Fletcher and Singel will publish “Indian Children and the Federal-Tribal Trust Relationship” in the Nebraska Law Review.
Child Welfare
ICWA Qualified Expert Witness Case out of Kansas Court of Appeals
Here. This case has a lot of problems, but the biggest one is the lack of a qualified expert witness at the adjudication phase. The court describes child welfare proceedings as falling into two phases:
Proceedings that end in termination of parental rights in Kansas have two major phases. First, there’s an adjudication, after stipulations or an evidentiary hearing, that the child is in need of care. Second, if termination of parental rights is ultimately sought, there’s a termination order, also after stipulations or an evidentiary hearing. Because no expert testimony was presented in this case at the adjudication hearing, Mother and Father claim that the district court should have dismissed the action at that time.
While all the parties agreed that the adjudication hearing was a 1912 hearing that required QEW testimony, the court still found the lack of QEW testimony at the foster care placement hearing (1912) to be harmless error (that sound you just heard is ICWA attorneys across the country screaming in frustration).
This is pretty troubling, as under federal law, the QEW testimony has to happen at two stages in an ICWA proceeding–a foster care proceeding, and a termination of parental rights. Forcing the State to get QEW testimony is one of the parent’s main rights under the Act, and the legislative history makes pretty clear the QEW testimony is one of the primary ways Congress sought to counter bias in state court proceedings. In addition, as the Kansas court of appeals points out:
So the M.F. [Kansas Supreme] court stated in passing that “it is difficult to conclude a procedural violation of [the Indian Child Welfare Act] can be harmless.” M.F., 290 Kan. at 157 (citing 25 U.S.C. § 1914).
Right. In that case, In re M.F., the Kansas Supreme Court specifically held that a lack of QEW testimony is not harmless error. The Kansas court of appeals cites to a number of pre-In re M.F. decisions, plus the fact there was QEW testimony as the termination of parental rights hearing, to find that it can apply a harmless error standard here.
Alaska ICWA Qualified Expert Witness and Active Efforts Case
Here.
This case delves deeply into the qualifications of a qualified expert witness under the 2015 BIA Guidelines. Those requirements were pretty specific, and as the court points out, prioritized cultural knowledge of the child’s tribe.
The 2015 Guidelines don’t govern cases initiated AFTER December 12, 2016, and instead the federal regulation (81 Fed. Reg. 38873; 25 CFR pt. 23.122) provides the definition and context of qualified expert witnesses. That definition (“a qualified expert witness must be qualified to testify regarding whether the child’s continued custody by the parent or or Indian custodian is likely to result in serious emotional or physical damage to the child and should be qualified to testify as to the prevailing social and cultural standards of the Indian child’s Tribe”) provides far less guidance to the court as to who can be a QEW. The regulation further states a QEW may be designated by the child’s tribe, and may not be the “social worker regularly assigned to” the child. The 2016 Guidelines now argue that specific professional knowledge might be more important than cultural knowledge. That may have been more helpful to the parent’s argument in this case.
Arizona Supreme Court Decides ICWA Transfer Case
Opinion here: Gila River Indian Community v. Dept. of Child Safety, Sarah H., Jeremy H., A.D.
This case was originally the In re A.D. case, the same A.D. who was the Goldwater Institute’s named plaintiff in Carter (A.D.) v. Washburn (now on appeal to the 9th Circuit). The Goldwater Institute represented the foster parents in this case in the Arizona state court appeals process.
The court of appeals decision denied the transfer to tribal court issue on the question of whether 25 U.S.C. 1911(b) allows transfer of post-termination proceedings. The Arizona Supreme Court also upheld the denial of transfer to tribal court, but walked back some of the more troubling aspects of the court of appeals opinion. Specifically,
Although the court of appeals correctly held that § 1911(b) did not apply here, that court was mistaken in stating that ICWA does not “allow” the transfer of actions “occurring after parental rights have terminated[.]” Gila River Indian Cmty., 240 Ariz. at 389 ¶ 11. By its terms, § 1911(b) provides that a state court must transfer foster care placement or termination-of-parental-rights cases to tribal court unless the state court finds good cause for retaining the case or unless either parent objects to the transfer. Section 1911(b) is silent as to the discretionary transfer of preadoptive and adoptive placement actions, but we do not interpret that silence to mean prohibition. See Puyallup Tribe of Indians v. State (In re M.S.), 237 P.3d 161, 165 ¶ 13 (Okla. 2010) (“Reading what is contained in the statute . . . does not require us to read into the statute what is not there, i.e., that transfers may only be granted if requested before a termination of parental rights proceeding is concluded.”) (emphasis omitted).
