Here is the unpublished, per curiam opinion.
Michigan COA Decides ICWA Active Efforts/Expert Witness Case
Here is the unpublished, per curiam opinion.
ICWA
ICWA, California, and “Family Lore”
A new phrase caught our eye while researching California notice cases for 2011 (far fewer than back in 2007, strangely enough, and far fewer ICWA cases nationwide). However, so far in 2011, the phrase “family lore” has popped up three times in ICWA cases in California cases. It cropped up twice (in the same unpublished case) in 2010, but not once from 2000-2009. And in case you were wondering, there have been 37 cases remanded for ICWA notice compliance so far this year in California. All three cases this year come out of the 2nd Appellate District, and have different judges. However, because they are all out of the same lower court (Superior Court of L.A. County), they share the same County counsel and Assistant County counsel (chief of the Dependency division), though each had different Principle Deputy County counsels. The phrase seems to be coming out of the juvenile court record in each case.
Here are the cases and how “family lore” is used:
In re Jeremiah L.
2011 WL 3964653 (Cal.App. 2 Dist. Sept. 9, 2011)
Father appealed whether the court had reason to know ICWA should apply. The court rejected his argument.
The Department was ordered to contact maternal great-grandmother on maternal grandfather’s side for further information. The court stated, ‘At this time the court has no reason to know that the children would fall under the Indian Child Welfare Act. It sounds like family lore at this point.’ *8
and,
The suggestion that maternal great great-grandmother was part Cherokee came from maternal grandfather, who was told this by maternal great-grandfather and maternal great great-grandmother. Maternal grandfather stated he would find out from maternal great-grandmother if there was further information. In these circumstances, the fact he did not make himself available to the social worker for a follow-up interview reasonably indicated that the story of Indian ancestry was nothing more than unfounded ‘family lore.’ *9
In re Hunter W.
2011 WL 3806151 (Cal.App. 2 Dist. Aug. 30, 2011)
The mother appealed claiming ICWA applied. The court rejected her argument.
The court held that it ‘does not believe that family lore, pursuant to case law, is reason to know a child would fall under [ICWA],’ and no notice need be given to any tribe or to the Bureau of Indian Affairs. The court ordered the parents to ‘keep [DCFS], their attorney, and the court aware of any new information relating to possible ICWA status.'” *9
and
However, as we have discussed, the court also concluded mother’s claim of Indian heritage through her father was too speculative to begin with, ruling that ‘[t]he court does not believe that family lore … is reason to know a child would fall under [ICWA].’ We conclude that this is an independent and valid reason for the court to find that ICWA did not apply. *10
In re Christina W.
2011 WL 635869 (Cal.App. 2 Dist. Feb. 23, 2011)
Mother and father appealed lack of notice for ICWA. Court reversed and remanded on the issue of notice (“Although the Father has not provided detailed information, his claim of Cherokee or Lakota ancestry was enough to satisfy the ‘minimal showing required to trigger the statutory notice provisions.'” *18). This case also includes some of the juvenile court transcript.
‘Pursuant to 224.3, relative membership which is remote or family lore without any reason or family lore without any recent identification with any tribe is not reason to know. The court is finding, based upon this information that the court does not have, at this particular point, any reason to know that the [ICWA] is involved.’ *14 (quoting the juvenile court)
[California Welfare & Institutions Code 224.3 makes no reference to family lore nor to the remoteness of the relationship as a reason NOT to know an Indian child is involved].
In re J.T.
2010 WL 2505639 (Cal.App. 4 Dist. June 22, 2010)
Father appealed lack of inquiry to determine if ICWA applied. Court rejected the appeal.
Here, mother was asked about possible Indian ancestry, in both the current and prior cases, and denied it. Consequently, if she later discovered that family lore indicates Indian ancestry, or if she had previously known it but had chosen not to disclose it, it was up to her to disclose that information to the court or to the department in order to trigger a duty either to make further inquiry or to give notice. Such information was exclusively within her knowledge, and its disclosure was wholly within her control. (See ibid.) *7.
Judges Petoskey, Thorne and Pouley Discuss ICWA and Tribal Jurisdicion
The Center for Court Innovation recently posted this podcast.
Theresa Pouley, chief judge of the Tulalip Tribal Court in Washington State, Michael Petoskey, chief judge of the Pokagan Band of Potawatomi Indians in Michigan, and William A. Thorne Jr., a Pomo/Coast Miwok Indian appointed to the Utah Court of Appeals, discuss misconceptions about the Indian Child Welfare Act and the advantages of transferring child welfare cases from state to tribal jurisdiction. This is one of three podcasts produced in collaboration with the National Council of Juvenile and Family Court Judges. (July 2011)
Thanks to E.P. for sending it our way.
