Child Welfare

Unpublished California ICWA Notice Case and the Passive Voice

Kate Fort

Opinion here. Court reversed termination and remanded for notice to Navajo Nation.

Classic example of the passive voice here:

The responsibility for compliance with ICWA falls squarely and affirmatively on the court and the Department. (Welf. & Inst.Code, § 224.3, subd. (a); In re Antoinette S. (2002) 104 Cal.App.4th 1401, 1409.)3 Both Robert and the paternal grandmother stated that there was native American heritage in the family. As early as the detention hearing, the juvenile court ordered the Department to make the necessary inquiries and send the required notices. Thereafter, as everyone acknowledges, the ball was dropped.

Unpublished California Notice Case Cites 2015 BIA Guidelines

Kate Fort3 Comments

Court reversed and remanded for ICWA notice compliance. Opinion here.

The recently updated “Guidelines for State Courts and Agencies in Indian Child Custody Proceedings” (Guidelines) provide that tribes have the sole jurisdiction and authority to determine whether a child is eligible for membership. (Guidelines, 80 Fed. Reg. 10146-02 (Feb. 25, 2015), § B.3(b) & (c), p. 10153.) Tribes that are not notified of dependency proceedings cannot assert their rights under ICWA. (In re Marinna J. (2001) 90 Cal.App.4th 731, 739.) “Under these circumstances, it would be contrary to the terms of the Act to conclude . . . that parental inaction could excuse the failure of the juvenile court to ensure that notice under the Act was provided to the Indian tribe named in the proceeding.” (Ibid.) Thus, parents in a dependency proceeding are permitted to raise ICWA notice issues on appeal even where no mention was made of the issue in the juvenile court. (In re Alice M. (2008) 161 Cal.App.4th 1189, 1195.) Accordingly, we reject the Agency’s assertion that Mother forfeited any ICWA issue when she failed to object to the juvenile court’s ICWA finding.

Executive Office of the President, OMB Highlights Native Youth Priorities for FY 2017 Budget

Kate Fort

Document here.

Support the Implementation ofthe Indian Child Welfare Act (ICWA). The Indian Child Welfare Act (ICWA) is a federal law that seeks to keep American Indian children with American Indian families. Congress passed ICW A in 1978 in response to the alarmingly high number of Indian children being removed from their homes by both public and private agencies. The intent of Congress under ICWA was to “protect the best interests of Indian children and to promote the stability and security of lndian tribes and families” (25 U.S.C. § 1902). The implementation of ICW A requires support for tribal and state courts, social workers and foster care. ICWA also calls for services that keep families together. These could be family assistance services, home improvement programs, alternatives to incarceration and employment support services. Agencies should focus on programs that support the capacity building and programmatic support necessary to implement ICWA.

Via GJ.

Unreported ICWA Placement Preference Case out of California

Kate Fort

Here.

Very difficult case with extensive testimony. Child was ultimately placed with distant cousins instead of grandparents with a history with the department. The court found good cause to deviate from the tribe’s preferences of matrilineal relatives.

Because there is so much testimony in this opinion, it gives a window into the way the lower courts are making these decisions, and how the court understands how children connect to their tribal communities:

[Foster parent] already encouraged [three year old child] to look at Chickasaw language flashcards and language applications, to make beaded necklaces, and to hunt, fish, and pick berries.

The Department’s report recommending good cause to deviate from placement preferences included this very frustrating statement:

It is unfortunate that that [sic] tribe is so distant and has not had the opportunity to meet Autumn and the people she considers to be parents. If they had, they may decide that it is in actuality in their tribe’s best interest to avoid placement disruption and the possibility of creating an attachment disorder in this young child who currently has such a bright future.

Public Defender Job Position at Yakima Nation

Kate Fort

Here.

Employee serves as attorney for the Yakama Nation Public Defenders office and is responsible for providing professional, legal assistance to Tribal member client in Tribal, State, and Federal Court systems or administrative agencies as assigned by the Lead Attorney-Program Manager, with an emphasis on civil matters. Employee is responsible for providing a full ranges of legal services to Tribal members in areas of civil, family and Federal Indian Law matters, and in criminal matters as assigned by the Lead Attorney-Program Manager. Services include legal research, evaluations of potential cases, analysis and preparation of accepted cases, motions, brief, hearings, trials and appeals. Representation will include all stages of civil proceedings through disposition and review hearings until the attorney withdraws. Representation in criminal matter will include all stages of criminal proceedings from arraignment through disposition. The attorney may be appointed by the court(s) as Guardian Ad Litem in matters involving Tribal members deemed incompetent or for those persons placed in protective custody.

Survey of Tribal Child Welfare Codes by NNI and NICWA

Kate Fort1 Comment

Poster version of the research here.

Active Efforts/Step-Parent Adoption Case out of Washington Court of Appeals

Kate Fort

Here.

The Court found the active efforts provision applied to the termination of father’s parental rights in a step-parent adoption, despite the father being non-Indian. In addition, the court found active efforts applied despite Adoptive Couple v. Baby Girl, not only because the facts were different, but also because of the Washington state ICWA statute.

A.D. v. Washburn–ICWA Class Action Suit

Kate Fort

Complaint here.

