceeding.

(emphasis in original)

It continues:

The Department asserts that mother did not provide a relative affidavit identifying her biological parents. It is true that the Department should try to provide sufficient information for the tribe to make the determination as to whether the child is a member or eligible for membership. L.L., ¶ 37. But the lack of complete information does not relieve the Department of its duty to send notice with the information it has. Accord 25 C.F.R. § 23.111(d)(3) (notice shall include direct lineal ancestors if known). Thus, we must remand the case to the trial court so the Department may comply with the notice requirements of ICWA.

At the termination hearing, mother’s counsel stated that he had spoken with mother’s adoptive family and determined that “the ICWA relationship that [mother] had brought to the [c]ourt’s attention was not viable.” But he did not elaborate, so we don’t know the basis for his representation. Moreover, it was for the Kiowa and Pueblo of Taos tribes, not mother’s adoptive family, to determine whether the children were members or eligible for membership.

(Emphasis added).

The Court of Appeals remanded the case, focusing on the Guidelines and Regulations:

We recognize that the 2015 Guidelines, unlike the regulations promulgated in 2016, were not binding on the trial court. But, as recognized by both the 2015 Guidelines and the 2016 Guidelines, early identification of ICWA applicability promotes proper implementation of ICWA at an early stage, protects the rights of Indian children and their families, prevents delays, and avoids sometimes tragic consequences. See 2016 Guidelines at 11; 80 Fed. Reg. at 10,148.

Regardless, as discussed above, the termination proceeding was subject to the 2016 Guidelines and regulations. And, more importantly, the Department failed to send notice to the appropriate tribes when mother identified a reason to believe the children were Indian children. Under these circumstances, the record does not support the trial court’s finding that ICWA does not apply.

(Emphasis added, if we had a nickel for every time any ICWA trainer said that, etc.)

Comments Open for Arizona ICWA Practitioner Pro Hac Vice Rule

Kate Fort3 Comments

UPDATED POST HERE.

The Arizona tribal-state judicial forum has submitted a proposed rule change to allow out of state ICWA practitioners to enter into cases without having to associate with local counsel or pay a fee. This proposed rule has a few more requirements than other similar state rules or proposals.

For example, can an Arizona practitioner tell us what this is or looks like in practice:

“(j) Completion of Course on Arizona Law. Before being admitted to the practice of law in Arizona, Arizona uniform bar examination applicants, applicants for admission by transfer of uniform bar examination score, and applicants for admission upon motion must complete a course on Arizona law, the content and delivery of which shall be approved by the Supreme Court.”

Rule 34(j)

The proposed rule (Rule 38 (2)(C)(iv)) requires the completion of this course before being able to use the pro hac vice exception in an ICWA case. The standard pro hac vice admission rule does not include this requirement (Rule 39), but it is required of those looking to be admitted to the state bar (Rule 34). It would be useful to know if this course is something like a formal semester long class (and therefore renders the rule change less useful for the immediacy of an ICWA/child dependency preceding), or is an afternoon course available online, for example.

Comments must be made by May 21, and you must register with the Arizona courts to submit them online. The proposed rule change page here. Updates on this and other state pro hac vice rules are here. If we receive any information on what the required course entails, we will do another post.

Bay Area ICWA Symposium Request for Workshop Proposals

Kate Fort1 Comment

Here

ICWA Pro Hac Vice Rule Open for Comments in Washington

Kate Fort

This is so exciting! Kristi Healing, (in-house at Stillaguamish) submitted this pro hac rule change proposal.

Here is the proposed rule in PDF form: WA_Proposed_APR8

Submit comments in support, please!

Unless otherwise noted, all comments should be submitted to the Clerk of the Supreme Court by either U.S. mail or Internet e-mail. Comments may be sent to the following addresses: P.O. Box 40929, Olympia, WA 98504-0929, or supreme@courts.wa.gov. Comments submitted by e-mail may not exceed 1500 words.

Our state by state pro hac page is here. I’m also aware of efforts in two other states that are not yet public for comment.

Standing Case out of California (ICWA)

Kate Fort

Here

This is a follow up appeal related to an earlier Indian Custodian case. The Court determined the appellant was not an Indian Custodian, and then here tries to determine if he still had standing (he didn’t). Maybe useful for some of the de facto parent language in it.

(Why yes, I am again catching up on the ICWA cases from the holidays. But also the last time there were this many reported ICWA cases in a row was in August.)

Placement Preference Case out of California

Kate Fort

Here

It’s not clear from the docket who requested this case be published from Nov. 29, but tribal attorneys should take note of the reasoning in the section regarding the tribal government’s ability to change ICWA’s placement preferences. This is the second time (and state) I’ve heard this reasoning, but the first published opinion. It’s contrary to what I’ve advised in the past, and some tribal practices I’m aware of.

Termination of Parental Rights Decision out of Wisconsin

Kate Fort

Here

The Wisconsin Court of Appeals affirmed a termination of parental rights decision under ICWA and WICWA using Adoptive Couple v. Baby Girl (finding abandonment/lack of continued custody by non-Indian father).