Child Welfare

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.

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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.

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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.

Federal Court Finds No Jurisdiction for Itself in Tribal Guardianship Proceeding

Kate Fort2 Comments

Here.

Section 1914 does not confer jurisdiction upon this court because the guardianship action at issue here was not decided under State law. Rather, Plaintiff is challenging an Indian tribal court’s decision to place an Indian child in foster care. Plaintiff does not allege that the tribal court lacked jurisdiction to make a custody determination or otherwise violated his due process or equal protection rights; rather, he merely alleges that its decision violated the Indian Child Welfare Act. However, the Indian Child Welfare Act, 25 U.S.C. §§ 1901-1963, gives Indian tribes jurisdiction to determine custody of Indian children. See DeMent v. Oglala Sioux Tribal Court, 874 F.2d 510, 514 (8th Cir. 1989). The Indian Child Welfare Act does not confer jurisdiction upon this court to review the propriety of the tribal court’s guardianship decision in this case.

Alaska AG Withdraws 2004 AG Opinion on Tribal Court Jurisdiction that Conflicted with Alaska SCT Precedent

Matthew L.M. Fletcher

Here is the letter withdrawing “Jurisdiction of State and Tribal Courts in Child Protection Matters,” 2004 Op. Att’y Gen. No. 1:

2014-001_APR2014

The 2004 opinion is here (PDF).

The relevant Alaska precedent — State v. Native Village of Tanana, 249 P.3d 734 — is here:

State v. Native Village of Tanana

Casey Family Programs Job Posting: Senior Director, Indian Child Welfare

Matthew L.M. Fletcher

Casey Family Programs has posted the position of Senior Director Indian Child Welfare. To apply for these position, please visit:

Senior Director Indian Child Welfare – HT10754<http://www.recruitingcenter.net/clients/casey/publicjobs/controller.cfm?jbaction=JobProfile&job_id=10754>

http://www.recruitingcenter.net/clients/casey/publicjobs

Casey Family Programs, an Equal Opportunity Employer, is a national operating foundation that provides and improves—and ultimately prevents the need for—foster care. We value a diverse and culturally competent workplace.

Job Summary:

The Senior Director of Indian Child Welfare Consulting is a national expert providing leadership to Casey, Tribes, and States regarding child welfare systems for Indian Child Welfare programs. Continue reading →

Florida Appeals Court Strips Miccosukee Tribal Court of Jurisdiction in UCCJEA Matter

Matthew L.M. Fletcher

Here is the opinion in Billie v. Stier:

Fla Ct App Opinion

An excerpt:

This Petition for a Writ of Prohibition evolves out of a custody dispute between the mother, who is a member of the Miccosukee Tribe of Indians, and the father, who is not a member  of the tribe of Native American heritage. The issue is whether the Miccosukee Tribal Court or the Circuit Court of the Eleventh Judicial Circuit has the jurisdiction to decide the custody dispute. The mother petitions for a writ prohibiting the Circuit Court from exercising jurisdiction over the custody matter. Based on the facts of this case and the Uniform Child Custody, Jurisdiction, and Enforcement Act (“UCCJEA”), we conclude that the Circuit Court was correct in determining that it, and not the Tribal Court, has  jurisdiction to decide the custody issues and we therefore deny the petition.