Child Welfare

The UPDATED BIA ICWA Guidelines

Kate Fort2 Comments

Updated Guidelines!

From the website here. Press release here.

The new Guidelines, not updated since 1979, look really good. For example, there are fifteen examples of active efforts, which are explicitly separated out from ASFA findings. There is some clear language around determining putative fathers. They clarified 1922’s emergency removal provisions. They took out the “advanced stage of the proceedings” exception for transfer to tribal court. And quoting now,

There is no exception to the application of ICWA based on the so-called “existing Indian family doctrine.”

Thank you to everyone for all of the work on this. This is huge.

Also, thanks to C.N. for the heads up.

Additional Call-in For Tribes on AFCARS Proposed Rules

Kate Fort

If you missed Friday’s call, here is another opportunity to call in. In addition, the government is taking written comments on the rule changes through April 10. This is a chance to get the federal government to add ICWA-related reporting requirements to AFCARS, which applies to states and some tribes. By adding ICWA reporting requirements, the federal government has the opportunity to force states to better track ICWA compliance.

Colleagues:

 As we announced earlier this week, the Children’s Bureau will hold national informational calls with stakeholders, states and tribal representatives on the Notice of Proposed Rule Making (NPRM) on the Adoption and Foster Care Analysis and Reporting System (AFCARS) that was published in the Federal Register on Monday, February 9, 2015.

The first call with states and stakeholders was held on Wednesday, February 18th.  The second call for states and stakeholders will take place on Friday, February 20, 2015 from 1:00-2:00 p.m. Eastern. 

We are pleased to announce that we have added a second informational call for tribal representatives.  The two informational calls with tribal representatives will take place on Friday, February 20, 2015 from 3:00-4:00 p.m. Eastern and Wednesday, March 4, 2015 from 3:00-4:00 p.m. Eastern. 

 Attached is the presentation that we use during the calls.  This presentation is the same for all calls and will be available on the Children’s Bureau website shortly.  The agendas with updated call-in information are attached.  The content of the agendas has not changed.

This is a reminder that these calls provide an overview of the NPRM for informational purposes only.  We will not take questions during any of the calls.  If you wish to comment on the NPRM, please submit comments to www.regulations.gov on or before April 10, 2015.  The text of the NPRM can be found here: http://www.gpo.gov/fdsys/pkg/FR-2015-02-09/pdf/2015-02354.pdf

 Please forward this information to interested parties.

 

ICWA Notice Case Out of New Jersey

Kate Fort

Here.

To minimize the delay in securing permanency and stability for Ann, the trial court shall ensure that the notices are sent forthwith. The judgment terminating parental rights shall be deemed affirmed if after being served with the requisite notices under the ICWA: (1) no tribe responds to the notices within the time provided under the ICWA; (2) no tribe determines within the time allotted under the ICWA that Ann is an Indian child as defined by the ICWA; or (3) the court determines, after the tribes have been given an opportunity to intervene, that the ICWA does not to apply to this matter. If Ann is determined to be an Indian child under the ICWA, the judgment terminating parental rights shall be vacated and the trial court shall hold further proceedings consistent with the ICWA. All proceedings shall be conducted as expeditiously as practicable in accordance with the overarching goal of attaining permanency for Ann.

Video from Sec. Jewell on Native Youth Listening Tour

Kate Fort1 Comment

Wyoming Supreme Court Applies Adoptive Couple Case in Termination Proceedings

Kate Fort1 Comment

Here.

We note that Appellant does not provide any discussion of the U.S. Supreme Court’s decision in Adoptive Couple v. Baby Girl. In any event, however, we would agree with the reasoning of the Supreme Court and conclude that it applies with equal, if not greater, force in the present case. In this case, Appellant has not asserted that he has any Native American heritage that would qualify ARW as an “Indian child” under the ICWA. Rather, he claims that ARW “might be” an “Indian child” because ARW’s mother is “half Apache.” ARW’s mother, however, relinquished her parental responsibilities to Appellees soon after ARW’s birth, and she allowed them to exercise her custody and visitation rights after she was divorced from Appellant. Further, ARW’s mother consented to termination of her parental rights in the adoption proceedings. Accordingly, as in Adoptive Couple v. Baby Girl, the “breakup” of an Indian family would not be precipitated by the termination of Appellant’s parental rights. We find no error in the district court’s conclusion that the ICWA did not apply to the termination proceedings.

 

Call for Tribes on Changes to Adoption and Foster Care Analysis and Reporting Systems

Kate Fort

Call in information and agenda here.

This is an information session [for tribes] for the Children’s Bureau to provide an overview/summary of the Adoption and Foster Care Analysis and Reporting System (AFCARS) Notice of Proposed Rulemaking (NPRM), which was published in the Federal Register on February 9, 2015

From NICWA’s press release:

A Notice of Proposed Rule Making on AFCARS was published in the Federal Register on Monday, February 9, 2015, announcing that ACF intends to change some of the AFCARS reporting requirements. The full text of this Notice of Proposed Rule Making and proposed changes can be found here and an overview is available here.

