Sometimes the results change a little even when a court decision goes the wrong way: County to Stick with Current ICWA Hearing Procedures
ICWA
California Eliminates Pro Hac Vice Barriers for ICWA Cases
In a celebrate-the-victories post, the state with the most number of ICWA cases has removed major barriers for out of state ICWA attorneys. California notoriously had some of the highest pro hac fees and tightest limitations on the number of appearances an attorney can make. When I was started poking around about the idea of court rule changes, California always rose to the top. Thanks to California Tribal Families Coalition (CTFC) and their ED, Delia Sharpe, California passed both a bill (to eliminate fees) and a court rule (to eliminate association with local counsel). Here is the CTFC press release.
If California (and Washington and Michigan and Minnesota and Nebraska and Oregon) can get this done, so can your state. There’s a whole crew of in-house ICWA attorneys backing you up–send us an email.
Oglala Sioux Tribe Files En Banc Petition in South Dakota ICWA Case
Eighth Circuit Dismisses Oglala Sioux v. Fleming Under Abstention Doctrine
Here.
This is the long running (initiated before Adoptive Couple v. Baby Girl) case that is attempting to address the due process and ICWA violations against Native families in Pennington Co., South Dakota. Brought by Oglala Sioux, Rosebud Sioux and two individual tribal citizen mothers on behalf of a class of similarly situated parents, this case has highlighted the disturbing practices of the county (which, even more disturbingly, are not that surprising to trial level practitioners in our child welfare system). The District Court had found for the plaintiffs at each stage, and found specifically that abstention/Younger doctrine did not a apply to this case. The Eighth Circuit found differently.
Setting aside the due process claims for the sake of this point, ICWA itself creates a right of action under 25 USC 1914 (a parent, custodian, or tribe may petition a court of competent jurisdiction to invalidate any cases in violation of 1911 [jurisdiction], 1912 [notice/active efforts/burden of proof], or 1913 [voluntary proceedings]). This right, however, has often been limited by federal courts under abstention doctrines, which means the state courts that are causing the abuses of the law are the only places to address the abuses of the law. As the Court states, “Although the plaintiffs complain that state court proceedings do not afford parents an adequate opportunity to raise broad constitutional challenges under the Due Process Clause, they have not established that South Dakota courts are unwilling or unable to adjudicate their federal claims.” There are a number of federal cases on ICWA–that is, ones that are attempting to demonstrate a violation of the law–that end up with a hollow 1914. See Yancey v. Bonner, 2008 WL 4279760 (W.D. Okla. 2008), Navajo Nation v. LDS Family Services, 2006 WL 3692662 (D. Utah 2006), Kickapoo Tribe of Oklahoma v. Rader, 822 F.2d 1493 (10th Cir. 1987)
I’d also note while the Court said “[t]he relief requested would interfere with the state judicial proceedings by requiring the defendants to comply with numerous procedural requirements at future 48-hour hearings,” those procedural requirements are ones required by both the Constitution and the Indian Child Welfare Act.
The ICWA Appellate Project filed an amicus brief on behalf of the Navajo Nation, Cherokee Nation, the ICWA Law Center, NICWA and NCAI in this case.
Tribal Comments Needed for Notice for Proposed Model Family Foster Home Licensing Standards
Here is the link. Comments are due by October 1.
By April 1, 2019, title IV-E agencies, which include all states and 12 tribes, must provide the HHS specific and detailed information about:
○ Whether the state or tribal agency foster family home licensing standards are consistent with the model licensing standards identified by HHS, and if not, the reason; and
○ Whether the state or tribal agency waives non-safety licensing standards for relative foster family homes (pursuant to waiver authority provided by section 471(a)(10)(D) of the Act), and if so, how caseworkers are trained to use the waiver authority and whether the agency has developed a process or provided tools to assist caseworkers in waiving these non-safety standards to quickly place children with relatives.
At this stage, HHS is trying to identify the model by which the state and direct IV-E tribes will be measured against. In this notice, the Children’s Bureau provides what they would like to use as that model: “We are proposing one set of standards for comment to apply to relatives and non-relatives, as well as state and tribal title IV-E agencies.”
The model appears problematic at best and is causing concern among both state and tribal IV-E workers and attorneys. As just one example, “i. A continuous supply of safe drinking water. ii. A properly operating kitchen with a sink, refrigerator, stove, and oven;”. We have families in Michigan that do not have a continuous supply of safe drinking water right now. What does “continuous supply” mean if you have to haul water? What is “properly operating”. There are many, many provisions like this in the model (like a functional literacy requirement), and if your tribe is concerned about getting homes licensed by either state or direct tribe IV-E agencies, this will affect you. I don’t see any comments submitted yet, or cannot access them, but if we receive good models or see ones submitted, I will post them as examples.
NICWA’s website further states: “There is no penalty for states or tribes that use different foster care standards than the national ones, but NICWA has raised concerns about how these will be used in future technical assistance and training with tribes by ACF. In addition, the national standards have not adequately taken into consideration unique cultural issues for AI/AN children and families and issues related to tribal authority to establish foster care standards.”
Rare Published Notice Opinion out of California Court of Appeals
In re EH (Fourth District, 1st Div). For reference, so far this year California has had 48 unpublished notice decisions and 19 unpublished inquiry decisions. This is the first published notice case this year.
