Child Welfare

Michigan Foster Care Review Board Annual Report Addresses Areas of “Significant Concern” Relating to LGALs

Kate Fort

Report here(pdf). LGAL portion starts on page 15.

In spite of such improvements, the quality of representation reported to and observed by our citizen review board members remains less than adequate, at best, and possibly fraudulent at times.
The FCRB is highly concerned with the fact that in Michigan, children and youth are rarely encouraged to participate in scheduled court hearings, despite the fact that these children are identified as parties to the case. This is unfortunate, as their present and future safety and well-being is addressed at these hearings, and the children often know best what has taken place in their own families and whether the system is functioning well for them or not. Therefore, the need to provide competent and dedicated legal representation is essential, as the LGAL is the one entrusted with the responsibility of objectively representing the child’s views and best interests before the court.

 

California Appeals Court Finds Court Rules about Indian Children Inconsistent with Legislative Intent

Kate Fort

Decision (a rare published ICWA decision for CA).

The children were eligible for membership at Cherokee Nation of Oklahoma. The trial court ordered DHHS to help enroll the children as active efforts. DHHS appealed. The appellate court found that both ICWA and California state law limited the definition of Indian child (member, or bio child of a member and eligible), and if the children did not fit in that definition, the laws did not apply. As such, the rules were beyond the scope of the Judicial Counsel to pass.

The rules:

Rule 5.482(c) states, “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 5.484(c) states, “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, in any proceeding listed in rule 5.480, to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family, and must find that these efforts were unsuccessful.
“(1) The court must consider whether active efforts were made in a manner consistent with the prevailing social and cultural conditions and way of life of the Indian child’s tribe.

(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.”

 

NCJFCJ Disproportionality Report of Children in Foster Care for FY 2012

Kate Fort

Page 9 of the report has Native American Disproportionality Rates by State. 21 states have overrepresentation of Native kids in care, including Michigan (1.3, and 1.9 in entries to care), Wisconsin (4.1), Minnesota (13.9)and Iowa (4.5). Michigan, Wisconsin, and Minnesota have worse numbers than 10 years ago (page 3).

Report Disproportionality Rates for Children of Color in Foster Care for Fiscal Year 2012 (pdf). Website here.

As a side note, anytime anyone would like to talk about what they think is happening in Illinois/Chicago (no disproportionality shown, almost no ICWA cases pop up on appeal, but with a large urban Native population), we are all ears.

 

NCJFCJ 77th Annual Conference, July 13-16, 2014

Victoria Sweet

Join us in Chicago, Illinois for this year’s 77th Annual Conference featuring a wide range of juvenile and family law topics including child abuse and neglect, trauma, custody and visitation, judicial leadership, juvenile justice, sex trafficking of minors, family violence, drug courts, psychotropic medications, children testifying in court, detention alternatives, substance abuse, and the adolescent brain.

In addition, this year we are offering a preconference workshop, Special Consideration for Working with Adolescents with Substance Abuse Issues, designed for professionals working with juvenile justice involved youth who also have mental health, substance abuse, or trauma issues. Any juvenile court judges, juvenile drug court coordinators, attorneys, probation officers, case managers, and substance abuse treatment counselors are encouraged to attend.

Information available here.

Michigan Court of Appeals Opinion on MIFPA and ICWA Notice

Kate Fort1 Comment

The Michigan COA interpreted In re Morris to require a conditional reversal when the parent asserted that his grandmothers were Native and:

It is unclear from the record exactly how or why the caseworker came to the conclusion, reflected in the case service plans, that the minor child is not an Indian child for purposes of 25 USC 1912(a); some elaboration would have been appropriate given the father’s assertion. There is no indication that an inquiry or investigation was made specifically with respect to the father’s claim made at the preliminary hearing, nor an explanation in regard to why the father’s claim was being discounted, assuming it was evaluated or pondered in the first place, such that the ICWA notice requirement was not triggered. Of special concern to us is that the initial case service plan, in its summarization of the trial court’s preliminary hearing order, made no mention of the court’s command that the caseworker “make necessary inquiry and/or notification as to possible Native American Indian heritage.” Furthermore, there is no clear confirmation by the court itself that its initial concerns of whether the child is an Indian child were alleviated. Moreover, the father’s assertion concerning the Native American heritage of the minor child’s paternal great-grandparents fits within the parameters of the examples given by the Morris Court, quoted above, that would trigger the need to serve notice. Morris, 491 Mich at 108 n 18. Finally, petitioner itself concedes that conditional reversal is necessary in order to determine whether the minor child is an Indian child under the law.

Opinion here.

Michigan Supreme Court Rejects One Parent Doctrine as Unconstitutional

Kate Fort1 Comment

This case will have broad ramifications for child welfare cases. This is a huge victory for parents and families. While not mentioned in this opinion, this case was also an ICWA case.

Opinion, written by Justice McCormack, here.

At issue in this case is the constitutionality of Michigan’s one-parent doctrine. The one-parent doctrine permits a court to interfere with a parent’s right to direct the care, custody, and control of the children solely because the other parent is unfit, without any determination that he or she is also unfit. In other words, the one-parent doctrine essentially imposes joint and several liability on both parents, potentially divesting either of custody, on the basis of the unfitness of one. Merely describing the doctrine foreshadows its constitutional weakness.

***

Because the jurisdictional inquiry is focused on the child, once there has been an adjudication, either by trial or by plea, the court has jurisdiction over the child regardless of whether one or both parents have been adjudicated unfit. MCL 712A.2(b). In cases in which jurisdiction has been established by adjudication of only one parent, the one-parent doctrine allows the court to then enter dispositional orders affecting the parental rights of both parents.

***

Because application of the one-parent doctrine impermissibly infringes the fundamental rights of unadjudicated parents without providing adequate process, we hold that it is unconstitutional under the Due Process Clause of the Fourteenth Amendment.

Michigan Race Equity Commission Releases Report on Child Welfare

Kate Fort

Here is the news article.

Report here.

• Minority kids were 2.1 times more likely to age out of foster care than white children. Hispanic kids were 1.1 times more likely, American Indian 1.4 times more likely and black children 2.3 times more likely to age out of the system.

White Earth Nation Taking over Human Services Cases from Surrounding Counties

Victoria Sweet

In 2011, the Minnesota legislature authorized White Earth to take over all human services programs for tribal members and families in surrounding counties.

Bill text here.

With more tribes looking at options to provide more services for tribal members residing off reservations, it will be interesting to see how this implementation process will work for White Earth.

News coverage on the transfer here.

Before the transfer began, White Earth was offering some human services programs, including tribal child care assistance, child welfare programs, disability waivered services and food distribution programs.

However, people also qualified for several other programs that only the counties offered.

That meant a lot of back and forth and confusion for recipients who were juggling programs from different agencies.

The complete transfer – the first of its kind in Minnesota – will mean people will have their cases streamlined into one place where they can receive all benefits together.

Document with the transfer proposal for Mahnomen county cases here.

H/T to Adrea Korthase!

Comments on the BIA Guidelines from AAIA, NICWA, NARF, NCAI, and Indian Law Professors

Kate Fort1 Comment

The comments are in response to the Dear Tribal Leader letter we posted about here.

Here from AAIA, NICWA, NARF, NCAI

Here from Indian law professors.

Here from Craig Dorsay.

News Article on Oglala Sioux Tribe v. Van Hunnik

Kate Fort

Here.

While written court orders are obviously important, court transcripts reflect far more what it is like to be a parent in a fast and confusing hearing about your children. Also makes for a strong argument for these to be public hearings rather than confidential ones. It’s far from a complete solution, but sunshine usually helps more than it hurts.