ICWA – Page 50 – Turtle Talk

The Court held this court rule to be invalid:

The rule provides: “If after notice has been provided as required by federal and state law a tribe responds indicating that the child is eligible for membership if certain steps are followed, the court must proceed as if the child is an Indian child and direct the appropriate individual or agency to provide active efforts under rule 5.484(c) to secure tribal membership for the child.” (Rule 5.482(c), italics added.) We conclude the rule is invalid as a matter of state law.

But this rule to be valid:

Rule 5.484(c)(2) provides: “In addition to any other required findings to place an Indian child with someone other than a parent or Indian custodian, or to terminate parental rights, the court must find that active efforts have been made . . . to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family, and must find that these efforts were unsuccessful. [¶] . . . [¶] (2) Efforts to provide services must include pursuit of any steps necessary to secure tribal membership for a child if the child is eligible for membership in a given tribe, as well as attempts to use the available resources of extended family members, the tribe, tribal and other Indian social service agencies, and individual Indian caregivers.”

ICWA Director Vacancy with Association of Village Council Presidents

July 12, 2016Sarah M Donnelly

Link to job site here.

The ICWA Director is responsible for the overall operations of the ICWA department and personnel. It includes supervision of the ICWA Program involving case management oversight entered into on behalf of the compacted villages in the AVCP region.

California Court of Appeals Finds No Good Cause to Deviate from Placement Preferences in Alexandria P. Case

July 8, 2016July 8, 2016Kate Fort

Opinion here. The Court of Appeals upholds that the order placing Alexandria P. with her family in Utah.

Information page with previous posts and holdings here.

We have twice remanded the matter because the lower court used an incorrect standard in assessing good cause. The dependency court has now correctly applied the law governing good cause, considering the bond Alexandria has developed over time with the P.s, as well as a number of other factors related to her best interests. Those other factors include Alexandria’s relationship with her extended family and half-siblings; the capacity of her extended family to maintain and develop her sense of self-identity, including her cultural identity and connection to the Choctaw tribal culture; and the P.s’ relative reluctance or resistance to foster Alexandria’s relationship with her extended family or encourage exploration of and exposure to her Choctaw cultural identity.

And

The P.s also do not—and in our view cannot—provide an adequate response to an issue raised most effectively by minor’s appellate counsel. Even though they appear before the court by virtue of their status as de facto parents, the P.s’ efforts to show good cause are motivated by their own interests. Minor’s counsel, not the P.s, has a legal and ethical obligation to represent Alexandria’s interests.(In re Josiah Z. (2005) 36 Cal.4th 664, 675-677.) The P.s lack the right to assert Alexandria’s interests because Alexandria has her own counsel, who represents her interests and also acts as her guardian ad litem.
***

We recognize that the P.s are claiming that Alexandria’s best interests are served by a finding of good cause, but their argument is undermined by the fact that minor’s counsel argued just the opposite. We are unaware of any published case where a court has upheld a departure from the ICWA’s placement preferences contrary to the position of the minor. In other words, in every published case upholding a good cause finding,
counsel for the minor either advocated for the finding, was aligned with the party advocating for a finding of good cause, or was silent.

California Supreme Court on Issues ICWA Notice Opinion

July 8, 2016July 8, 2016Kate Fort

Here.

This is the In re Isaiah H. decision, where amici included the United States and California Indian Legal Services on behalf of appellant mother. Briefing was completed in this case more than a year ago, and oral arguments were heard in May.

We granted review to decide whether a parent who does not bring a timely appeal from a juvenile court order that subsumes a finding of ICWA‘s inapplicability may challenge such a finding in the course of appealing from a subsequent order terminating parental rights. Because ICWA imposes on the juvenile court a continuing duty to inquire whether the child is an Indian child, we hold that the parent may a challenge a finding of ICWA‘s inapplicability in an appeal from the subsequent order, even if she did not raise such a challenge in an appeal from the initial order.

