Maria Yellow Horse Brave Heart (UNM Department of Psychiatry and Behavioral Sciences), morning keynote speaker.
Child Welfare
Florida Law Review: Prof. Atwood’s Response to Prof. Berger’s Adoptive Couple Article
Prof. Berger’s article here.
Prof. Atwood’s response here.
Professor Berger, however, does not address another danger inherent in the Court’s § 1915 holding. If applied to involuntary child welfare proceedings, the holding threatens to seriously undermine the effectiveness of ICWA. In a recent decision from the Alaska Supreme Court, the risks inherent in Adoptive Couple’s broad § 1915 holding were demonstrated. In Native Village of Tununak v. State Department of Health & Social Services, the court applied Justice Alito’s reasoning to a case that arose not as a private adoption but within the child welfare system. 13 The court held that the proposed adoption of a Native child by his Anglo foster parents could go forward without the necessary finding of good cause under ICWA because no other formal adoption petition had been filed.14 In that case the child’s maternal grandmother had taken only informal steps to request that she be allowed to adopt but had not filed a formal petition.15 As noted by the dissent, in rural Alaska where villages are remote and legal representation is nonexistent, the requirement that a formal adoption petition be filed may mean that potential ICWA placements will go undiscovered.16
Other articles and cases related to Adoptive Couple are available here.
Developments in Alaska ICWA Case, Native Village of Tununak v. State of Alaska
State’s (AG) Response to Tribe’s Pet for Rehearing
Earlier briefs on the rehearing petition are here.
The Alaska executive branch published emergency regulations addressing formal petitions for adoptions in cases involving Indian children: Emergency Regulations 7 AAC 54.600
Here is the draft state bill sent to the Legislature by the Governor: Draft Bill
These emergency regulations allow for a simple request by a relative, tribal member or other Indian family at any court hearing, or a request by the same conveyed to the department by phone, mail, fax, email or in person, or by the request of the child’s tribe on behalf of a relative or tribal member to constitute a proxy for a formal petition for adoption.
In addition, the Governor is holding a press conference on this today (10:30am/2:30pm EDT) :
MEDIA ADVISORY
Contact:
Grace Jang, Press Secretary – (907) 465-3976
Katie Marquette, Deputy Press Secretary – (907) 465-5801
Governor Walker to Hold News Conference Tomorrow
WHO: Governor Bill Walker, Lt. Governor Byron Mallott, DHSS Commissioner Val Davidson and Alaska Federation of Natives President Julie Kitka
WHAT: News conference to discuss Indian Child Welfare Act-related emergency regulations
WHEN: Thursday, April 16, 2015, 10:30 a.m. to 11:00 a.m.
WHERE: Governor’s Cabinet Room, Capitol Building, Juneau
TELECONFERENCE NUMBER: (800) 755-6634
LIVESTREAM: gov.alaska.gov/livestream<http://gov.alaska.gov/Walker/multimedia/livestream.html>
###
Briefs in California Supreme Court ICWA Notice Case
Petition for review after the Court of Appeal affirmed an order terminating parental rights. This case presents the following issue: Does a parent’s failure to appeal from a juvenile court order finding that notice under the Indian Child Welfare Act was unnecessary preclude the parent from subsequently challenging that finding more than a year later in the course of appealing an order terminating parental rights?
Stephen Pevar on the Oglala Sioux v. Van Hunnik Victory
Here.
All of the cards were stacked against the parents in these proceedings and the parents lost 100 percent of the time.
That’s right, you didn’t misread that. The state won 100 percent of the time, which isn’t surprising given that only the state was allowed to present any evidence and all of that evidence was submitted secretly to the judge. But two South Dakota Indian tribes — the Oglala Sioux Tribe and the Rosebud Sioux Tribe — and three Indian parents fought back.
California Unpublished Stipulated Complete Lack of Notice Case
Here. The Department and trial court ignored federal law, state law, the new Guidelines, and the proposed Regulations:
In September 2013, paternal grandmother indicated that the child may have ancestry in the Soboba Indian Tribe. There is no indication of notice to the Soboba Indian Tribe in the record. Regardless, at the detention hearing held September 18, 2013, the juvenile court found that ICWA did not apply.The court terminated father’s parental rights as to L.C. at the Welfare and Institutions Code section 366.26 hearing.
Fourth District, Riverside County.
Kevin Maillard’s Atlantic Article on Putative Father Registries
Here.
Since the 1970s, 33 states have created Putative Father Registries, designed as a way to link unmarried men to the mother of their child. States expect men to report—voluntarily and honestly—information about all their sexual partners; otherwise, they forfeit their right to be contacted if a partner pursues adoption. The registry is not a petition for custody or a determination of paternity—only a right to notification. Without registry, the wishes of the biological father are irrelevant.