Currently, there is no requirement for states to report data related to the Indian Child Welfare Act (ICWA) as a part of AFCARS. In addition, AFCARS does not require states to identify children in their care who are eligible for ICWA’s protections. Without this data there is no national information about how and when ICWA is followed in state child welfare systems

NICWA Conference: Workshops for Legal Professionals

Kate Fort

The National Indian Child Welfare Association’s (NICWA) 33rd Annual Conference: Protecting Our Children National American Indian Conference on Child Abuse and Neglect features a wide range of workshops for legal professionals looking to expand their knowledge of ICWA, including Looking Forward: Policy and Practice to Protect Against the Adoptive Couple v. Baby Girl Decision and many others.

There will also be a legal professionals coffee hour sponsored by ILPC and TICA, on Monday, April 20th at 5:30 pm. NICWA’s own ICWA expert Addie Smith, Kate Fort from the ILPC, and other leaders in the field of federal Indian law will be in attendance. Come and see us!

Register for NICWA’s annual conference here.

Agenda is here.

Montana Supreme Court ICWA Case

Kate Fort

Here.

We conclude that Mother received fundamentally fair procedures prior to the termination of her parental rights. She never raised any objection to the lack of a formal adjudicatory hearing, and her stipulations reflect her assent to the determination that H.T. was abused or neglected. The child’s Tribe was notified of the proceedings at the early stages, indicated its desire to monitor the case, and did not participate after it received appropriate, timely notice of the termination hearing. Proper expert testimony was presented at the termination hearing. Because the District Court applied the wrong statutory standards in its final order, however, its judgment is vacated. We remand for entry of a new order on
the issue whether Mother’s parental rights should be terminated.

Three (Unpublished) California ICWA Cases

Kate Fort

One notice opinion involving relationships with the Pala Band of Mission Indians and perhaps a Cahuilla tribe, but of course, the department would have to send notice to determine that.

A second opinion holding the rules requiring CPS to help enroll a child in her tribe (Cherokee) as active efforts are valid

Consistent with this state interest in protecting an Indian child’s interest in tribal membership, rules 5.482 and 5.484 impose an affirmative duty on the juvenile court and the county welfare department to make an active effort to obtain tribal membership for a child when the tribe has notified the county welfare department that the child is eligible. To the extent the rules require CPS to make a reasonable, active attempt to obtain tribal membership for a child, we conclude the rules do not expand or conflict with the state or federal statutory definition of an Indian child. The rules’ requirement that CPS “provide active efforts under rule 5.484(c) to secure tribal membership for the child” (rule 5.482(c)) furthers the objective of ICWA and has no bearing on the ICWA definition of “Indian child.”

***

CPS received four requests to complete an enrollment application, beginning in December 2012, and still had not done so over six months later. The record does not show any reason for CPS not providing the Tribe with a completed, signed enrollment application by the time of the section 366.26 hearing in June 2013.
We therefore conclude CPS failed to comply with rules 5.482(c) and 5.484(c) by not taking reasonable, active steps to secure tribal membership for the children. Such error was not harmless. Active efforts to obtain membership for the children likely would lead to the children becoming Tribe members subject to ICWA protections, and would enable the Tribe to intervene if it so chose.

Finally, a fairly standard ICWA notice case, where even after the following, the parents were asked in court to stipulate that this was not an ICWA case.

In this case, Father provided the name and contact information for his uncle who he believed could provide more information about the children’s grandmother who was alleged to have Cherokee ancestry. There is no evidence in the record the Agency contacted the uncle. Further, the agency did not respond to the repeated requests from the Cherokee Nation for additional information. The Agency failed to make reasonable efforts to obtain any additional family history. Under these circumstances, we find the ICWA notice was inadequate because the Cherokee Nation was deprived of a meaningful opportunity to determine if M.S., E.S., and A.S. were Indian children.

Kate Fort & Peter Vicaire on Child Welfare and American Indian Active Duty Servicemembers and Veterans

Matthew L.M. Fletcher1 Comment

Kathryn E. Fort and Peter S. Vicaire have posted “The Invisible Families: Child Welfare and American Indian Active Duty Servicemembers and Veterans,” forthcoming in the Federal Lawyer.

The abstract:

Child welfare issues as they involve Native military families are rarely discussed. In the recent case of Adoptive Couple v. Baby Girl, the Supreme Court erased them entirely. The federal government, tribes and states can address issues affecting Native military families in a number of ways discussed in this article, including:

• Kinship placement in contested adoptions put on hold due to deployment;

• Ensuring Memorandums of Understanding between military bases and states include reference to the Indian Child Welfare Act (ICWA);

• Identifying and educating attorneys — including Judge Advocates — on both ICWA and the Servicemembers Civil Relief Act;

• Training Veteran Treatment Court judges on issues specific to Native veterans;

• Modeling specialized state Indian Child Welfare Act dockets on Veteran Treatment Courts;

• Opening conversations between child welfare courts and veterans courts, and assigning one judge per family;

• Encouraging the development of tribal court veterans treatment dockets and engaging with the Veterans Administration (VA) through Veteran Justice Outreach Specialists (VJOs)