Child Welfare

GAO Report on Tribal Title IV-E Programs

Kate Fort

Via NICWA.

Link here.

Indian tribes developing title IV-E foster care programs faced resource constraints and reported challenges adopting some program requirements. According to GAO’s interviews with tribal and Department of Health and Human Services (HHS) officials, the resource constraints faced by tribes include limited numbers of staff and staff turnover. While the Fostering Connections to Success and Increasing Adoptions Act of 2008 (Fostering Connections Act) allows tribes to administer a title IV-E foster care program, it generally did not modify title IV-E’s requirements for tribes. By contrast, some other programs administered by HHS offer tribes additional flexibilities, provided they are consistent with the objectives of the program. Given tribes’ resource constraints and cultural values, adopting some title IV-E requirements has been difficult. For example, officials from 6 of 11 tribes developing title IV-E programs that GAO interviewed said that the requirement to electronically submit case-level data on all children in foster care was challenging. In addition, 7 of these 11 tribal officials reported that incorporating termination of parental rights—which severs the legal parent-child relationship in certain circumstances—into their tribal codes was challenging because it conflicts with their cultural values. HHS recognizes that termination of parental rights may not be part of an Indian tribe’s traditional beliefs; however according to the agency it lacks the statutory authority to provide a general exemption for tribal children from the requirement.

Report here (pdf, 47 pages)

Call for Written Comments on New AFCARS Regulations

Kate Fort

We’ve written about this in the past. Here is a letter from NICWA explaining more about the regulations, and the reason for written comments (and if you scroll to the bottom, they’ve even provided a sample comments letter):

Dear Advocates for the Indian Child Welfare Act,

The National Indian Child Welfare Association has been diligently working for over 25 years to increase state compliance with the Indian Child Welfare Act (ICWA). This has included training of state and tribal workers, helping tribes develop inter-governmental agreements with states, participating in state and federal ICWA cases, and advocating for federal monitoring of state ICWA compliance. One of the areas where the greatest need exists is data collection. No federal agency collects comprehensive data on the status of native children and their families who are involved in state child welfare proceedings and subject to ICWA.

 NICWA has advocated for the Administration for Children and Families (ACF) under the Department of Health and Human Services to collect ICWA data on individual cases, both because of the relationship they have with states through funding and policy, and because of federal law and policy that directs them to collect some related data. ACF has resisted efforts to collect more comprehensive ICWA data in the past, but draft regulations published in the Federal Register on February 9, 2015 propose collecting new data within the federal government’s largest data system for children who are placed in out of home care by state or county child welfare authorities. This system is the Automated Foster Care and Adoption Reporting System (AFCARS) and these proposed regulations present the best opportunity for tribal nations to finally convince ACF to collect ICWA data.

 NICWA is making the case that these proposed regulations should also include ICWA data elements, which are open for public comment until April 10, 2015, but we need your help if we are going to convince ACF to do this. The process for evaluating comments and what changes should be made in AFCARS will look at the number of individual comments ACF receives as well as the content of those comments. In other words, if we are able to provide ACF with substantial numbers of comments that recommend the inclusion of ICWA data elements in AFCARS, we may finally have a federal data system that regularly collects and tracks ICWA data. To make your job of filing comments easier, NICWA has provided a sample comments letter that you can use or modify as you see fit. We are also providing instructions below on how to file your comments electronically.

 This is an almost a once in a lifetime opportunity to finally get a more comprehensive collection of ICWA data. The last time AFCARS was open for substantive changes was in the early 1990’s so we probably won’t see another opportunity like this for many, many years. NICWA will be filing comments, but we also need your help too. If you have any questions about AFCARS, the proposed regulations, or how this will help ICWA compliance, please don’t hesitate to contact either myself or Addie Smith addie@nicwa.org. I want to thank you in advance for your help to increase the information and tools we have to increase protections under ICWA for our native children and families.

