Here!
Apparently last year I threatened some of you with embarrassment if you didn’t use these, which I’m not doing this year (but seriously, use these. Do not send notice to the tribal newspaper [yes, that has happened]).
ICWA
Washington State Adopts ICWA Pro Hac Rule!
AFCARS Tribal Comments Needed-June 13 Deadline
The Administrating is reconsidering the burdens of the Obama Administration’s Final Rule to collect data on American Indian/Alaska Native children in foster care through the Adoption and Foster Care Analysis and Reporting System (AFCARS). Comments are due June 13. Previous posts explaining this call for comments are here and here and here.
If you are interested in reviewing model comments for tribes stating the data elements should remain intact, please email Delia Sharpe (California Tribal Families Coalition) at delia.sharpe@caltribalfamilies.org or me at fort@law.msu.edu
We will both be at the California ICWA conference today and tomorrow.
Consent to Termination of Parental Rights Decision in Michigan Supreme Court
The ICWA Appellate Clinic co-represented the tribe in this case.
This case involves a complicated question of state statute interpretation regarding a voluntary consent to a termination of parental right in the face of a state termination petition. In this case, the dad consented to termination before the termination hearing. The children were later placed in a tribal-approved foster placement, and the dad withdrew his consent to termination. The question was whether dad could do that under Michigan statute.
None of the protections in MCL 712B.15, [mirroring ICWA’s main protections in an involuntary proceeding] which are designed for contested and adversarial proceedings, remains relevant once a parent voluntarily releases his or her rights under MCL 712B.13. When the court accepted Williams’s release, and the proceedings went from adversarial to cooperative, the protections of MCL 712B.15 did not apply.
However, the Court also held,
That is, Williams may withdraw his consent, but because he is still subject to MCL 712B.15, DHHS may refile a termination petition. MCL 712B.15. And, under MCL 712B.13(3), a parent who consents during an involuntary termination proceeding is not entitled to “the return of the Indian child” to him or her.
Instead, the child returns to the position the child was in before his or her parent consented to the termination of parental rights. Williams’s children were in foster care when he consented to the termination of his parental rights, his children will remain in foster care, and Williams will be once again subject to the procedures and protections of MCL 712B.15. DHHS may proceed with its termination case if it chooses, and if DHHS can satisfy the heightened requirements of MCL 712B.15, Williams’s parental rights can be terminated.
Briefing on the case is here.
ICWA QEW Opinion in the Minnesota Supreme Court
The question of what Qualified Expert Testimony (QEW) actually is under ICWA comes up all the time. The Minnesota Supreme Court did a pretty deep dive into what it means in terms of termination of parental rights, and concludes,
Read straightforwardly, the statute provides that to terminate parental rights, a district court must determine that “continued custody of the child by the parent . . . is likely to result in serious emotional or physical damage to the child.” 25 U.S.C. 1912(f). This determination must be supported by evidence “beyond a reasonable doubt,” and part of the supporting evidence must be QEW testimony. Id. The statute is unambiguous.
. . .
The parents . . suggest that the statute requires that the QEW testify specifically that “continued custody . . . is likely to result in serious emotional or physical damage.” 25 U.S.C. § 1912(f). . . . If Congress wanted to impose a requirement that the expert utter a “magic phrase,” it could have done so. But as written, neither ICWA nor MIFPA require a specific QEW opinion that “continued custody . . . is likely to result in serious emotional or physical damage.” 25 U.S.C. § 1912(f); Minn. Stat. § 260.771, subd. 6(a). S
…
Accordingly, we conclude that in a termination proceeding governed by ICWA and MIFPA, a court cannot terminate parental rights unless it determines that evidence shows, beyond a reasonable doubt, that continued parental custody of the child is likely to result in serious emotional or physical damage to the child. That determination must be supported by QEW testimony.
Because the QEW admitted on the stand that she focused most of her testimony and affidavits on the mother (who was a tribal member) and not the father (who not an enrolled tribal member in any tribe), the court held her testimony did not support the termination as to father.
I get questions pretty frequently about QEW, QEW training, and whether a person should be a QEW. My answer is almost always the same–a QEW must be comfortable stating that the parental rights should be terminated, or that these children should be put in foster care. That information is what is required by statute, and why the state (or party seeking removal/termination) must put a QEW on the stand. The QEW is ultimately there to testify against the parents, regardless of any other testimony they may proffer.
ICWA Notice Decision in the Colorado Court of Appeals
This is a fairly standard notice decision, but the instructions on remand are the kind that more courts of appeals need to provide in ICWA cases. As they are nearly four full pages long, I’m not quoting them here, but I am posting the opinion because of them.
