ICWA

Yet Another Michigan Conditional Affirmation ICWA Case

Kate Fort6 Comments

In re King/Little, here.

From the opinion:

Petitioner responds to this issue by stating that, after respondent signed the form indicating that the children were eligible for membership in the Cherokee Tribe, it did comply with the requirements of the ICWA by sending the proper notice to both the Cherokee Boys Club and the Cherokee Nation. Petitioner contends it received responses from both organizations indicating that the children were not considered “Indian” in the Cherokee Nation and were not eligible for membership. Petitioner further contends that all the proper paperwork is on file at the Office of the Prosecuting Attorney and the Department of Human Services and invites this Court to view the failure to place this information on the trial court record as harmless error. However, we may not expand the record on appeal. MCR 7.210(A)(1).

Cherokee Boys Club?!? After all these years, how many different ways can DHS mess up notice and still defend their practice? There are only three federally recognized Cherokee tribes, and not one of them is the Cherokee Boys Club.

Michigan COA Issues Another Condition Remand in an ICWA Notice Case

Matthew L.M. Fletcher

Here, In re King/Little.

Utah Appellate Court Decides ICWA Case

Matthew L.M. Fletcher

Here is the as-yet unpublished opinion in In re M.J.

An excerpt:

A.J. and J.J. (Mother and Father, respectively) appeal the juvenile court’s order terminating their parental rights in M.J. and S.J. (the Children). On appeal, Mother and Father argue that the juvenile court erred in determining that it did not have “reason to know” that the Children were Indian children under the Indian Child Welfare Act (ICWA), 15 U.S.C. §§ 1901–63 (2006), and that ICWA, therefore, did not apply in this case; that the evidence was insufficient to justify termination of their parental rights; and that the juvenile court committed plain error by failing to follow the proper procedure when ordering the Children to be removed. We affirm.

Another Conditional Affirmance in an ICWA Case in Michigan

Matthew L.M. Fletcher

Here is the unpublished opinion in In re Whisler.

News Coverage of Minn. SCT Decision in In re R.S.

Matthew L.M. Fletcher

Here, via the North Dakota Supreme Court website (and the Grand Forks Herald).

NPR: Part 2 of ICWA Series–“Tribes Question Foster Group’s Power and Influence”

Matthew L.M. Fletcher

Here.

Minnesota Supreme Court Releases In re R.S.

Matthew L.M. Fletcher1 Comment

Here is the opinion:

Opinion – Published

The court’s syllabus:

1. The plain language of 25 U.S.C. § 1911(b) (2006) is not ambiguous and, with respect to an Indian child not residing or domiciled within the child’s tribe’s reservation, permits transfer to tribal court of only foster care placement and termination of parental rights proceedings.

2. The provision of the 2007 Tribal/State Agreement requiring transfer of “any child placement/custody proceedings” is void to the extent that it purports to require transfer of preadoptive and adoptive placement proceedings involving an Indian child not residing or domiciled on the reservation of the child’s tribe.

3. With respect to an Indian child not residing or domiciled on the child’s tribe’s reservation, Rule 48 of the Minnesota Rules of Juvenile Protection Procedure, providing for transfer of “the juvenile protection matter” to the tribal court of an Indian child’s tribe, is limited to foster care placement and termination of parental rights proceedings.

Reversed and remanded.

A link to streaming video of the oral argument.

Here is our posting on our amicus brief and the lower court decision.

Part One of Three Part NPR Investigation in ICWA Compliance

Matthew L.M. Fletcher6 Comments

Utterly devastating.

Here. An excerpt:

Key Findings Of This Investigation

* Each year, South Dakota removes an average of 700 Native American children from their homes. Indian children are less than 15 percent of state’s the child population, but make up more than half the children in foster care.

* Despite the Indian Child Welfare Act, which says Native American children must be placed with their family members, relatives, their tribes or other Native Americans, native children are more than twice as likely to be sent to foster care as children of other races, even in similar circumstances.

* Nearly 90 percent of Native American children sent to foster care in South Dakota are placed in non-native homes or group care.

* Less than 12 percent of Native American children in South Dakota foster care had been physically or sexually abused in their homes, below the national average. The state says parents have “neglected” their children, a subjective term. But tribe leaders tell NPR what social workers call neglect is often poverty; and sometimes native tradition.

* A close review of South Dakota’s budget shows that they receive almost $100 million a year to subsidize its foster care program.

Derrin Yellow Robe, 3, stands in his great-grandparents' back yard on the Crow Creek Reservation in South Dakota. Along with his twin sister and two older sisters, he was taken off the reservation by South Dakota's Department of Social Services in July of 2009 and spent a year and a half in foster care before being returned to his family.

John Poole/NPR Continue reading →

Children of Color Disproportionally in State Foster Care–New State by State Study

Matthew L.M. Fletcher

Here.

Recent Iowa COA Opinions on ICWA Expert Testimony

Matthew L.M. Fletcher

Here are the unpublished opinions in In re D.S. (here and here). Here is a description of these cases from a dedicated reader:

This decision deals with whether Expert Witness Testimony needs to “support” the overall decision of the Trial Court’s decision to terminate parental rights.  In the first decision, the Court of Appeals misunderstood the parents’ arguments on the expert witness testimony issue.  The Court thought they were claiming that no QEW testimony was provided.  On the contrary, the parents felt that there was QEW and that QEW testimony needed to support the Trial Court’s decision.  The parents stated the QEW testimony did not support the Trial Court’s decision, and thus asked for the Court of Appeals to reconsider its decision.  The second decision essentially states that there is a split on whether QEW testimony just needs to be provided or if the QEW testimony actually needs to support the Trial Court’s decision.  This appellate panel decided that QEW testimony does not need to support the overall decision.

An excerpt from the first:

Continue reading →