ICWA

Unpublished ICWA Notice Case out of California (First District)

Kate Fort1 Comment

Here.

The First District of California seems to be trying a new way to deal with notice violations in ICWA cases by detailing the mistakes in the notice in the opinion. The first time we saw it was in September (here). In this case, a different division in the same District did a similar analysis.

As to the Chippewa Cree tribe, the notice for G.B.-C. was sent to Chippewa Cree Indians, Brenda Gardiner, ICWA Rep, RR1, P.O. Box 544, Box Elder, Montana 59521. According to the Department’s proof of service, the notice for M.B.-C. was sent to the same address. The address specified for the tribe in the Federal Register was Chippewa Cree Tribe of the Rocky Boy’s Reservation of Montana, Christina Trottier, ICWA Director, 31 Agency Square, Box Elder, MT 59521. (79 Fed.Reg. 3225 (January 17, 2014).) Although the city, state and zip code were the same, the addresses were completely different.
The Department asserts the notice was nevertheless adequate because the P.O. Box address it used to provide notice to the Chippewa Cree tribe was the one that was listed on the State Department of Social Services’s (CDSS) website.4The Department relies on In re N.M., supra, 161 Cal.App.4th at page 268, in which the court held the child welfare agency did not err in using the names and addresses provided by CDSS in notifying the relevant tribes, stating: “The Department should not be hamstrung by limitation to only the names and addresses provided for the tribes in the Federal Register if a more current or accurate listing is available and is reasonably calculated to provide prompt and actual notice to the tribes.
While requiring the Department to adhere to an address listed in the federal register when other, more accurate information is available elsewhere “would exalt form over substance,” (In re N.M., supra, 161 Cal.App.4th at p. 268), we must still respect the Department of Interior’s primary authority in administering ICWA (In re S.B. (2005) 130 Cal.App.4th 1148, 1157 [the federal regulations implementing ICWA “are binding in all federal and state courts by virtue of the supremacy clause”] ). ICWA notice may depart from the addresses listed in the federal register, but only when the alternative address is “more current or accurate.” (In re N.M., supra, 161 Cal.App.4th at p. 268.)
Here, there is nothing in the record indicating the CDSS address the Department used was more current or accurate than the address listed in the Federal Register. Thus, while the return receipt received for the notice sent for G.B.-C. shows that someone at the CDSS address received the notice, there is no basis to conclude the notice was received by someone at the Chippewa Cree tribe who was “trained and authorized to make the necessary ICWA determinations, including whether the minors are members or eligible for membership and whether the tribe will elect to participate in the proceedings.” (In re J.T., supra, 154 Cal.App.4th at p. 994.)”

Preliminary 2015 AFCARS Data Released by DHHS

Kate Fort

Just a reminder that this is the Adoption and Foster Care Analysis and Reporting System data, which is information sent from the state to the federal government about kids in foster care. There is still a pending rule change that would add ICWA-specific data elements to these reports, but it has not yet been promulgated. How Native children are identified by state actors for this report varies dramatically by state (and county), but it is the best data we have at this time.

Here.

Proposed Court Rule in Michigan to Waive Pro Hac Fees and Other Limits for Out of State Tribal ICWA Attorneys

Kate Fort1 Comment

Here.

In ICWA cases, the tribe has a right of intervention in whatever state court is hearing the case of the tribal child. While it is true that the “tribal representative” does not have to be attorneys, when they are attorneys, there may be concerns about practicing without finding local counsel or using the local “pro hac” rule. Michigan has proposed a court rule that would waive those requirements for tribal attorneys representing the tribe in a state court where the attorney is not barred. This proposed rule is in direct response a number of requests from tribal ICWA attorneys nationwide. We are hopeful other states will consider a similar rule (though in Nebraska this is right is guaranteed by statute, which is another great fix). This rule was proposed by the Michigan Tribal-State Judicial Forum.

Also, if you are an out of state attorney who would benefit from this proposed Rule (or in state) please send in comments by March 1.

Washington Supreme Court Explicitly Rejects Existing Indian Family Exception

Kate Fort2 Comments

Here

In only the third Washington Supreme Court case to directly interpret ICWA and the first to interpret WICWA, the Court holds In re Crews (the case that established EIF in Washington) is overturned.

