ICWA

New Mexico Notice and Time Frame Case from Court of Appeals [ICWA]

Kate Fort

Children, Youth & Families Department v. Tanisha G. and Isaac G.

This is an interesting and remarkable case, and a way to deal with continued notice violations and delay by an agency. Here are the highlights of this disturbing case of agency overreach:

CYFD took Child, then age four, into custody on January 26, 2018, after the 12 Bernalillo County Sheriffs Office executed a warrant for Father’s arrest, leaving no caregiver in the home to care for Child.

***

Parents were served with the petition on February 6, 2018. By that time, Father  had been released from custody and the charges against him dropped; his arrest was apparently the product of mistaken identity.

Meanwhile,

In the ensuing seventy-seven days, the parties appeared for three hearings: a status conference on February 27, 2018, and two adjudicatory hearings that had been set for April 2, 2018, and April 24, 2018, respectively. The district court declined to 14 commence the adjudication on either April 2 or April 24, however, because although CYFD had mailed ICWA notices to several tribal entities on February 8, 2018, and the tribal entities had received those notices shortly thereafter, CYFD had not filed proof of service to establish receipt in the record.

On April 25, 2018, Parents filed separate motions to dismiss, arguing that 19 CYFD had failed to commence the adjudication within sixty days as required by the Abuse and Neglect Act.

THEN,

The district court heard the motions to dismiss on the morning of May 24, 6 2018, at which time CYFD orally moved for an extension of time to commence the adjudicatory hearing. The district court denied CYFD’s request, noting that the court and parties had attempted multiple times to commence the adjudication, that CYFD’s failure to comply with ICWA’s notice requirements had precluded the court from timely adjudicating the matter, that the court had reminded CYFD that the time limits were running, and that CYFD had failed to file a motion to extend the time limits when the parties were last in court.  The district court granted the Parents’ motions to dismiss the petition with prejudice.

Hours later, Father filed an emergency motion for contempt of court, stating that arrangements had been made for Child to be reunited with Parents at 11: 15 a.m., but CYFD refused to return Child. The district court conducted an emergency hearing at 3:00 p.m., during which CYFD stated that it intended to file a motion to reconsider or, alternatively, to stay the judgment. The district court admonished CYFD for keeping Child without jurisdiction and ordered reunification before 5:00 p.m. that day, which occurred. CYFD appeals the district court’s dismissal order.

The Court of Appeals upholds the lower courts dismissal and ADDS THIS:

Finally, we briefly address CYFD’s assertion that the district court “was … inexplicably dismissive of [CYFD]’s concerns for Child’s welfare, which is not only an abuse of discretion, but demonstrates a conscious disregard by the [district] court of its statutory duty to ensure that ‘a child’s health and safety shall be the paramount concern.'” Contrary to CYFD’s characterization, however, we note that the district court heard from Father’s attorney that the conditions in the home had been remedied. The guardian ad litem (GAL) reiterated that Parents’ attorneys had suggested that the home was now clean and safe for Child. The GAL stated that Child and Parents share a strong bond and that Child was suffering from anxiety due to his separation from Parents. The GAL believed it was safe to return Child to  Parents. Moreover, the criminal allegations against Father, which had brought Child into CYFD’s custody in the first place, were a product of mistaken identity and had been dismissed months earlier. Based upon this testimony, we disagree with CYFD’s characterization that the district court disregarded Child’s health and safety.

Qualified Expert Witness Case out of Alaska Supreme Court [ICWA]

Kate Fort

Here

I have been trying to figure out how to comment on this particular opinion, though I may just default to Alaska’s QEW holdings have always been outliers . . .

So as a reminder for us all, this is how the Minnesota Supreme Court described the purpose of the QEW:

The third clause—“including testimony of qualified expert witnesses”—further identifies what must be included as part of the court’s “beyond a reasonable doubt” determination. Id.; see also Larson v. State, 790 N.W.2d 700, 705 (Minn. 2010) (“[A] limiting phrase . . . ordinarily modifies only the noun or phrase that it immediately follows.”). The clause provides that testimony from a QEW must support the court’s serious-damage determination. But this testimony need not stand alone. The statute provides that the court’s serious-damage determination must be supported by evidence “including testimony of qualified expert witnesses.” 25 U.S.C. § 1912(f) (emphasis added). “Include” means “[t]o contain as a part of something.” Include, Black’s Law Dictionary (10th ed. 2014) (emphasis added). So long as the QEW testimony supports the district court’s serious-damage determination, section 1912(f) has been satisfied. In other words, the court may pair the required QEW testimony with other supporting evidence to make its serious-damage determination.

The Alaska Supreme Court is now interpreting the regulations to mean

. . . the primary consideration in determining whether an expert is qualified under ICWA is the expert’s ability to speak to the likelihood of harm to the child if returned to the parent’s custody; knowledge of tribal customs and standards is preferred, but such knowledge alone is insufficient. The experts in Oliver’s and Lisa’s cases, despite their extensive knowledge of tribal cultural standards, do not meet this requirement.

Therefore,

As a tribal elder and leader of his community, Encelewski is clearly qualified to testify to tribal cultural standards and childrearing norms. But nothing in the record shows he has sufficient knowledge, either through his experience on the ICWA committee or from formal training, to discuss specifically how Oliver’s conduct or the conditions in his home were likely to result in serious physical or emotional harm to the child if returned to his care. There is no evidence that the source of Encelewski’s conclusion that Oliver’s behavior would likely harm the child is based on anything other than Encelewski’s extensive life experience as a community leader and grandfather. This is insufficient to qualify him to testify about the likelihood of harm if the child is returned to Oliver. To meet the ICWA standards, Encelewski — as the sole expert testifying in support of terminating Oliver’s parental rights — must have been qualified to testify about that causal relationship; nothing in his testimony supports such a qualification.

