Please comment here by MAY 22.
Here is the proposed rule.
This is a big deal. Utah is a particularly difficult state to pro hac into–it is a multi-step, long and expensive process.
As always, the ICWA pro hac rules are updated here.
Indian Child Welfare Act
- A State ICWA law that mirrors and expands upon the federal version and that will be drafted with the Administrative Office of the Courts and with New Mexico Tribes and Pueblos
- Processes and procedures to promote traditional interventions as first-line interventions and services, developed with the input of New Mexico’s Tribes and Pueblos
- Federal funding for traditional and culturally responsive treatments, interventions, and supports, including non-medicalized interventions
- A plan to increase recruitment and retention of Native resource families
- A policy to provide or ensure provision of direct assistance for traditional ceremonies, including arranging for all preparation and providing payment if needed, if Native Children want to participate
At the detention hearing, Father said he had Native American Indian heritage, but he was unable to identify the correct tribe. Father believed his heritage was through his paternal grandmother. He provided CWS and the juvenile court with the names of his father and grandmother.
Father argues CWS failed to comply with ICWA requirements and the juvenile court did not make findings on whether ICWA applied. He contends the court was “not authorized to proceed with foster care placement until ICWA notice has been sent and received.” He is correct.
Here, CWS had reason to know the children might be Indian children. Accordingly, CWS was required to comply with ICWA notification requirements at least 10 days before the disposition hearing, because the hearing was an involuntary proceeding in which CWS “was seeking to have the temporary placement continue[d].” (Jennifer A., supra, 103 Cal.App.4th at pp. 700-701; 25 U.S.C. § 1912(a).)
This is very different from the reasoning applied by the Washington Court of Appeals here.
An example of what a mess happens when an agency proceeds on termination of parental rights before establishing tribal membership. And an answer to the question what happens to all those cases remanded for notice.
There are too many unpublished cases to post here, but this one including the following quote, which I think is important for understanding how few people in the child welfare system have a handle on ICWA’s protections, even today. I’m sure all the tribal attorneys are surprised to find out they might have to appoint a parent an attorney:
The social worker informed Mother that if she was “found to have affiliation with the tribes, she could be appointed an attorney from the tribes and placement of the children could change.”
The Tribal Justice Project Presents: Tribal Justice Symposium: Protecting Families Through Tribal Courts!
Tribal court judges, court personnel, practitioners, community members, and students are invited to attend this FREE event. Space is limited, please RSVP today!
Date: March 13, 2020
Location: UC Davis School of Law – Davis, CA
Fee: No Registration Fee
Click here to register.
For questions, please contact email@example.com.
By Austin Vance, starting on page 12, here.
You have to love a court that starts the opinion so clearly:
The federal Indian Child Welfare Act (ICWA) and the Nebraska Indian Child Welfare Act (NICWA) provide specific procedures and requirements that apply in certain proceedings involving the custody and adoption of and termination of parental rights to Native American children. This case requires us to decide whether those procedures and requirements apply in a case in which a maternal grandmother sought to establish a guardianship for an Indian child over the objection of her daughter, the child’s mother. After interpreting the relevant statutory language, we conclude that the guardianship proceeding at issue was governed by ICWA and NICWA. In addition, we find that the grandmother did not make the showing required by ICWA and NICWA. We therefore reverse the order of the county court establishing the guardianship and remand the cause with directions to vacate the guardianship, dismiss the petition, and return custody to the child’s mother.