Best Regards,

David Simmons

Notice of Public Rulemaking on AFCARS

http://www.gpo.gov/fdsys/pkg/FR-2015-02-09/pdf/2015-02354.pdf

AFCARS Sample Comments Letter

Instructions on how to file comments electronically via www.regulations.gov (see link below for submission)

http://www.regulations.gov/#!submitComment;D=ACF-2015-0001-0001

  1. In the Comment box provide your name, contact information, and who you are submitting the comments on behalf of. State that you are uploading a file attachment that contains your comments. Don’t try to copy your comments letter in here unless it is less than 5000 characters (approximately 1.25 pages of text).
  2. In the Upload File(s) box click on Choose File then select the comments letter from your computer.
  3. In the First Name and Last Name boxes add the contact person’s name
  4. Check the appropriate box for whether you want to show your contact information or whether you are submitting the comments on behalf of a third party.

David Simmons, MSW | Director of Government Affairs and Advocacy

National Indian Child Welfare Association

5100 SW Macadam Avenue, Suite 300

Portland, OR 97239

OJJDP Grant Application to Provide Training and Technical Assistant on Juvenile Justice Issues

Kate Fort

Here.

OJJDP is seeking a Tribal Youth Program training and technical assistance provider to provide culturally, trauma-informed, and developmentally appropriate training; support, resources; information; and other related technical assistance to all OJJDP tribal program grantees and federally recognized tribes across the nation. When allocating resources, OJJDP-funded tribal program grantees would receive priority. The successful applicant will develop culturally specific training and technical assistance for tribes seeking to build capacity to develop, expand, improve and/or maintain their juvenile justice systems. Priority areas include juvenile healing-to-wellness courts, tribal youth-specific prevention, intervention, and treatment programming and tribal-state collaborations to meet the needs of American Indian/Alaska Native children exposed to violence. The successful applicant will collaborate closely with OJJDP’s other training and technical assistance efforts and
providers.

Commentary on Two Different (Unpublished) Notice Cases from California

Kate Fort3 Comments

On average we receive around a case a day out of California that mentions ICWA, and usually in the notice context. We don’t post all of them, and the vast majority of them are unpublished. But over the last couple of days, we’ve received two that demonstrate the large inconsistencies across the state when it comes to determining if the child is an Indian child, and notice procedures. Neither of these cases are outliers from the hundreds that go up each year, other than the difference in treatment caught our eye. This also demonstrates the difficulty in identifying exactly where additional resources need to be dedicated to ICWA enforcement–it’s not on a fifty state level, it’s on a county-by-county level.

In the first, out of the First Appellate District (Del Norte County) mother says her grandma told her their family may be from the “Comanche Nation.” Notice went out to Comanche, and the Nation said the child was not eligible for enrollment. However, on appeal, the court found

As noted, the only information the Department provided for the maternal grandmother—Nina’s mother—was her name and an incomplete address (“Grant’s Pass,Oregon”). The record contains evidence,however, suggesting that with a minimal amount of inquiry, the Department would have been able to obtain additional information regarding the grandmother. First, the family was involved in a dependency proceeding when Nina was a minor. By its own admission, the Department reviewed that file as part of the instant proceeding and, at a very minimum, would have been able to glean the grandmother’s date of birth, which was unquestionably in the file. This directly refutes the Department’s claim that “there is no indication that the social worker left out any available information.”

***

It was incumbent upon the Department to interview her extended family members to obtain whatever further details it could about the family’s Native American heritage.

In the second case, out of the Fourth Appellate District (San Diego County), mother said her family was affiliated with the “Winnebago Sioux tribe in Decorah, Iowa.” The social worker talked to mother and grandmother about it, and found “no one in the family ever lived on a reservation, attended an Indian school, participated in Indian ceremonies or received services from an Indian health clinic.” The court found

We conclude that proper inquiry was conducted to determine whether K.P. was a Native American child within the meaning for ICWA. The court questioned mother and her mother concerning the family’s Native American heritage. According to these relatives, no family members had ever been registered or eligible for enrollment with a tribe and the court was not required to give notice.

In both cases, the claims were attenuated. But regardless, the claims received very different treatment between the two trial courts–in the first, where the Department did not do enough inquiry, notice at least went out to the Comanche Nation. In the second, no one notified Winnebago (nor Ho-Chunk, for that matter), nor allowed either Nation to determine whether this family might be related. And then on appeal, both received very different treatment from the appellate courts. In the first, the court had to do better notice. In the second, the court didn’t have to do any notice.

