Child Welfare

Unpublished ICWA Case from Texas

Kate Fort1 Comment

Here. Probably need to do some training down in Texas:

On September 9, 2016, the [Texas] Department’s attorney sent proper notice to the Bureau of Indian Affairs. The [Texas] Department [of Family and Protective Services] also sent a letter dated March 16, 2017, to the Secretary of the Interior, ICWA, and to the Bureau of Indian Affairs, stating that W.C. testified that his Indian tribe was “maybe Lakota Sioux.” According to the Department’s letter, that tribe is not federally recognized as eligible for services or, more particularly, is not an “Indian tribe” pursuant to the ICWA. See 25 U.S.C.A. § 1903(8) (Westlaw through Pub. L. No. 115-22).

Emphasis added.

Alaska ICWA Case on QEW and Guardianship

Kate Fort

Here.

Ultimately the question turned on whether a long term guardianship is a foster care placement or a termination of parental rights (which have differing standards of proof). The court found it was a foster care placement, and required the testimony of a qualified expert witness.

Updated ICWA Appellate Page

Kate Fort

We’ve updated and cleaned up the ICWA Appellate Page. We’ve also added the eight comprehensive state ICWA laws to the page.

A link to the page is now available at the top of Turtle Talk in the menu, and the address is http://www.turtletalk.wordpress.com/icwa

Notice of Appeal in Goldwater ICWA Litigation

Kate Fort

As they promised they would, Goldwater filed their notice of appeal to the 9th Circuit in the Arizona ICWA class action case.

Here.

Order they are appealing is here.

As always, documents in the case will be housed here.

Resiliency In a Trauma-Informed High School

Kate Fort

Here.

I’ve now brought this article up twice in the past two days (including in class), so I’m posting it.

With the help of Natalie Turner, assistant director of the Washington State University Area Health Education Center in Spokane, WA, Sporleder and his staff implemented three basic changes that essentially shifted their approach to student behavior from “What’s wrong with you?” to “What happened to you?”

(emphasis added)

H/T Judge Whitener

Op-Ed in Maclean’s About Canada’s Child Welfare Crisis

Kate Fort

Here, by Pam Palmater. Canada’s numbers of Native children in care may be currently worse than pre-ICWA numbers in the United States (Task Force Four Report).

The increasing number of First Nations children being placed into foster care in Canada is nothing short of a crisis. Although Indigenous children make up only seven per cent of the population in Canada, they represent 48 per cent of all children in foster care. It is an astounding number until one examines these rates on a province-by-province basis. In Alberta, Manitoba and Saskatchewan, Indigenous children represent a shocking 73 per cent, 85 per cent and 87 per cent of all children in care respectively, according to the most recent Statistics Canada report. However, Manitoba reports that their numbers of Indigenous children in care are increasing and currently stands at 90 per cent, which represents one of the highest rates in the world. This isn’t much of a surprise given that one newborn is taken away from his or her mother every day in Manitoba as a matter of course—the vast majority being Indigenous. They are not the only provinces implicated as Indigenous children in Ontario are 168 per cent more likely to be taken into care than white children.

2017 Designated Contacts for ICWA Service

Kate Fort3 Comments

If you don’t use these, I will find out and talk about it in one of my presentations when I’m in your state. Or when I’m in other states. I travel a lot. Print them out and use them PLEASE:

2017-Designated Agents for ICWA Service

The Rights of Indian Children ABA Article

Kate Fort

The Rights of Indian Children: Indian Child Welfare Act Regulations | Section of Litigation : Children’s Rights Litigation | Section of Litigation

The tribe I worked for decided to “bring the children home” through a focus on children in their community and ensuring resources to support that work. Many strategies were employed, depending on case specifics. Ensuring the tribal children were closer to home, both in proximity and culturally, was the goal. Some cases achieved the goal through reunification with the natural parents, others by placement within kinship care from stranger foster care. One of the primary practices was the transfer of cases to tribal court when the parents were amenable. In the end we brought all but one child back into tribal custody with an over 75 percent kinship placement rate.

Federal Oklahoma ICWA Case Dismissed as Moot

Kate Fort

This lawsuit challenged the sections of the Oklahoma state ICWA statute (OICWA) concerning notice and intervention of tribes in voluntary proceedings. This case was first filed back in the summer of 2015. On March 31st, the Court agreed with Cherokee Nation’s most recent motion to dismiss as moot. All documents are here.

This means that of the federal lawsuits filed in the summer of 2015, only one currently survives (the sister suit to this one in Minnesota). It also means we have not received an adverse decision in any of them. This is great news, and a testament to the work of the tribal, federal, and state attorneys who had to defend against these suits.

However, it is also true that the Goldwater Institute has inserted itself into a growing number of state ICWA cases, and those cases are multiplying rapidly at the state level. The stated end goal of the Institute–to have ICWA found unconstitutional–remains, and they have not stopped working towards it.

We will be giving case status updates at both NICWA (Matt Newman, NARF) and the Federal Bar conference (Kate Fort) this year.

Published Notice Case out of the Colorado Court of Appeals

Kate Fort

In re LL

The Court uses the federal regulations and guidelines to determine each participant’s role in inquiry and notice, and remands for proper notice.

Unfortunately, the Court then goes on to hold that the higher standard of proof for a foster care placement under ICWA does not need to be made at adjudication (interestingly, Colorado is one of the few states that still has jury trials for child welfare proceedings). While the Court is correct that ICWA is “silent” on adjudicatory hearings, it does not make clear when the lower court should make the higher burden of proof finding. This is one of the issues in applying the federal law to individual state proceedings–adjudication with a jury makes the most sense for applying all of the protections of ICWA. Adjudication is where the judge (or jury) decides whether the state has the evidence that “warrants intrusive protective or corrective state intervention into the familial relationship” Id. at 22. While it might not be the point where the child is put into foster care, it is often AFTER the child has been placed in foster care. So if the higher standard for foster care placement isn’t applied at the emergency/24/48/shelter care hearing, and it’s not applied at the adjudicatory hearing, when, exactly, is it applied?