When enacting ICWA, Congress recognized, rather than granted or created, tribal jurisdiction over child custody proceedings involving Indian children. See Holyfield, 490 U.S. at 42 (“Tribal jurisdiction over Indian child custody proceedings is not a novelty of the ICWA.”); Indian Child Welfare Act Proceedings, 81 Fed. Reg. 38,778, 38,821–22 (June 14, 2016) (codified at 25 C.F.R. pt. 23) [hereinafter 2016 BIA Final Rule] (noting that Congress, in enacting ICWA, recognized that inherent tribal jurisdiction over domestic relations, including child-custody matters, is an aspect of a “Tribe’s right to govern itself”); Cohen’s Handbook of Federal Indian Law 840, 842 (Nell Jessup Newton et al. eds., 12th ed. 2012) (“Before the passage of ICWA, tribes exercised jurisdictional authority over custody of their children,” and § 1911(b) “reflects the legislative compromise made when states and others resisted tribes’ exercise of exclusive jurisdiction over all Indian child custody proceedings.”) (emphasis added).
¶21 Thus, tribes have the inherent authority to hear child custody proceedings involving their own children. By enacting ICWA, Congress recognized that authority and clarified the standards for state courts in granting transfer requests of certain types of cases. As a result, although ICWA does not govern the transfer of preadoptive and adoptive placement actions, state courts may nonetheless transfer such cases involving Indian children to tribal courts.
***
Finally, contrary to the court of appeals and the foster parents’ arguments, we decline to rely on waiver as a basis for affirming the denial of the Community’s transfer motion. See Gila River Indian Cmty., 240 Ariz. at 391 ¶ 18. The Community did not expressly waive its right to seek transfer; thus, the only waiver here would be implied because the Community did not seek transfer until after parental rights were terminated. However, “[t]o imply a waiver of jurisdiction would be inconsistent with the ICWA objective of encouraging tribal control over custody decisions affecting Indian children.” In re J.M., 718 P.2d 150, 155 (Alaska 1986) (emphasis omitted). Moreover, courts have historically been reluctant to imply a waiver of Indian rights under ICWA. Id.; cf. In re Guardianship of Q.G.M., 808 P.2d 684, 689 (Okla. 1991) (“Because of the ICWA objective to ensure that tribes have an opportunity to exercise their rights under the Act, and because of the plain language of § 1911(c), a tribe’s waiver of the right to intervene must be express.”).
However, the general rule remains (in states without state ICWA laws on point) –transfer petitions made after termination of parental rights will likely remain more difficult to achieve than those made before.
Two ICWA Cases from the Michigan Court of Appeals
Unreported Notice case (parent challenge, no indication child was eligible for tribal citizenship): In re Applewhiate
Reported case: In re JJW_Opinion
The MSU Indian Law Clinic/ICWA Appellate Project co-authored the Tribe’s brief in In re JJW.
Michigan and Oregon Adopt Pro Hac Vice Court Rules for ICWA Cases
Edited to add that Nebraska deserves credit for codifying this back in 2015, which I knew and forgot until today when I was doing some research. The provision is at Neb. Rev. Stat. 43-1504(3), a citation which I have now memorized so I won’t forget it again.
This spring both Michigan and Oregon have changed their court rules to allow out of state attorneys to appear in ICWA cases on behalf of a tribe (Michigan and Oregon) or parent or Indian custodian (Oregon). Both waive the pro hac fees, and do not require the attorneys to associate with local counsel.
Michigan’s rule, MCR 8.126, is here. The rule is effective September 1.
Oregon’s rule, UTCR 3. 170(9), is here. The rule is effective August 1.
In both of these cases, the rule was a result of a recommendation and work from the respective Tribal State Judicial Forums.
In the hopes this is something other states may be willing to take on (hi California! Oh hey, Washington!), we’ve started a page with resources here.
South Dakota Supreme Court Overturns Denial of Transfer to Tribal Court
Here.