We agree with Mother that, considering Sally Y.H.’s statement to the Agency that her paternal family had Tohono O’odham Nation heritage, the Agency had a duty to attempt to obtain Sally Y.H.’s father’s identifying information and to provide notice of any such information obtained to the Tohono O’odham Nation. We further conclude that the Agency has not demonstrated that it fulfilled that duty by providing the Tohono O’odham Nation with information pertaining to an individual named Bruno Y. since it is not clear from the record that Bruno Y. is Sally Y.H.’s father. Moreover, if Bruno Y. is Sally Y.H.’s father, and E.H.’s great-great-grandfather, the Agency failed to properly describe his ancestral relationship to E.H. on the notice provided to the Tohono O’odham Nation. Finally, given that Sally Y.H. told the Agency that her paternal family had heritage from the Tohono O’odham Nation, we cannot conclude that the Agency’s errors were harmless. Accordingly, we reverse the judgment for the limited purpose of having the Agency provide the Tohono O’odham Nation with proper notice of the proceedings in this case, including accurate information pertaining to all known direct lineal ancestors of E.H., in accordance with all applicable law.3
***
FN 3. Mother also contends that the notice that the Agency provided to the Tohono O’odham Nation was deficient for several additional reasons, including that the Agency erred in listing her current address as being “no information available,” and in failing to update the notice when information about her residence became available. In light of our reversal, we need not consider these contentions, but we direct the juvenile court to ensure that the Agency provides Mother’s correct current address at the time of noticing upon remand, if known.
In addition, Mother contends that the Agency provided the tribe an incorrect address for Sally Y.H. The Agency concedes that the address that it provided for Sally Y.H. contained typographical errors, including listing the city of her residence as ” ‘Alpaso’ ” rather than ” ‘El Paso,’ ” but argues that any errors were harmless. In support of its harmlessness argument, the Agency asks this court to take judicial notice of the fact that “El Paso is a city in the state of Texas and Alpaso is not.” The juvenile court is directed to ensure that the Agency provides Sally Y.H.’s correct current address at the time of noticing upon remand, if known. We deny the Agency’s request for judicial notice as moot.
Finally, Mother states that the Agency was required to list Mother’s and Sally Y.H.’s telephone numbers on the notice that it provided to the Tohono O’odham Nation. On remand, the juvenile court shall direct the Agency to provide Mother’s and Sally Y.H.’s telephone numbers, if known. (See Welf. & Inst. Code, § 224.2 [specifying that notice sent to a tribe shall include “[a]ll names known of the Indian child’s biological parents . . . and great-grandparents . . . as well as their current and former addresses, birthdates, places of birth and death, tribal enrollment numbers, and any other identifying information, if known”], italics added; unless otherwise specified, all subsequent statutory references are to the Welfare and Institutions Code.)
***
This argument is unpersuasive since the letter from the Tohono O’odham Nation does not indicate the basis upon which the tribe made its determination as to E.H.’s Indian child status. Nor can we agree with the Agency’s suggestion that the fact that the Tohono O’odham Nation did not ask for further information demonstrates that the Agency’s error was harmless. The tribe was not required to ask the Agency to provide information that the record indicates the Agency should have reasonably attempted to obtain and provide to the tribe. Thus, we decline to find the Agency’s error harmless simply because the tribe did not indicate that further information might have altered its determination, particularly given the other noticing errors acknowledged by the Agency.
Montana Supreme Court ICWA Case
Here.
The Montana Supreme Court continues to apply Baby Girl to absent fathers involved in state initiated proceedings, and not apply ICWA when terminating their rights.
CILS Presentation at Cahuilla on Tribal Homes for Foster Placement, Sept. 11
AFCARS Data Implementation Rule Delayed and Will be Revised. Again.
From the Administration for Children and Families here.
The rule is delayed until 2020 and the Administration is going to “streamline” the data elements. And then it might just be delayed again based on the “streamlining”:
The Children’s Bureau published in the Federal Register on August 21, 2018 a final rule to delay implementation of the December 2016 AFCARS final rule until October 1, 2020 (83 FR 42225). However, since we plan to revise the AFCARS data points, we will revisit this implementation date to provide a timeframe to allow title IV-E agencies time to comply with the revised AFCARS data points.
CSKT 2018 Indian Child Welfare Legal Summit, September 12-13
Confederated Salish & Kootenai Tribes’2018 Indian Child Welfare Legal Summit
The Montana Court Improvement Program, in conjuction with CSKT, would like to invite you to this interactive training designed to improve legal knowledge, skills, and practices in relation to Indian Child Welfare.
After opening with a case law update describing recent Montana opinions, federal court litigation, and note-worthy opinions from sister states, this CLE will provide a quick interactive refresher on the basics of tribal jurisdiction in child custody cases and the requirements of the Indian Child Welfare Act.
With this foundation in place, participants will explore topics like best practices in child welfare cases, domestic child sex trafficking, tribal code enhancement, and ethics as it relates to Indian child welfare cases. Participants will have the opportunity to break out into small affinity groups to discuss improving systems and practices across the state in order to better serve AI/AN children and families.
This two-day training is designed for tribal attorneys, tribal judges, parents’ attorneys, GALs, adoption attorneys, and state prosecutors. (Although caseworkers, CASAs, and other child welfare practitioners are welcome to join us, the focus of this training is to improve legal knowledge, skills, and practices.) Faculty includes local and national experts, practitioners, and scholars from across the country. An application for CLE credits will be filed.
For agenda, updates and more visit:
Turtle Talk 
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