Measuring Compliance with ICWA
Here is a Casey Family Programs publication, “Measuring Compliance with the Indian Child Welfare Act”
At present, no federal agency is tasked with ensuring state compliance with the protections mandated by ICWA. Without federal oversight, state legislatures, public child welfare authorities and courts are left to interpret ICWA provisions and definitions of “active efforts.”22, 23 Despite overall decreases in rates of out-of-home placements, Indian children remain disproportionately represented in the foster care system, at more than twice the rate of the general population,24 though this varies among states.25
Related, here is a copy of the law professors comments to the original AFCARS proposed rule on collecting data.
There is no statistical data required on Indian children from State or Tribal child and family care agencies. There is also no data on State compliance with ICWA. Under § 429(c), the ACF already possess and exercises the requisite authority to collect ICWA data. 42 U.S.C. 479(c)(3)(A)-(D).
The AFCARS regulations should follow the same requirements for Title IV-B Agencies in ICWA data reporting, as seen in the PIs released by HHS. [ACYF-CB-PI-14-03 (2014)]. HHS has defined “Title IV-E Agency” “as the State or Tribal agency administering or supervising the administration of the title IV-B and title IV-E plans.” 77 F.R. 896. Under this definition, Title IV-B Agencies may also be Title IV-E Agencies. Due to this, ACF should also include similar ICWA data requirements in AFCARS.In addition, the SSA also requires AFCARS to “provide comprehensive national information” regarding “the extent and nature of assistance provided by Federal, State, and local adoption and foster care programs and the characteristics of the children with respect to whom such assistance is provided.” 42 U.S.C. 479(c)(3)(d). Not only does this encompass Title IV-B Agencies, but also Title IV-E Agencies, which HHS provides direct Title IV-E funding to Tribes and Tribal child and family service programs under the Fostering Connections to Success and Increasing Adoption Act of 2008. The American Indian / Alaska Native children in these Title IV-B or Title IV-E Agencies are ICWA children, and that data should also be collected in order to “ensure that the [AFCARS] system functions reliably throughout the United States.” 42 U.S.C. 479(c)(4).
Under this legal and policy background, and as recommended by HHS, we recommend ACF add the following data elements and questions to the AFCARS in order to comply with ICWA.
Information on Proposed Changes to the Minnesota ICWA Law
From the Center for Advanced Studies in Child Welfare:
It is apparent that the BIA guidelines on Indian child welfare proceedings overlap with current legislation in Minnesota, showing that efforts by the BIA and other advocates have likely been considered. The modifications to MIFPA and changes to out-of-home placement provisions are sensitive to tribal involvement, and the importance of heritage and culture in the lives of Indian children and families is clearly defined in the proposed purpose of MIFPA and other aspects of the new legislation. The bills fill gaps previously left unclear or undefined.
While the bills show much progress for Indian child welfare in Minnesota, there is one thing to consider. In terms of court placement of an Indian child outside of the placement preferences, both bills allow social services agencies to provide testimony that they have performed diligent efforts to follow the ICWA placement preferences. What is unclear is how the courts plan to measure the level of diligence and whether or not DHS would provide guidance over this.
South Dakota Tribes Win Federal ICWA Case, Oglala Sioux v. Van Hunnik
The 45 page order granting partial summary judgment is HERE, with a judgment order granting injunctive and declaratory relief forthcoming in May.
The court finds that Judge Davis, States Attorney Vargo, Secretary Valenti and Ms. Van Hunnick developed and implemented policies and procedures for the removal of Indian children from their parents’ custody in violation of the mandates of the Indian Child Welfare Act and in violation of the Due Process Clause of the Fourteenth Amendment to the United States Constitution.
The case directly addressed section 1922 emergency removal standard of evidence and return of the child; and due process claims at those emergency hearings (48-hour hearing) of notice, the right of parents to present evidence, to cross-examine witnesses, attorney representation, and a decision based on evidence at that hearing.
Among many other things, the judge addresses both the old and new Guidelines (which specifically mentioned this case):
A simple examination of these administrative materials should have convinced the defendants that their policies and procedures were not in conformity with ICWA § 1922, the DOI Guidelines or the Guidelines promulgated by the South Dakota Unified Judicial System. Indian children, parents and tribes deserve better.
The order grants summary judgment on the ICWA violations AND the Due Process ones:
Judge Davis and the other defendants failed to protect Indian parents’ fundamental rights to a fair hearing by not allowing them to present evidence to contradict the State’s removal documents. The defendants failed by not allowing the parents to confront and cross-examine DSS witnesses. The defendants failed by using documents as a basis for the court’s decisions which were not provided to the parents and which were not received in evidence at the 48-hour hearings.
This is amazing–congratulations and many thanks to all involved. Especially to the families.
Previous coverage here. Summary judgment briefs and exhibits here.
Turtle Talk 
You must be logged in to post a comment.