***

The continuing nature of a juvenile court‘s duty to inquire into a child‘s Indian status appears on the face of section 224.3(a). As noted, that provision reads: “The court . . . ha[s] an affirmative and continuing duty to inquire whether a child for whom a petition under Section 300 . . . has been . . . filed is or may be an Indian child in all dependency proceedings and in any juvenile wardship proceedings if the child is at risk of entering foster care or is in foster care.” (§ 224.3(a).) The plain language of this provision — declaring an “affirmative and continuing duty” that applies to “all dependency proceedings” — means that the juvenile court in this case had a present duty to inquire whether Isaiah was an Indian child at the April 2013 proceeding to terminate Ashlee‘s parental rights, even though the court had previously found no reason to know Isaiah was an Indian child at the January 2012 proceeding to place Isaiah in foster care. Because the validity of the April 2013 order is necessarily premised on the juvenile court‘s fulfillment of that duty, there is nothing improper or untimely about Ashlee‘s contention in this appeal that the juvenile court erred in discharging that duty.

Briefs here.

Motion and Briefing for Partial Summary Judgment in Oglala Sioux v. Fleming (Van Hunnik)

July 6, 2016July 6, 2016Kate Fort

This filing is part of the ICWA class action case in South Dakota over the interpretation of 25 USC 1922 (emergency jurisdiction):

The third reason why this Court’s ruling on § 1922 has been inoperative is because the State’s Attorney for Pennington County, Defendant Mark Vargo, and the person Mr. Vargo has assigned to handle abuse and neglect cases in Pennington County, Deputy State’s Attorney Roxanne Erickson, see Erickson Dep. at 5-7, is failing to properly employ the federal standard. Indeed, Mr. Vargo’s interpretation of § 1922 threatens to forever prevent Plaintiffs from obtaining the benefit of this Court’s ruling on § 1922.6 The instant motion for partial summary judgment seeks to remove this final obstacle to the implementation of § 1922 in Defendants’ 48-hour hearings.

Plaintiffs deposed Ms. Erickson on May 25, 2016. Ms. Erickson testified that she interprets the word “harm” in § 1922’s standard “physical damage or harm” as including emotional harm. Id. at 131 made that ‘harm’ would also include emotional harm to the child. . . . [T]hat is how I would read it, that you have to show some form of harm which could include emotional harm.”). Thus, Defendant Vargo continues to use the state standard rather than the federal standard, given that Ms. Erickson interprets the federal standard to authorize DSS to consider emotional harm in determining whether to seek continued custody of an Indian child at the 48-hour hearing.

Motion for Partial Summary Judgment

Memorandum in Support of S.J.

Affidavit in Support of Motion

Statement of Undisputed Facts

ICWA Published Notice Case out of Michigan

June 30, 2016Kate Fort1 Comment

Here.

Given the multiple references in the record to possible Cherokee heritage, the DHHS had adequate information to make an “initial determination” that C.J. “may be a member” of the Cherokee tribe, implicating a duty to “exercise due diligence to contact” the Cherokee tribe “in writing so that the tribe may verify membership or eligibility for membership.” MCL 712B.9(3) (emphasis added). This was not done. Furthermore, assuming that the DHHS was “unable to make [such] an initial determination” relative to the Cherokee tribe, there is no indication in the record, nor does the DHHS argue on appeal, that the tribe or tribes located in Kalamazoo County were given written notification, which is a minimal requirement under the final sentence in MCL 712B.9(3).FN9 Indeed, the DHHS does not even present an appellant argument under MCL 712B.9(3), despite respondent’s partial reliance on the provision. Accordingly, MCL 712B.9(3), along with 25 USC 1912(a) and MCL 712B.9(1), serves as a basis to order conditional reversal in regard to C.J. On remand, notice must be sent to the Cherokee tribe and, if one exists, to any tribe or tribes in Kalamazoo County.

As for FN9, where the Michigan Court of Appeals admits it does not know if there is a tribe in Kalamazoo County–if only there was a way to find out that information.

Thanks to everyone who sent this one in.

Now Published Case out of California on Application of ICWA to Eligible Children

June 22, 2016June 22, 2016Kate Fort

Here. (original unpublished opinion we posted last week). Appellants requested this opinion be published, so the published opinion is here.

We’d like to point out that the fact that mother was a minor and a dependent of the court meant that the state should have been treating MOTHER’S own case as an ICWA case, which does not seem to have happened (and if you’re keeping track, yes, I’ve now used italics, allcaps, AND red ink on this one).