Also, by “fairly standard notice decision”, I mean the Department was aware of possible American Indian/Cherokee heritage in May, and no one did any notice till December, a month after the Department filed the TPR. The Court of Appeals sent it back down to fix that.
Student Note on ICWA as a Political Classification Statute
Allison Krause Elder has published “Indian” as a Political Classification: Reading the Tribe Back into the Indian Child Welfare Act in the Northwestern Journal of Law & Social Policy. Here is the abstract:
In the summer of 2018, the Ninth Circuit will consider an appeal from the dismissal of a constitutional challenge to the Indian Child Welfare Act (ICWA). Brought by a conservative think-tank, this case frames the ICWA as race-based legislation, violating equal protection by depriving Indian children of the same procedures as non-Indian children in child custody cases. In reality, the ICWA seeks to protect the interests of tribes, Indian families, and Indian children by establishing special procedures and obligations in Indian child custody cases. On its face, the ICWA is concerned not with the race of children, but with the special status of tribes and their political membership. As discussed in this Paper, a racial understanding of the ICWA is inconsistent with both the statute itself and the historically mixed political-racial status of tribes in the United States. While the Supreme Court created an opening for a race-based view of the ICWA in Baby Veronica, prior precedents embraced a political understanding of “Indian” where Congress intended to support tribal sovereignty. This Paper argues that any fair reading of the ICWA must treat “Indian” as a political rather than racial classification, and that the ICWA cannot be subject to strict scrutiny under equal protection. To do otherwise is to read the tribe out of the Act, which is not just inconsistent with the statute, but dismissive of the unique history of tribes in our nation.
2017 ICWA Case Law Update and Commentary
Addie Smith and I put this together:
Indian Child Welfare Act Annual Case Law Update and Commentary
This article provides a comprehensive catalog of published ICWA jurisprudence from across all fifty states in 2017. Designed as a quick reference for the ICWA practitioner, this article summarizes key case decisions that have interpreted the law in meaningful, significant, or surprising ways. It also tracks current attempts by ICWA’s opponents to overturn the law. By providing an overview of last year’s ICWA cases, this article is meant to keep practitioners up-to-date so they can be effective in the juvenile courtroom without sorting through and reading the dozens of cases published across all fifty jurisdictions.
Montana Supreme Court ICWA Case on Termination Standards
Appellant M.D. (Father) challenges the Thirteenth Judicial District Court’s decision to terminate his parental rights to his minor child, A.L.D. Father contends that the State of Montana’s Department of Public Health and Human Services (Department) did not provide the active efforts required under 25 U.S.C. § 1912(d) to prevent the breakup of an Indian family; that A.L.D. was placed in a foster home in violation of the placement preferences set forth in 25 U.S.C. § 1915; and that Father’s attorney provided ineffective assistance of counsel. We affirm.
Briefs:
Appellant Brief
Two Published Colorado Court of Appeals ICWA Cases
In this opinion, the Court held ICWA applies to any proceeding that may lead to a foster care placement–even if the child is placed with a parent. These are important cases because the state can have jurisdiction over a family even if the child is placed in the home. Indeed, ICWA is written assuming the state will work to “prevent the breakup” of the Indian family.
The Department initiated this proceeding after an emergency proceeding in which it removed the child from his parents’ care. At the shelter hearing, the court granted the Department’s request to return the child home. But the court was not bound to follow the
Department’s recommendation. That is, although the shelter hearing did not result in foster care placement, it could have. And, because the dependency and neglect action remains open, the Department could request custody and foster care placement at any
time. For purposes of ICWA, it is immaterial that the child is not presently placed out of the home
Unlike other cases that addressed this issue, this is a very straightforward reading of the law and regulations.
In the second opinion, the Court of Appeals raised the issue of inquiry sua sponte (!).
The juvenile court must ask each participant on the record at the beginning of every emergency, voluntary, or involuntary child custody proceeding whether the participant knows or has reason to know that the child is an Indian child. 25 C.F.R. § 23.107(a) (2017); see also L.L., ¶ 19. Termination of parental rights is one type of child custody proceeding under ICWA. 25 U.S.C. § 1903(1) (2012). The inquiry must be made at the commencement of the proceeding and all responses should be on the record. 25 C.F.R.
§ 23.107(a).
If there was ever a question of whether judicial education (and good clerks with Indian law backgrounds) makes a difference, here you go.
Turtle Talk 
You must be logged in to post a comment.