Under our above interpretation of ICWA and WICWA, if a case (1) meets the definition of a “child custody proceeding” and (2) involves an Indian child, both acts shall apply. ICWA and WICWA recognize only two exceptions to coverage–delinquency
proceedings and custody disputes following divorce where one parent retains custody of the Indian child. Our interpretation therefore overrules Crews to the extent that it embraced the existing Indian family exception because it recognizes no additional exceptions to coverage outside of the two expressly stated in ICWA and WICWA.

ICWA and WICWA also apply based on the child’s membership, not the parent’s:

For these reasons, we hold that whether the parent whose rights are being terminated is non-Indian is immaterial to a finding that ICWA and WICWA apply. If the child at issue is an Indian child and that child is involved in a child custody proceeding, ICWA and WICWA shall apply.

Craig Dorsay represented the tribal amicus brief (including oral arguments), and NARF and Indian Law Clinic at MSU Law provided strategy and research support in this case. Previous coverage here.

Cert Petition Filed by Foster Parents in the Alexandria P. Case

Matthew L.M. Fletcher

Petition here.

Previous coverage and case documents here.

After the California Court of Appeals upheld Alexandria’s placement with her family in Utah, the foster parents appealed to the California Supreme Court. The California Supreme Court decided against review. Though there is no written opinion from that decision, the foster parents can petition the Supreme Court for cert at this point.

The questions presented are:
(1) Whether ICWA applies where the child has not been removed from an Indian family or community.

(2) Whether ICWA’s adoptive placement preferences, 25 U.S.C. § 1915(a), require removal from a foster placement made under 1915(b), for the purpose of triggering the Adoptive placement preferences contained in 1915(a).

(3) Whether the state courts erred in holding that “good cause” to depart from ICWA’s placement preferences must be proved by “clear and convincing evidence”–contrary to the text and structure of the statute and the decision of at least one other state court of last resort–or otherwise erred in their interpretation of “good cause.”

The likelihood of the Court granting this petition is relatively slim. However, the attorney representing the foster parents is the same attorney who represented the birth mother in Adoptive Couple v. Baby Girl. Indian Country should expect no less of an onslaught of media from this case than what happened in that one. The foster parents in this case have used the exact same media strategy. This article in the October ABA Journal Magazine leaves no doubt. None of this should be a surprise to those following the cases filed in the past year, but Indian Country is going to have to find the support for the type of media strategy Choctaw Nation will need to counter the attacks that will come.

There is an alternative summary of the facts that is rooted in the lower court decisions (and reflects the reality that all of the parties except this couple agreed that this little girl’s current placement with her relatives is in her best interests) here.

Judge Grants Tribal Motions to Intervene in Goldwater (ICWA) Litigation

Kate Fort1 Comment

Here.

Previous filings here.

Unpublished ICWA Notice Case out of California Detailing Mistakes in Notices

Kate Fort3 Comments

Here.

If you see me present in the next year, be warned that at the first question about notice and how long it takes for a tribe to respond, I may just read this opinion out loud. As a reminder, there is a list names and addresses in the Federal Register of Designated Tribal Agents for Service of ICWA Notice for agencies to send notice to when a parent says they are or may be a member of a tribe. The First Circuit does a very nice job of detailing the type of mistakes that are just incredibly common. A note–the Court uses the Federal Register list that was in effect when the notices supposedly went out in 2015. However, a few times the Agency managed to use agents listed in the most recent (March, 2016) register.

According to the Federal Register, the designated agent and address for the Jicarilla Apache Nation was “Olivia Nelson-Lucero, Acting Program Manager, Jicarilla Behavioral Health, P.O. Box 546, Dulce, NM 87528.” (79 Fed. Reg. 72027.)

According to the certified mailing receipt, the Agency sent the notice to the designated address, but directed it to “Director, Mental Health/Social Services” rather than to “Olivia Nelson-Lucero, Acting Program Manager, Jicarilla Behavioral Health.”

Current designated agent: Jicarilla Apache Nation, Sharnen Velarde, ICWA Social Worker, P.O. Box 546, Dulce, NM 87528

The designated agent and address for the Tonto Apache Tribe was “Brian Echols, Social Services Director, T.A.R. #30, Payson, AZ 85541.” (79 Fed. Reg. 72029.) The Agency sent the notice to the designated address, but directed it to “Lyndsie Butler, Social Services Director” rather than to “Brian Echols, Social Services Director.”