We agree that the court’s denial of the request to transfer was improper. It is undisputed that the circuit court refused to hold a separate evidentiary hearing on the question of good cause. And the court’s commentary on the issue during the December 14, 2015 review hearing consists only of the following:
Well, it’s going to be the Court’s finding that the motion to transfer is not timely and it’s going to be denied in this case. I note this case is—was open last November, 2014. The [T]ribe’s apparently been aware of it for more than a year. No efforts were made to get it transferred before this time, and I—my real concern is, it just is contrary to the interests of the children to start over from square one after a year has proceeded in the matter, so that motion is going to be denied.
As noted above, in determining whether the motions to transfer were timely, the court was required to consider all the particular circumstances of this case, not simply the amount of time that had passed since the proceedings first began. See id. at 600. Although this case was over one year old, it had not yet reached final disposition. Without knowing the Tribe’s and Mother’s reasons for waiting to seek transfer, the circuit court necessarily did not consider all the circumstances of this case.
The court’s finding that transferring jurisdiction was not in the best interest of the Children is susceptible of the same criticism. As above, the absence of specific factual findings precludes meaningful review. The Tribe intervened and has been involved in this case since nearly its beginning. The Tribe has been represented at each of Mother’s review hearings. The circuit court did not identify any reason to conclude that transferring jurisdiction to the Tribe would have amounted to a “start over from square one[.]”
2017 Michigan Indian Family Preservation Act and ICWA Court Resource Guide
Here. From the Michigan Court Improvement Program.
New and updated for 2017! Now with MIFPA and the Regulations!
Another (unpublished) Arkansas ICWA Case Lacking Strong Parent Representation
Here. Another reason for more parent attorney partnerships and training. Matthew noted this happened last September in Arkansas too. From the opinion, it’s not remotely clear the agency notified the Cherokee tribes of dad’s claim here.
In addition to the termination of Daniel’s parental rights, the trial court found ICWA did not apply. His counsel explains that this finding does not provide a meritorious basis for reversal, and we agree. Daniel attempted to establish the applicability of ICWA at the outset of the termination hearing—despite the fact the trial court had earlier determined that ICWA did not apply in the probable-cause order dated July 8, 2015. The only documentation he submitted in support of his assertion was a form application for membership in the Cherokee Nation he filed only a couple of days prior to the hearing. In order to establish the applicability of ICWA, a child who is the subject of a dependency neglect action must be an “Indian child,” which is defined as any unmarried person who is under eighteen and is either (a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe. 25 U.S.C. § 1903(4). Here, there was no evidence A.B. and D.B. satisfied these requirements. It is undisputed the children are not members of an Indian tribe, and the only evidence submitted was the form application prepared by Daniel two days before the hearing—there was no evidence the application had been accepted or that the children were in any other way eligible for membership, and there was not even any evidence Daniel was their biological father, although he did not dispute that fact. This issue provides no meritorious basis for reversal.
In more than one state, this would provide a meritorious basis for remand at minimum, and maybe reversal. It’s fair that it might not yet be a basis for reversal in Arkansas, but it’s clearly time for someone to bring the argument.
(Why yes, I am currently on a four hour flight, and have a backlog of ICWA cases to post . . .)
Published ICWA Inquiry Case from Colorado Court of Appeals
Here.
The court found that the agency has to ask about tribal citizenship each time a the agency initiates proceedings against a parent, and not rely on findings in a separate, previous proceeding.
Moreover, while not applicable here, we note that new federal regulations that codify this inquiry obligation became effective on December 12, 2016. See 25 C.F.R. §§ 23.107-.109, .111 (2016). The new regulations were quickly followed by new guidelines issued in December 2016. See Bureau of Indian Affairs, Guidelines for Implementing the Indian Child Welfare Act (Dec. 2016),https://perma.cc/3TCH-8HQM (2016 Guidelines). Consistent with the 2015 Guidelines applicable here, these new regulations and guidelines require the court to ask all participants in the case whether there is reason to know the child is an Indian child and to instruct the participants to inform the court if they later discover information that provides reason to know the child is an Indian child. See 25 C.F.R. § 23.107(a); 2016 Guidelines at 11. And, if a new child custody proceeding is initiated for the same child, the court must again inquire into whether there is a reason to know that the child is an Indian child. 25 C.F.R. § 23.107(a).
Turtle Talk 
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