Quite the first paragraph:

By honoring the moral imperatives enshrined in our Constitution, this nation has successfully shed much of its history of legally sanctioned discrimination on the basis of race or ethnicity. We have seen in vivid, shameful detail how separate treatment is inherently unequal. Brown v. Board of Education, 347 U.S. 483, 495 (1954). There can be no law under our Constitution that creates and applies pervasive separate and unequal treatment to individuals based on a quantum of blood tracing to a particular race or ethnicity. This country committed itself to that principle when it ratified the Fourteenth Amendment and overturned Dred Scott v. Sandford, 60 U.S. 393 (1857), and when it abandoned Plessy v. Ferguson, 163 U.S. 537 (1896).

This complaint goes directly at the right of tribes to determine their tribal citizenry. From this paragraph on, the complaint bases everything on the “child’s race” or “Indian ancestry” and their “unequal treatment” under ICWA:

Most Indian tribes have only blood quantum or lineage requirements as prerequisites for membership. See Miss. Band of Choctaw Indians Const. art. III, § 1; Cherokee Nation Const. art. IV, § 1; Choctaw Nation of Okla. Const. art. II, § 1; Muscogee (Creek) Nation Const. art. III, § 2; Gila River Indian Community Const. art. III, § 1; Navajo Nation Code § 701; Guidelines for State Courts and Agencies in Indian Child Custody Proceedings, 80 Fed. Reg. 10146, 10153, B.3 (February 25, 2015) (“New Guidelines”). Consequently, ICWA’s definition of “Indian child” is based solely on the child’s race or ancestry.

The Goldwater Institute’s roll out and website regarding the case. This is highly funded, highly professional media campaign.

Goldwater Institute to File a Class Action Lawsuit Against ICWA

Kate Fort7 Comments

This should be a call to arms for Indian country. This is presumably a well funded organization with a litigation, scholarly, and public relations strategy. Indian country lost Adoptive Couple v. Baby Girl because the adoption industry won the PR battle before Indian country even noticed. It’s time to act.

From the press release we received. This will become the third ongoing federal lawsuit challenging ICWA:


Goldwater Institute to File Class Action Lawsuit Against Indian Child Welfare Act

Institute launching Equal Protection for Indian Children Project to reform federal and state laws that discriminate against abused and neglected Native American children

 Contact: Starlee Coleman, (602) 758-9162

 Phoenix—Tomorrow, Tuesday, July 7, the Goldwater Institute will launch a new project to reform the Indian Child Welfare Act and similar state laws that give abused and neglected Native American children fewer rights and protections than other American children. Part of this project will be a class action lawsuit.

 “When an abused child is removed from his or her home and placed in foster care or made available for adoption, judges are required to make a decision about where the child will live based on the child’s best interest. Except for Native American children. Courts are bound by federal law to disregard a Native American child’s best interest and place the child in a home with other Native Americans, even if it is not in his or her best interest,” said Darcy Olsen, president of the Goldwater Institute. “We want federal and state laws to be changed to give abused and neglected Native American children the same protections that are given to all other American children: the right to be placed in a safe home based on their best interests, not based on their race.”

 On July 7, the Goldwater Institute will file a federal class action lawsuit to challenge the constitutionality of core provisions of the federal Indian Child Welfare Act. The same day, the Institute will release an investigative report that documents how federal law leaves Native American children with fewer protections under the law than all other American children, and the serious consequences that have resulted from this unequal treatment. Recommendations for changes to state and federal law will also be announced.

 Two weeks ago both the House and Senate passed the Native American Child Protection Act that for the first time requires prospective adoptive and foster parents to be fingerprinted. The Bureau of Indian Affairs is currently considering turning recent guidelines into formal federal rules that would further entrench the legal discrimination against Native American children.

 Clint Bolick, the vice president of litigation at the Goldwater Institute, litigated a class action in Texas in 1995 that was the impetus behind the federal Multi-ethnic Placement Act, which outlawed delays or denials in foster care or adoption placements on the basis of the race, color, or national origin of the child or the adults involved.

 Media is invited to watch via live stream a press event that will formally announce the details of the lawsuit, release the investigation, and policy recommendations, and screen an original 8-minute documentary film. The briefing will feature Dr. William B. Allen, the former chairman of the U.S. Commission on Civil Rights.

 What:              Press conference announcing the Equal Protection for Indian Children Project and federal class action lawsuit

When:             Tuesday, July 7, 2015, 9:00 a.m. Pacific time

Where:           https://www.youtube.com/user/GoldwaterInstitute

Who:               Press event will feature Darcy Olsen, president of the Goldwater Institute; Clint Bolick, the Institute’s vice president of litigation; Mark Flatten, the author of the Institute’s investigative report to be released; Dr. William Allen

 Please contact Starlee Coleman at scoleman@goldwaterinstitute or (602) 758-9162 with questions.

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Report by Center for the Study of Social Policy–Child Welfare Policy Strategies to Improve Outcomes for Children of Color

Kate Fort1 Comment

Here.

Nationally, families of color – particularly African
American and American Indian and Alaska Native (AI/AN) – are over-represented in child welfare systems. These families also tend to have worse outcomes – such as children more likely to be removed from their homes, less likely to receive family preservation services, and in the case of African American children, experiencing longer stays in foster care. Public policy can play an important role in reducing these disparities and
improving outcomes for children and families of color. This report highlights policy strategies that have shown promise in improving outcomes for children and families of color in child welfare
systems.