Agency used current agent, 81 Fed. Reg. 10909

The designated agent and address for the White Mountain Apache Tribe was “Cora Hinton, ICWA Representative/CPS Supervisor, P.O. Box 1870, Whiteriver, AZ 85941.” (79 Fed. Reg. 72029.) The Agency sent notice to the designated address, but to “Mariella Dosela, ICWA Representative” rather than to “Cora Hinton, ICWA Representative/CPS Supervisor.”

Agency used current agent, 81 Fed. Reg. 10909

The designated agent and address for the Yavapai Apache Nation was “Linda Fry, Director, Department of Social Services, 2400 West Datsi Street, Camp Verde, AZ 11 86322.” (79 Fed. Reg. 72029.) The Agency sent notice to the designated address, but omitted Linda Fry’s name and title. In other words, it simply sent the notice to the tribe, rather to any particular person at the tribe.

Current designated agent: Ray DiQuarto, Social Services Director, 2400 West Datsi Street, Camp Verde, AZ 86322

The designated agent and address for the Crow Tribe of the Crow Reservation of Montana was “Melveen Paula Fisher, ICWA Coordinator, P.O. Box 340, Crow Agency, MT 59022.” (79 Fed. Reg. 72026.) The Agency sent notice to the “ICWA Representative” rather than to Fisher as “ICWA Coordinator.” Moreover, the notice was not sent to the address designated in the Federal Register; it was sent to P.O. Box 159 rather than to P.O. Box 340.

Agent is the same in both Registers.

The designated agent and address for the Lower Sioux was “Reanna Jacobs, ICWA Advocate, Darin Prescott, Director, 39568 Reservation Highway 1, Morton, MN 56270.” (79 Fed. Reg. 72021.) The Agency sent notice to “ICWA Representative” rather than to “Reanna Jacobs, ICWA Advocate, Darin Prescott, Director.” Moreover, the notice was not sent to the address designated in the Federal Register

Agent is the same in both Registers.

The designated agent and address for the Oglala Sioux Tribe was “Juanita Sherick, Director ONTRAC, P.O. Box 2080, Pine Ridge, SD 57752.” (79 Fed. Reg. 72020.) Although the Agency sent notice to the designated address, it directed it to the “ICWA Administrator” rather than to “Juanita Sherick, Director ONTRAC.” While sending notice to an ICWA Administrator may well be sufficient in some instances, the record in this case does not explain why it would be sufficient when the designated agent is someone who is instead the Director of “ONTRAC.”

Current designated agent is Emily Iron Cloud-Koenen, ICWA Administrator, Oglala Sioux Tribe—ONTRAC, P.O. Box 2080, Pine Ridge, SD 57770

The designated agent and address for the Santee Sioux Nation was “Clarissa LaPlante, ICWA Specialist, Dakota Tiwahe Service Unit, Route 2, Box 5191, Niobrara, NE 68760.” (79 Fed. Reg. 72020.) The Agency sent notice to the designated address, but directed it to the “ICWA Specialist” rather than to “Clarissa LaPlante, ICWA Specialist.”

Current designated agent is Carla Cheney, ICWA Specialist, Santee Sioux Tribe of Nebraska, Dakota Tiwahe Social Services Program, Route 2, Box 5191, Niobrara, NE

The designated agent and address for the Standing Rock Sioux Tribe was “Terrance Yellow Fat, Director, Indian Child Welfare Program, P.O. Box 770, Fort Yates, ND 58538.” (79 Fed. Reg. 72020.) According to the certified mail receipt and return receipt, the Agency sent notice to the designated address, but directed it to “Raquel Franklin” rather than to “Terrance Yellow Fat, Director.”

Agency used current agent, 81 Fed. Reg. 10900.

The designated agent and address for the Hannahville Indian Community of Michigan was “Jessica Brock, ICWA Worker, N15019 Hannahville B1 Road, Wilson, MI 49896.” (79 Fed. Reg. 72021.) The Agency sent notice to the designated address, but directed it to “ICWA Worker” rather than to “Jessica Brock, ICWA Worker.”