Among other things, I believe this means that most QEW trainings for Alaska are going to need to fundamentally change to address this holding, especially for tribes using leaders or child welfare committee members as their QEWs.

Time Magazine on ICWA

Kate Fort

Here

The first four paragraphs of the story:

Each time Elisia Manuel sees her daughter Precious rehearsing traditional basket dancing and humming tribal songs around their home in Casa Grande, Arizona, she’s overwhelmed with emotion. “It’s beautiful to witness,” the mother of three says. “She’s part of the community.”

This wasn’t always guaranteed. Elisia and her husband Tecumseh, who is a member of the Gila River Indian Community, became foster parents in 2012 after learning about the great need for Native American foster families in Arizona. They couldn’t have biological children of their own and felt a deep calling to help other families, Elisia says.

Within two years, the couple had taken in two foster children and adopted three more. Their two adopted sons are biological brothers, and each came to the Manuels when they were just days old.

Their daughter, Precious, also needed to leave her home as a baby but was going to be placed with a non-Native family at first. “She wouldn’t have received any education about her culture,” Elisia says. She knows what that would be like. Elisia’s family is Hispanic and has Apache roots, but, her grandmother was adopted and raised away from her biological family, so Elisia did not grow up learning about Apache culture and is not an enrolled tribal member.

Follow up NY Times Article on ICWA

Kate Fort

Here.

“I think it means a lot to our foster kids that we’re Cherokee,” said Carney Duncan, a gentle, soft-spoken man whose hair falls below his shoulders. “My mom and dad always helped people and took them in. I have an ‘Uncle Joe’ who is no kin but we took him in. And a ‘brother’ who lived with us who is no blood kin. We help our own. It’s a Cherokee value.”

Montana Law Review Browning Symposium Issue

Matthew L.M. Fletcher

Here:

Transcript

PDF

2018 James R. Browning Symposium Keynote
Matthew L.M. Fletcher

Articles

PDF

Sovereign Metaphors in Indian Law
Gregory Ablavsky

PDF

Tribal Nations and Congress’s Power to Define Offences Against the Law of Nations
John H. Dossett

PDF

From Foundational Law to Limiting Principles in Federal Indian Law
Alexander T. Skibine

Essay

PDF

On Indian Children and the Fifth Amendment
Matthew L.M. Fletcher

Note

PDF

United States v. Gillette: A Tiny Prairie Casenote Opening a Window on the Enveloping Fog Obscuring the Indian Civil Rights Act of 1968
Frank Pommersheim

Poem

PDF

Buddha Speaks Wisdom at the University of Montana Law Review Symposium on Indian Law
Frank Pommersheim

 

Intercept Article on ICWA and the Brackeen Case

Kate Fort

Here

“Babies don’t get born and run down to the citizenship office and file a petition,” said Matthew Fletcher, director of the Indigenous Law and Policy Center at Michigan State University. When his own child was born, he and his partner took a year to register him as a tribal member, in part because he was eligible for more than one tribal nation. “To say that somehow this kid hasn’t been enrolled yet and therefore doesn’t have a political relationship is really quite disingenuous.”

***

Reflecting on the rhetoric used by ICWA opponents like Sandefur, Nicole Adams, a spokesperson for Partnership for Native Children, pointed to the institutions that pushed for the use of boarding schools and adoption for decades before ICWA’s passage. “They were led by very well-intentioned Christian coalitions purporting that Indian children needed to be saved, and they were just the ones to do it. If you look at the rhetoric being put out by some of ICWA’s most staunch opponents, it is eerily and frighteningly similar.”

AFCARS Comments Due June 18

Kate Fort

Here are the previous posts on the Adoption and Foster Care Analysis and Reporting System.

These comments are to tell the federal government (AGAIN) to start collecting basic data on state ICWA cases. While we would like the original rule to stand (and say so in the model tribal comments), there is also an opportunity to request very specific data elements that are less complicated or confusing than the ones currently offered.

If you would like information on this issue or model tribal comments, please email Jack Trope (information handouts), Delia Sharpe (model comments), or me (both/either). If you are a law professor interested in signing on to excellent comments, email Seth Davis at Berkeley.

jtrope@casey.org

delia.sharpe@caltribalfamilies.org

fort@law.msu.edu

sdavis@law.berkeley.edu

 

Transfer to Tribal Court Case from Colorado [ICWA]

Kate Fort

Here is a case that continues to demonstrate the importance of ensuring a state ICWA law allows transfer of cases post-termination. Navajo Nation intervened and appealed the decision to deny transfer (and to move the children back to the former, non-ICWA compliant foster home, who opposed the transfer to tribal court).

Additional important issues in this case including the appealability of a final order, standing of former foster parents (they had none), and post-termination transfer to tribal court.

We acknowledge that ICWA only addresses a request to
transfer jurisdiction during foster care placement and termination of parental rights proceedings. 25 U.S.C. § 1911(b). It does not mention such a request during preadoptive or adoptive placement proceedings. See id. Even so, the Children’s Code, as it existed at the time the juvenile court denied transfer, permits a juvenile court to consider transfer of jurisdiction to a tribal court “[i]n any of the cases identified in subsection (1) of this section involving an Indian child.” § 19-1-126(1), (4)(a). The cases identified in subsection (1) include “pre-adoptive and adoption proceedings.” § 19-1-126(1).

Active Efforts and Transfer to Tribal Court Case out of Maine [ICWA]

Kate Fort

Here.

This is a difficult case, but the opinion does a nice job of outlining how a state and Tribe can work together in a state court ICWA case to provide active efforts when reunification with the father would be essentially impossible (based on the facts provided). The Court also correctly identifies legal standards involved with the father’s attempt to transfer the case to tribal court.