I posted earlier about the AFCARS proposed information collection activity posted in June.
Here is the Federal Register page.
There are at least sets of two model comments for tribes in circulation. If you have not yet received any but would like them, please feel free to contact me (fort@law.msu.edu) or Delia Sharpe at California Tribal Families Coalition (delia.sharpe@caltribalfamilies.org). These need to be emailed to the feds by August 29.
Here is the opinion in In re Detmer/Beaudry. The question of whether an involuntary removal of a child triggers ICWA if the child is not placed in “foster home or institution or home of a guardian or conservator” 25 U.S.C. 1903(1)(i) is one that comes up pretty regularly. This case addresses that question under the Michigan Indian Family Preservation Act (MIFPA) and concludes that when a child is removed from respondent mother and placed with his non-respondent father, that removal still triggers MIFPA’s protections. The court focused on the dictionary definition of “removed” and found:
Thus, we understand “removed” in MCL 719B.15(2) to mean the instance when a court orders that a child be physically transferred or moved from the care and residence of a parent or custodian to the care and residence of some other person or institution. Based on this understanding, it becomes clear that the trial court erred with respect to AB. Over respondent mother’s objection, the trial court ordered that AB be physically placed with his nonrespondent father. AB had previously resided with respondent-mother and spent every other weekend with his nonrespondent father. The trial court’s order moved AB’s residence to his nonrespondent father’s home and conditioned respondent-mother’s visitation on the discretion of DHHS. Under our reading of MCL 712B.15(2), the trial court “removed” AB from respondent-mother.
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Because AB was removed from a parent, the trial court was required under MIFPA to make findings on whether active efforts were made to provide remedial services, whether those efforts were successful, and whether respondent-mother’s continued custody of AB posed a risk of emotional or physical harm to the child. MCL 712B.15(2). The trial court was similarly required to hear testimony of a qualified expert witness concerning these matters. MCL 712B.15(2). The trial court made no such findings and heard no such testimony, and this was reversible error.
The ICWA Appellate Clinic at MSU Law co-authored the Tribe’s brief in this case.
As we have written about here and here and here, the Automated Foster Care and Adoption Reporting System (AFCARS), currently the only federal source of data on children in foster care, recently added data collection elements for AI/AN kids in care. This means that for the first time, we would have some real data from the states on their ICWA work. This sounds like dry stuff, but it’s really the one major way for us to have aggregate nationwide data on notice/placements/transfer–basically all of ICWA.
Unfortunately, it appears the Administration is trying to change or kill the rule. We received information late (this weekend) that the Administration for Children and Families asked for a “Proposed Information Collection Activity, Comment Request” in June, but it didn’t trigger an alert under our search terms. As such, comments on WHY this is so important are due August 30th. There are a few of us working on comments for tribes, so please contact us or leave a comment if you are interested (I’ll try to post something this week). If you work for a state, and think this is important information to have, or are already collecting it, PLEASE try to submit something in support. The information question presented is:
The Department specifically requests comments on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency’s estimate of the burden of the proposed collection of information; (c) the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology.
I gave a talk last week in Arizona. Here are some links and resources from that presentation:
Cases I discussed:
Carter v. Washburn/Goldwater class action
Fletcher and Singel, Indian Children and the Federal-Tribal Trust Relationship (I read quotes from pp 945-950)
The ICWA Regulations in final CFR format, 25 CFR pt. 23 (Title 25 regs are put into the CFR every April, hard copies are available in July(ish)).
Here.
“ICWA is the gold standard for children in foster care,” said Sheldon Spotted Elk, director of the Indian Child Welfare Program for the Casey Family Foundation. The law requires “active efforts” to maintain the child safely in his or her home, and if that’s not possible, to place the child with relatives, if possible.
Here is the opinion.
After two years, the Minnesota federal district court dismissed the voluntary adoption case challenging the provisions of the Minnesota Indian Family Preservation Act (MIFPA) allowing for notice and intervention of a child’s tribe in the proceedings. While the court states that the case presented Constitutional questions, the proceedings were moot and did not meet the standard for capable of repetition but evading review to keep the case live. There’s a nice discussion of that standard for practitioners who have been wondering how that might work in a child welfare case.
Plaintiffs have 30 days to file a notice of appeal if they so choose.
This is the last of the summer 2015 batch of federal ICWA challenges filed. All of them were ultimately dismissed. Carter v. Washburn is currently on appeal to the 9th Circuit.
Here.
Sometimes I’m just left sputtering:
Initially, Dan Arkell-Roca represented Mother. According to the proffered testimony at the district court’s hearing on this matter, Arkell-Roca obtained Mother’s signature on her no-contest statement to the State’s child in need of care petition by folding over the paper in such a way that she could only see the signature line. She was not able to view the rest of the document. Arkell-Roca told Mother that she needed to sign the document if she wanted to get her child back and she did not need to worry about what it said. She signed the statement without reading it and not knowing what it said. Arkell-Roca also advised Mother that she should not pursue the issue of whether there was native parentage of her son because the tribe would come and “take her child away.”
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The Kansas Supreme Court disbarred Arkell-Roca from the practice of law in Kansas on July 7, 2016. See In re Arkell, 304 Kan. 754, 377 P.3d 414 (2016).
After sending notice to Cherokee Nation and then receiving the request for more information letter back, the state did nothing to find the information requested by the Nation–the grandmother’s birthdate and maiden name despite this:
Here, there is no indication the State knew the grandmother’s birthdate and maiden name, even though the child lived with grandmother after she was approved for placement. The State admits in its brief that it took no action to obtain the information 22 after receiving the Cherokee Nation letter. Thus, we cannot reasonably say that the information was unavailable here. In our view, the letter from the Cherokee Nation can be treated as a request for more information. There were eight question marks in place of the grandmother’s date of birth, indicating this information was needed.
Ultimately,
Finally, unique to this case, we must point out that even if we do not require the State to provide additional information to the tribe, Mother has a strong argument for remand because her attorney, since disbarred, advised her not to pursue a notice to the Nation under the Act.
Yes. Yes, she does.
Here.
Turtle Talk 
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