Agent is the same in both Registers.

The designated agent and address of the Prairie Island Indian Community was “Nancy Anderson, Family Service Manager, 5636 Sturgeon Lake Road, Welch, MN 55089.” (79 Fed. Reg. 72021.) The Agency sent notice to the designated address, but directed it to “ICWA Representative” rather than to “Nancy Anderson, Family Service Manager.” The record does not disclose why the notice would ensure that it would be delivered to the appropriate person

Current designated Agent is Renae Wallace, Family Service Manager, 5636 Sturgeon Lake Road, Welch, MN 55089;

The designated agent and address for the Sisseton-Wahpeton Oyate tribe was “Evelyn Pilcher, ICWA Specialist, P.O. Box 509 Agency Village, SD 57262.” (79 Fed. Reg. 72020.) The Agency sent notice to the designated address, but directed it to “ICWA Director” rather than Pilcher as “ICWA Specialist,” and added “Lake/Traver” to the name of the tribe.

Agent is the same in both Registers.

At least the Agency didn’t send notice to a tribal newspaper (100% true story).

Proposed ICWA Rule Changes to the New Mexico Children’s Court Rules and Forms

Kate Fort1 Comment

Here.

Comments accepted until October 3rd.

Many states are taking on the work of updating their court rules in light of the new Regulation. In states where there is an existing state ICWA law, it’s important to consider any rule changes in light of that law.

Unpublished ICWA Notice Case from Michigan Court of Appeals

Kate Fort

This is a pretty standard unpublished ICWA notice case (there have been 62 so far this year, 53 out of California, 3 from Michigan, 2 from Texas, and 1 each from Indiana, Iowa, Kansas, and New Jersey). We’re posting it for two (three) reasons. From the opinion:

We also reject the father’s challenges to the notices’ failures to include a copy of the petition in LC No. 13–514918–NA. The father cites only 80 CFR 37, 10146, 1153–1154 (2015). This regulation contains the requirements for Native–American tribal notifications under 25 USC 1912(a). In relevant part, the regulation demands that a notice of a pending child custody proceeding contain “clear and understandable language and include” identifying information concerning the child, the tribes “in which the child … may be eligible for membership,” and “[a] copy of the petition, complaint or other document by which the proceeding was initiated.” 80 CFR 37(B)(6)(a)(1)-(3). But the father fails to identify any authority in support of the proposition that the failure to strictly adhere to the requirement that a tribal notice contain a petition copy demands conditional reversal.

(emphasis added).

1. There is still mass confusion over Guidelines v. Regulations, including which is currently effective, their binding nature, and how to cite them. It appears father’s attorney meant to cite 80 Fed. Reg. 10153-4 (Feb. 25, 2015), which are the 2015 Guidelines, not regulations, and not a CFR. The following quote is from the same source, though I admit I was stumped on where that 37 came from–BUT that’s the number of the applicable Federal Register: Volume 80, No. 37. Page 10153, Section B.6(a). But the Court of Appeals didn’t catch this mis-cite either.

2. Yes, the Guidelines are not binding, but the Court of Appeals apparently considered them regulations for the purposes of the opinion. And yes, the 2016 Regulations are not binding until December. However, that’s also not the court’s reasoning. The Michigan Court of Appeals here says there is no remedy for not following the Regulations. That there must be additional authority beyond that of the language of federal Regulations to justify sending it back to the lower court to do the work required–father (mis)cites only binding federal Regulations. This is a small issue in this case–it appears that notice on the whole was proper. But it also demonstrates the problem with the continued lack of an enforcement mechanism in these cases.

3. For the record, either the attorney or the court could have cited to the current Regulations, 23 CFR sec. 23.11(d)(4)(2005)(“a copy of the petition, complaint, or other document by which the proceeding was initiated”), which are currently binding. The attorney or court could also point to the Regulations which will be binding in December and moved that same requirement to sec. 23.111(d)(5)(“a copy of the petition, complaint, or other document by which the child custody proceeding was initiated . . .”), 81 Fed. Reg. 38864, 38871 (June 14, 2016).

California Supreme Court Denies Review in In re Alexandria P. (Choctaw ICWA Case)

Kate Fort

Docket here.

Documents and previous coverage here.