NICWA Webinar on Updated BIA Guidelines

Kate Fort

This Friday at 10am PDT (1pm EDT). Register here. No cost.

A major development in tribal child welfare policy was announced on February 25, 2015. The Bureau of Indian Affairs announced that it had revised–effective immediately–the Guidelines for State Courts and Agencies in Indian Child Custody Proceedings for the first time since 1979. NICWA is hosting a free webinar on Friday, March 13, 2015, at 10 a.m. PDT to explain the revisions.

We encourage ICWA advocates, tribal and state child welfare workers, tribal and state attorneys, parents’ attorneys and judges to take the time to read the full updated guidelines. We also encourage discussion of these important changes to regularly scheduled meeting agendas, to hold new meetings and trainings to discuss these guidelines’ effects on their practice, and to disseminate these guidelines widely.

 

Job Opening at DOJ OJP–Senior Native American Policy Analyst

Kate Fort

Posting here.

AGENCY MARKETING STATEMENT:

  • Are you interested in working for a cutting edge agency with a mission to improve public safety, and the fair administration of juvenile justice? If so, the Department of Justice (DOJ) Office of Justice Programs, (OJP), is seeking a high performing individual to serve as a Tribal Senior Policy Advisor providing advice and guidance to resolve, implement, or manage program or policy issues that involve tribal youth programs.

 

NOTES:

  • This position is located in the Department of Justice (DOJ), Office of Justice Programs (OJP), Office of Juvenile Justice and Delinquency Prevention (OJJDP). OJJDP is focused on juveniles in crisis from serious, violent, and chronic offenders to victims of abuse and neglect. Charged by Congress to meet this challenge, OJJDP collaborates with professionals from diverse disciplines to improve juvenile justice policies and practices. OJJDP accomplishes its mission by supporting states, local communities, and tribal jurisdictions in their efforts to develop and implement effective programs for juveniles. The Office strives to strengthen the juvenile justice system’s efforts to protect public safety, hold offenders accountable, and provide services that address the needs of youth and their families. The incumbent provides advice and guidance to resolve, implement, or manage program or policy issues that involve major areas of complexity in approach or methodology; prepares short- and long-range planning guidance in accordance with broad program policies and objectives; prepares guidance based on analyses of interrelated issues of effectiveness, efficiency, and productivity of substantive mission-oriented programs in one or more of the OJJDP specific policy areas that have a direct impact on the lives of American Indian and Alaska Native youth (e.g. adapting a developmental approach to juvenile justice reform nationwide; responding to the key recommendations from the Attorney General’s Task Force on American Indian/Alaska Native Children Exposed to Violence; family/youth engagement; child protection; juvenile justice system improvement; and delinquency prevention).

 

DUTIES:

  • Plans, develops, and implements program/project development activities that affect broad mission areas related to Tribal Juvenile Justice. Participates in the design and development of new Tribal Juvenile Justice programs/projects, including preparation of scopes of work for design studies; selection of study contractors; and review and approval of completed design studies. Coordinates and collaborates with senior level management/programmatic staff of other OJP and DOJ offices on all comprehensive community-based and system development programs, with a particular emphasis on American Indian and Alaska Native youth.
  • Provides expert guidance in the resolution of complex problems or issues impacting DOJ American Indian and Alaska Native programs, such as crosscutting OJJDP issues involving other DOJ components or federal agencies. Participates in the analysis of OJP-wide projects and programs. Coordinates with DOJ’s Office of Tribal Justice.
  • Serves as an authoritative expert in analyzing legislation and developing standards, regulations, or policies that impact DOJ and OJP-wide programs involving American Indian and Alaska Native youth. Coordinates or synthesizes a cross section of criminal and juvenile justice issues with policy considerations that reflect a balance, and that meet the mission and needs of OJP/OJJDP programs.
  • Plans and develops strategies for maximizing the potential of outreach project opportunities, enhancing OJJDP’s visibility and interactions with its primary constituencies, including Congress and juvenile justice and tribal interest groups. Maximizes OJJDP’s outreach with other constituencies, including the corporate/profit sector, related non-profit organizations, other federal government agencies, local and state governments, and interested local community groups. Conceives and recommends entrepreneurial and innovative projects and activities or recommends the means of broadening and strengthening existing projects and activities that find a common ground with a widening range of stakeholders and build support for OJJDP with the general public. Makes clear and convincing oral presentations to individuals and groups, explaining facts and ideas which actively promote and advance OJJDP’s programs. Serves as a spokesperson by cultivating and maintaining effective relationships with organizations involved in tribal youth, juvenile justice and child protection issues and programs.