In this case, BOTH the Red Cliff Band of Lake Superior Chippewa AND the Bad River Band of Lake Superior Chippewa Tribe responded to the Department’s notice. Both Bands stated the children were eligible for enrollment, and Red Cliff asked for more information. Mother was a minor and a runaway from her placement. But instead of sending the information, or following up to assist in getting the children enrolled, or provide active efforts, the Department requested the juvenile court find that ICWA did not apply. Which the juvenile court did. Specifically:

Our record discloses no further action after November 2013, until an interim review report, dated April 22, 2014, stated, “[i]t is respectfully requested that the Court make a finding as to the children’s Indian Child Welfare Act Status.” The report further stated that ICWA “does or may apply” as each child might be an Indian child in the Chippewa tribe and was ICWA “eligible” (capitalization & boldface omitted). SSA proposed the court find “ICWA does not apply,” and the juvenile court’s minute order, dated April 22, 2014, contains the finding, “ICWA does not apply.” In a minute order dated June 19, 2014, the juvenile court again stated: “Court finds ICWA does not apply.”

The Court of Appeals held:

Given the above cited authorities, the juvenile court erred by finding ICWA did not apply. Not only did insufficient evidence support that finding, but also two tribes responded to SSA’s ICWA notice, by stating that the children were eligible to enroll in them. The court was thereafter required to proceed as if the children were Indian children.

Under these circumstances, we must reverse the order terminating parental rights and remand with directions for the juvenile court to order SSA to make active efforts necessary to secure tribal membership for the children. (In re K.M. (2015) 242 Cal.App.4th 450, 458–459.)

Preliminary Report on from California’s ICWA Compliance Task Force

June 21, 2016Kate Fort2 Comments

Prelim Final – CA ICWA TF Report 6.10.2016

Press Release

SACRAMENTO – Insufficient services, severe underfunding, barriers preventing tribal participation and inadequate reunification efforts have undermined the effectiveness and promise of the Indian Child Welfare Act (ICWA) in California, according to a preliminary report from a Task Force of tribal leaders from across the state, working independently to apprise the California’s Attorney General’s Bureau of Children’s Justice of these inadequacies.

The ICWA Compliance Task Force’s report recognizes that efforts have been undertaken to overcome cultural, procedural and funding challenges, but these ongoing obstacles continue to severely limit the implementation of ICWA in California, resulting in devastating impacts to Indian children, their families and their tribes.

Link to Official Federal Register for ICWA Final Rule

June 14, 2016June 15, 2016Kate Fort3 Comments

Here. The actual rule starts at 81 Fed. Reg. 38864.

Also, now word searchable and only 100 pages (well, with three columns on each page and a font size that makes me happy I finally got reading glasses).

Chronicle of Social Change Article on Native Foster Home(s) in L.A.

June 14, 2016Kate Fort

Here.

In 1978, Congress passed the Indian Child Welfare Act (ICWA), which was meant to keep Native American families together, after foster care and adoption practices had seen thousands of Native children taken from their families, ancestral lands and culture to be placed in non-native homes. That law created a system of “preferred placements” for Native children who enter care. The first choice is to place children with family members, followed by members of the same tribe and finally Native foster parents from other tribes. The last resort is placement in non-native homes.

But the federal government has never compelled states to share how well they satisfy that “preference,” leaving little or no data to indicate who is doing a good job placing Native children in Native homes.

The reporting that does exist is spotty at best.

In 2005, the United States Government Accountability Office (GAO) surveyed all 50 states and Washington D.C. about their ability to identify Native children in the system who were subject to ICWA in 2003.

“Only five states—Oklahoma, Oregon, Rhode Island, South Dakota, and Washington—were able to provide these data,” according the GAO report.

It doesn’t appear that reporting on ICWA compliance improved much in the subsequent years.

In 2015, Casey Family Programs, one of the largest charitable foundations in all of child welfare, tried to ascertain ICWA compliance in a brief entitled “Measuring Compliance with the Indian Child Welfare Act.”

“Although cross-jurisdictional and collaborative efforts are emerging, compliance measurement remains characterized by relatively small, idiosyncratic efforts,” the thin report reads. “Empirical study results are scattered, inconsistent, and highly specific to the state and jurisdiction being examined.”