Child Welfare

Published Decision out of the California Court of Appeals (ICWA Inquiry)

Kate Fort

Here

The father ultimately dropped his appeal of the ICWA inquiry, but the court’s comment is worth noting:

To be sure, the juvenile court’s analysis whether the evidence is sufficient to trigger ICWA’s notice requirements for Andrew and Kailey will be enhanced if additional information concerning Jonathan’s Indian ancestry is presented to the court. But the burden of developing that information is not properly placed on Jonathan alone. Section 224.3, subdivision (a), imposes on child protection agencies, as well as the juvenile court, the affirmative and continuing duty to inquire whether a dependent child is or may be an Indian child. (See In re Kadence P., supra, 241 Cal.App.4th at p. 1386; In re H.B. (2008) 161 Cal.App.4th 115, 121; see also Cal. Rules of Court, rule 5.481(a).) As soon as practicable, the social worker is required to interview the child’s parents, extended family members, the Indian custodian, if any, and any other person who can reasonably be expected to have information concerning the child’s membership status or eligibility. (§ 224.3, subd. (c); In re Shane G. (2008) 166 Cal.App.4th 1532, 1539; Cal. Rules of Court, rule 5.481(a)(4).) From the record presented to us, it appears the Department and the juvenile court failed to satisfy that duty; neither the court nor the Department made any effort to develop additional information that might substantiate Jonathan’s belief he may have Indian ancestry by contacting his siblings or other extended family members. Both federal and state law require more than has been done to date. On remand, an adequate investigation by the Department with a full report to the court must be promptly completed.

Article on California’s Report on ICWA (non) Compliance

Kate Fort

Report: Compliance with Indian Child Welfare Act Spotty

The report found that state and local agencies still struggle with the law, according to Kimberly Cluff, a task force member and staff member of the Morongo Band of Mission Indians. She said the tribes feel like they’re at “ground zero.”

“The law provides the tribes and, more importantly, tribal children with a bunch of rights, but if the tribe doesn’t know the child is in foster care, or if nobody asks the question of family tribal status, then all those protections are lost,” Cluff said. “If we don’t know that child is an Indian, we can’t protect them as an Indian and it’s just somewhat shocking that 40 years after the passing of this law, we’re still talking about basic implementation.”

A copy of the Report is here.

US Civil Rights Commission Applauds SCOTUS Outcome in Dollar General

Matthew L.M. Fletcher

Here.

AK Bill Designed to Address Tununak ICWA Case Signed into Law by Governor Walker

Kate Fort

Press Release here.

House Bill 200 was sponsored by Governor Walker, working in close collaboration with the Alaska Federation of Natives and Tribes. The bill is designed to correct and minimize recent legal barriers that were put in place for families interested in adopting Alaska Native children following the U.S Supreme Court Baby Girl Veronica decision and the Tununak litigation in the Alaska Supreme Court.

Bill here.

Oral Arguments in Gila River Indian Community v. Dept. of Child Safety et al

Kate Fort

One of the children in this case was originally the named plaintiff in A.D. v. Washburn (also called Carter v. Washburn, or the Goldwater litigation). Goldwater is representing the foster parents in this case, now in state court. Tom Murphy, in-house at GRIC, is doing the oral argument for the tribe here.

Judge Ron Whitener and Kate Fort Presentations at NCJFCJ Annual Conference

Victoria Sweet

Judge Ron Whitener, Chief Judge of the Tulalip Tribal Court, was the first ever Native plenary speaker at NCJFCJ’s Annual Conference. He gave a presentation entitled “How State and Tribal Court Judges Can Work Together to Improve Outcomes.” Judge Whitener’s presentation was very well-received by the judges, and he received a standing ovation from the audience.

In addition, Kate Fort presented a well-attended session entitled “What State Court Judges Need to Know About ICWA.” Kate gave a brief update on recent court activity around ICWA and then summarized some key provisions in the new ICWA regulations. The judges were thrilled to receive this brand new and important information.

Thanks to both of them for their contributions to the conference and to NCJFCJ for its continuing commitment to tribal courts, tribal issues, and tribal-state collaborations.

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Globe and Mail Article on Cindy Blackstock

Kate Fort

Here.

“What I saw were children being systemically removed from these communities. And I’d go to these communities, and there was no running water, and people would wonder why the kids weren’t clean, and I’d think maybe someone should do something about the water. We would see the multigenerational impacts of residential schools, and there are no mental-health services that are culturally appropriate. So there were all these layers of inequality and I started to realize it was the system, in many cases, that was creating conditions where families were not going to be successful in caring for their kids. And nobody was really holding the system to account.”

 

California Supreme Court Case on Active Efforts and Tribal Membership

Kate Fort1 Comment

Here.

The Court held this court rule to be invalid:

The rule provides: “If after notice has been provided as required by federal and state law a tribe responds indicating that the child is eligible for membership if certain steps are followed, the court must proceed as if the child is an Indian child and direct the appropriate individual or agency to provide active efforts under rule 5.484(c) to secure tribal membership for the child.” (Rule 5.482(c), italics added.) We conclude the rule is invalid as a matter of state law.

But this rule to be valid:

Rule 5.484(c)(2) provides: “In addition to any other required findings to place an Indian child with someone other than a parent or Indian custodian, or to terminate parental rights, the court must find that active efforts have been made . . . to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family, and must find that these efforts were unsuccessful. [¶] . . . [¶] (2) Efforts to provide services must include pursuit of any steps necessary to secure tribal membership for a child if the child is eligible for membership in a given tribe, as well as attempts to use the available resources of extended family members, the tribe, tribal and other Indian social service agencies, and individual Indian caregivers.”