Pigott v. Nochasak: Providing Language and Culture to an Inuit Child
Here’s a very interesting child custody case out of the Newfoundland and Labrador Supreme Court that might rankle some ICWA aficionados.
Pigott v. Nochasak involves a non-Inuit father and an Inuit mother. However, both parents speak Inukitut fluently and the non-Inuit father has a Master’s degree focusing on the language. He also engaged in writing an Inukitut dictionary. After the parents were separated and joint custody was awarded, the mother left home and attended school in Halifax and Ottawa and often spoke to the child in English, while the (non-Inuit) father remained in Newfoundland and spoke to her solely in Inukitut.
Both parents claimed they would be a better provider of Inuit cultural interests. The judge granted sole custody to the…
Michigan Supreme Court Remands for ICWA Notice Error
The short order is here. Thanks to C.F.
Minnesota Supreme Court ICWA Case–In re R.S. and L.S.
The Center wrote an amici brief for this case on behalf of the Center, Leech Lake and Mille Lacs. Our discussion of the role of the GAL is in the second half of the brief.
Amici Brief for ILPC, Leech Lake and Mille Lacs
Lower court decision in the case:
ILPC Event: Prof. Atwood on ICWA, March 24th
Please join us for our third event in our Spring Speakers Series, a discussion with Prof. Barbara Atwood, author of Children, Tribes and States: Adoptions and Custody Conflicts Over American Indian Children. The Honorable Michael Petoskey and the Honorable Timothy Connors will be commenting on the book. The event will start at 11am with lunch in the Castle Board Room, and end by 1pm. No registration is necessary.
Lee Opinion from the Michigan Supreme Court
The Michigan Supreme Court upheld the lower court terminating the parental rights of Cheryl Lee, stating that there had been sufficient active efforts. However, the Court did explicitly state that the AFSA does not supersede or relieve the State from providing active efforts.
Unfortunately, the Court also held that:
In this case, however, the fundamental disagreement is not about the nature
of the required services, but about the timing of those services. Indeed, respondent acknowledges that the DHS and the tribe provided active efforts in the past, but argues that 25 USC 1912(d) requires current active efforts, which the DHS failed to provide because it did not offer services in connection with the termination of her parental rights to JL. We decline to read the word “current” into 25 USC 1912(d). This statutory language does not impose a strict temporal component for the “active efforts” requirement.
and:
Similarly, we decline to hold that active efforts must always have been provided in relation to the child who is the subject of the current termination proceeding. Again, the question is whether the efforts made and the services provided in connection with the parent’s other children are relevant to the parent’s current situation and abilities so that they permit a current assessment of parental fitness as it pertains to the child who is the subject of the current proceeding. The evidence must satisfy the court “beyond a reasonable doubt” that the parent’s continued custody of that child “is likely to result in serious emotional or physical damage to the child,” as required by 25 USC 1912(f).
Published Active Efforts Case in California
This question was debated often in my ICWA class this year–what would active efforts consist of for a sex offender and/or pedophile parent (father, in this case)? The California Court of Appeals, 4th district, held there are none required:
Nevertheless, his history clearly demonstrates the futility of offering reunification services: He is a registered sex offender with a prior conviction for lewd and lascivious acts on a child under the age of 14. . . . The parents do not suggest any services which might have been offered to the father under the circumstances and we cannot conceive of any services which could usefully be offered to a registered sex offender with a prior conviction for molesting a child and a current finding of molesting a different child. For these reasons, requiring the court to provide services to the father would be at best an idle act which would not further the legislative purposes of ICWA.
While this quote is from the section of the case discussing active efforts prior to removal to foster care, the court came to the same conclusion for active efforts prior to termination.
Oddly, the court is also confused as to whether the father is Cherokee or Choctaw, using them interchangeably at one point.
In re Lee Oral Argument
The Michigan Supreme Court heard the oral argument today in the In re Lee case, which we’ve referenced before. The case involves both the issue of active efforts and the beyond a reasonable doubt standard required by the Indian Child Welfare Act. Specifically the Court asked whether active efforts have to be recent and for each individual Indian child and whether the beyond a reasonable doubt standard required contemporaneous evidence of the emotional or physical harm to the child if he remains with his parent. Both the American Indian Law Section and the Children’s Law Section of the Michigan bar filed amicus briefs in the case.
Turtle Talk 
You must be logged in to post a comment.