Child Welfare

Conditionally Reversed for ICWA Notice Case out of Michigan

Kate Fort1 Comment

Here.

It is clear from the record that the trial court had information, however slight, “suggesting that [a] child, a parent of [a] child, or members of a parent’s family are tribal members,” which was one of the five situations the Supreme Court listed as “sufficient to trigger tribal notice.” In re Morris, 491 Mich at 108 n 18. Specifically, respondent’s attorney informed the court that “there might be some [Indian ancestry] on the grandmother’s side.” Because it is for the tribes to determine a child’s eligibility for membership, In re Fried, 266 Mich App 535, 540; 702 NW2d 192 (2005), the trial court clearly erred when it found that the possibility of Indian heritage in a great-grandmother of one or more of the minor children was too remote to justify the notice required by the ICWA and MCL 712B.9(1).

Letter From National Native Groups to DOJ to Investigate Child Welfare Issues

Kate Fort

Here, from NICWA, NCAI, NARF, and AAIA:

The undersigned American Indian and Alaska Native (AI/AN) organizations request that the Civil
Rights Division of the Department of Justice commences a prompt investigation into the unlawful treatment of
AI/AN children in the private adoption and public child welfare systems throughout the United States.

***

Yet, despite all the protections provided by ICWA, each year thousands of parents, grandparents, aunties,
uncles, and child advocates reach out to the National Indian Child Welfare Association (NICWA) desperate for
help. Their rights under ICWA and the Constitution continue to be violated by state child welfare and private
adoption systems. NICWA frequently hears stories of adoption agencies ignoring the tribal membership of
children, of state attorneys failing to provide notice to a tribe when a child is taken into custody, of child
welfare workers sometimes knowingly placing children outside ICWA’s placement preferences, and of judges
denying tribal representatives a presence in the court room. NICWA also often hears stories of Guardians ad
Litem scoffing at the importance of Native culture, state workers demeaning AI/AN parents and traditional
ways of parenting, and attorneys using professional networks to encourage other attorneys to purposefully
circumvent the “ridiculous” or “unnecessary” adoption requirements of ICWA.

Michigan COA Unpublished Decision on ICWA Notice

Kate Fort1 Comment

Here.

Here, respondent-father indicated to the referee that his great-grandmother was a member of the “Blackfoot” tribe. Although petitioner argues that there is no such tribe as “Blackfoot,” the BIA’s list of federally recognized Indian tribes includes “the Blackfeet Tribe of the Blackfeet Indian Reservation of Montana.” See http://www.ncsl.org/research/state-tribal-institute/list-of- federal-and-state-recognized-tribes.aspx (last visited December 30, 2013).    Respondent-father points out that the name “Blackfoot” was used by the federal government in the Treaty with the Blackfeet of 1855, which recognized the existence of a Blackfoot Tribe and Blackfoot Nation. See Treaty with the Blackfeet, 11 Stat 657 (October 17, 1855). Thus, mindful of our Supreme Court’s statement that “[i]f there must be error in determining whether tribal notice is required, let it be on the side of caution[,]” Morris, 491 Mich at 108, we hold that respondent-father provided sufficient indicia of Indian heritage to the trial court to require tribal notice. If the identity of the tribe is uncertain, 25 USC § 1912(a) allows notice to be given to the Secretary of the Interior. Here, the record does not indicate that any notice was given.

***

We therefore conditionally reverse the trial court’s termination of respondent-father’s parental rights, and remand to the trial court for resolution of the notice issue. On remand, the trial court shall ensure that notice is properly made to the appropriate entities. If the children are not Indian children or the properly noticed tribes or government entities do not respond within the allotted time, the trial court’s termination of respondent-father’s parental rights is reinstated. If, however, the trial court concludes that the ICWA does apply to the proceedings, the trial court’s termination of respondent-father’s parental rights to his four children must be vacated and proceedings begun anew in compliance with the procedural and substantive requirements of the ICWA.

A Particularly Troubling Unpublished Notice Case from California

Kate Fort

More than the usual troubling CA notice cases, that is. Particularly the part about not having to do *any* notice, regardless of the court’s confusion about the history and location of the Pascua Yaqui Tribe.

Here.

The social worker reported Audrey said her father, Luis H., has some Yaqui Indian heritage, but she had not spoken with him and did not have sufficient information to fill out the form. When the social worker telephoned Luis, he said his mother was born in Sonora, Mexico,and  mother’s father was Yaqui. He said he did not know if any family member was registered with a tribe, but reported no family member practiced any tribal customs.

***

At the contested jurisdictional/dispositional hearing on July 30, Audrey again indicated her only potential Indian heritage was from the Yaqui Tribe in Mexico. County Counsel said as a precautionary measure the Agency would provide ICWA notice to the Yaqui Tribe in the United States and, on August 1, it sent notice to the Pascua Yaqui Tribe in Arizona. The court, however, found ICWA notice was not required because there was no reason to believe Mason is an Indian child in that Audrey had indicated her only potential Indian heritage is through the Mexican Yaqui Tribe, and the Mexican Yaqui Tribe is not a federally recognized tribe governed by ICWA.

North Dakota Supreme Court Decides Child Support Jurisdiction Case

Kate Fort

Here.

[¶15] B.B. argues that because custody has already been determined in the tribal court, the tribe has continuing and exclusive jurisdiction over paternity and support.