Commission to Eliminate Child Abuse and Neglect Fatalities Public Meeting

Kate Fort

Here.

Arizona Public Meeting

March 25 – 26

Meeting Times:

  • Wednesday, March 25: 8:00 a.m.–4:00 p.m. MST
  • Thursday, March 26: 8:00 a.m.-12:30 p.m. MST

**Please note that Arizona does not observe Daylight Saving Time.**

Meeting Agenda: CECANF was established to develop a national strategy and recommendations for reducing fatalities resulting from child abuse and neglect. The purpose of the March 25-26 meeting is for Commission members to explore key issues related to addressing and preventing child abuse and neglect fatalities in Indian Country. It will include presentations and discussions related to issues of jurisdiction, data collection and data sharing, and the quality and quantity of services. Speakers will include Tribal leaders, Federal agency representatives, and practitioners. Commission members will then continue discussing the work plans of the Commission subcommittees, the information that they have obtained to date, and emerging high-level recommendations.

Attendance: Individuals interested in attending the meeting in person or via webinar and teleconference must register in advance (see link below). The meeting site is accessible to individuals with disabilities. Members of the public will not have the opportunity to ask questions or otherwise participate in the meeting, either on the phone or in person. Comments or testimony can be submitted online.

Article on NCJFCJ Summit on Military and the Courts

Kate Fort

Here.

Though not mentioned in the article, Kate Fort and Peter Vicaire (VA, MSU ILPC alum) provided a 25 minute presentation on Native veterans, servicemembers, and ICWA at this event.

The Guardian Article on ICWA

Kate Fort

Fairly long read here.

Hanna is representing two South Dakota tribes in a class action lawsuit filed against state officials for systematically violating the act. Last week, the Bureau of Indian Affairs issues updated ICWA guidelines for state courts for the first time since 1979, specifically citing the lawsuit.

In December, US attorney general Eric Holder announced a new initiative to “actively identify state-court cases where the US can file briefs opposing the unnecessary and illegal removal of Indian children from their families and their tribal communities.” Holder promised to strengthen the act by ensuring compliance with the federal law with the caveat that “barriers erected over centuries of discrimination will not be surmounted overnight.”

Many native families and advocates say the commitment is long overdue. After decades of assimilation-oriented policies, ICWA was passed in 1978. By then, one in four Native American children were removed from their families and placed in boarding schools, adoption or foster care placements.

Despite the law’s intentions, the removal rate of all American Indian children increased to 35% over the following decade, 85% of whom were placed in non-Indian homes. Thirty-five years later, these children remain staggeringly overrepresented in state foster care placements across the country.

Thanks to MM for the heads up.

Michigan COA Opinion On ICWA, MIFPA and Adoptive Couple

Video Kate Fort

Here.

Big case out of Michigan’s Court of Appeals on an adoption with a very complicated fact pattern. The case was argued by MSU Law/ILPC alum Karrie Wichtman. The case held that MIFPA’s placement preferences in an adoption hold, even while ICWA’s failed under Adoptive Couple. It should also be noted that this was the analysis Jack Trope & Addie Smith followed in their article on Adoptive Couple and state ICWA laws.

MIFPA differs from ICWA in that it does not give a preference to eligible parties over ineligible parties. Rather, MIFPA requires that, absent good cause, the adoptive placement must be either with a member of the child’s extended family, a member of the Indian child’s tribe, or an Indian family, in that “order of preference.” MCL 712B.23(2). The record demonstrates that the Arbutantes have no familial connection to KMN; they are not connected to the Tribe, and they are not an Indian family. Therefore, absent a good cause finding, MIFPA precluded the trial court from placing KMN with the Arbutantes.

 

Unfortunately, the COA did not reinstate the abuse and neglect petition that started the case in the first place, leaving the child in legal limbo.