[¶16] We specifically held in Kelly, 2009 ND 20, ¶ 22, 759 N.W.2d 721, that custody can be bifurcated from other proceedings in marriage. “Thus, even if the district court determines that the reservation is the child’s home state and that the tribal court therefore has jurisdiction over child custody, the district court retains concurrent jurisdiction over the remaining incidents of the marriage and may choose to exercise that jurisdiction . . . .” Id. Although B.B. and A.T.H. never married, the bifurcation principle of Kelly nevertheless applies in this case because multiple parties and jurisdictions are involved and each has an interest in the outcome of the proceedings. We conclude that under Kelly, the paternity and support claims brought against B.B. in state court can be bifurcated from the custody action brought in Standing Rock Sioux Tribal Court.

[¶17] Recognizing that paternity and support claims are divisible from custody determinations, and in view of the factual similarities between this case and Doe, we conclude the state court has subject matter jurisdiction in this case.

Order To Produce Documents in Fontaine v. Canada (St. Anne’s Residential School Case)

Kate Fort1 Comment

Here.

Via Jody Porter (@cbcreporter)

Oregon Court of Appeals Applies ICWA to Guardianships

Kate Fort1 Comment

But does not require contemporaneous active efforts when ordering one.

Here is the opinion.

Given our conclusion that the guardianship was a “foster care placement”  under ICWA, we now consider whether the juvenile court was required under ICWA to make an “active efforts” finding at the proceeding in which that guardianship was  established. Mother argues that, because the guardianship is a foster care placement, the  juvenile court was required to include an active efforts finding in the guardianship  judgment. Although we disagree with DHS’s argument that the guardianship was not a  “foster care placement,” we conclude nonetheless that DHS satisfied ICWA’s “active  efforts” requirement at the 2011 permanency hearing. Therefore, the juvenile court was  not required to make an “active efforts” finding in the guardianship judgment.

AALS Hot Topics Session on Adoptive Couple v. Baby Girl

Matthew L.M. Fletcher

Bethany Berger, our own Kate Fort, and Solangel Maldonado

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ICWA Transfer Case Out of Nebraska

Kate Fort

Here.

We conclude that Cameron and Amanda failed to timely
appeal from the orders denying the motions to transfer the cases to tribal court. As such, this court is without jurisdiction to address Cameron and Amanda’s argument that the juvenile court erred in that respect. Upon our de novo review, we find that the State presented clear and convincing evidence that termination of Cameron’s and Amanda’s parental rights to S, L, H, and J was in the children’s best interests. Accordingly, we affirm the orders of the juvenile court.

Oklahoma ICWA Interpretation Case: In re T.S.

Kate Fort2 Comments

We posted recently about the Supreme Court’s contempt for Congress. In this case that looks like an active efforts case, but turns into a long opinion interpreting many provisions of ICWA (active efforts, foster care placement, emergency removal) out of Oklahoma, it appears this contempt isn’t limited to the Supreme Court. This could be particularly harmful in ICWA cases. Opinion here.

From the trial court regarding active efforts in foster care placement:

The juvenile court announced his conclusion of ′′a lack of congressional intent in seeking foster care placement that active efforts have been proven unsuccessful. I think that was meant just for termination of parental rights proceeding.′′ Commenting ′′other courts have attempted to make rather constrained ways of finding active efforts have been met,′′ the court found ′′there has been offering of parenting classes to Father, even the placement of these children with their mothers is certainly an attempt to prevent the breakup of the Indian family, although they are not in [Father’s] care and he can’t have them returned to him on his demand.′′ After he acknowledged the opinion testimony of the qualified expert witness, Ms. Watashe, that ′′[active efforts] don’t apply but they have been met,′′ the court found ′′those things allow the Court to go forward with a finding that active efforts have been met here. I don’t find that they’ve been proven unsuccessful, but I don’t know how they could be at this stage. Again poor wording by Congress. Take that up.′

Footnote 10

And a troubling use of Baby Girl from the Oklahoma Appellate Court (this is a case where the children were with father, and removed on an abuse charge. NOT the fact pattern of Baby Girl):

Our decision to affirm is supported by the U.S. Supreme Court’s recent interpretation of ¶ 1912(d) in an adoption proceeding opposed by the Indian child’s biological father, a member of the Cherokee Nation who was never married to the child’s mother. See Adoptive Couple v. Baby Girl, 133 S.Ct. 2552, 2562- 2563 (June 25, 2013). In pertinent part, a majority of
the U.S. Supreme Court interpreted ¶ 1912(d) to apply ′′only in cases where an Indian family’s ′′breakup′′ would be precipitated by the termination of the parent’s rights,′′ and found such interpretation was confirmed by ¶ 1912(d)’s ′′placement next to ¶ 1912(e) and ¶ 1912(f), both of which condition the outcome of proceed- ings on the merits of an Indian child’s ’continued cus- tody’ with his parent.′′ (Emphasis added.) Id. Construing these adjacent provisions together, the Court further found:
None of the provisions create parental rights for unwed fathers where no such rights would otherwise exist. Instead, Indian parents who are already part of an ′′Indian family′′ are provided with access to ′′remedial services and rehabilitative programs′′ under ¶ 1912(d) so that their ′′custody′′ might be ′′continued′′ in a way that avoids foster-care placement under ¶ 1912(e) or termination of parental rights under ¶ [**59] 1912(f). In other words, the provision of ′′remedial services and rehabilitative programs′′ under ¶ 1912(d) supports the ′′continued custody′′ that is protected by ¶ 1912(e) and ¶ 1912(f). (Emphasis added; citation and footnote omitted.)
In this contested deprived child proceeding subject to ICWA, even if State had provided Father access to the specific services and programs after the show cause hearing and he had successfully commenced those programs, foster care placement could not have been avoided in light of the clear and convincing evidence supporting the juvenile court’s ¶ 1912(e)’s finding, i.e. at this stage of the proceeding Father’s continued custody was likely to result in serious emotional or physical damage to the children.