ICWA

Nebraska Supreme Court Decides Transfer to Tribal Court ICWA Decision

Kate Fort2 Comments

Here.

In a 4-3 decision (though all the justices unanimously would overturn the lower court denial of transfer), the Court uses the 2015 Guidelines and the Nebraska ICWA to overturn the lower court decision not to transfer based on the late stage of the proceedings, and denies the State’s attempt to use best interests in a jurisdictional determination:

In our consideration of whether good cause existed to overrule the motion to transfer, we find the amended BIA guidelines persuasive and instructive. The BIA guidelines were amended during this appeal, and we find them applicable to the case at bar. We hold that a determination that the proceeding is at an advanced stage is no longer a valid basis for finding good cause to deny a motion to transfer jurisdiction to a tribal court. We conclude that the overruling of the motion to transfer denied Appellant a just result.

***

We decline the State’s invitation to change our holding in In re Interest of Zylena R. & Adrionna R., 284 Neb. 834, 825 N.W.2d 173 (2012), for several reasons. First, we note that the amended BIA guidelines expressly provide that it is inappropriate for state courts to conduct an independent analysis of the best interests of the Indian child in determining placement preferences. While this preclusion of a best interests analysis did not specifically refer to transfers of cases to tribal courts, the BIA guidelines further state that whenever a parent or tribe – seeks to transfer the case to tribal court, it is presumptively in the best interests of the Indian child to transfer the case to the jurisdiction of the Indian tribe. Second, we find that the context of the U.S. Supreme Court’s statement in Adoptive Couple v. Baby Girl, supra, did not indicate that the Court intended to impose the best interests standard on motions to transfer.

Since ICWA was passed, there have only been fourteen cases where the appellate court reverses the lower court and orders transfer (out of 133 transfer cases total). There have been 9 cases the appellate court has reversed the lower court’s denial and ordered a hearing consistent with the decision.

The State also engaged in some shenanigans regarding the timing of the procedures:

The juvenile court found that the State had met its burden of showing good cause because the proceeding was at an advanced stage. It reasoned that usually, the date for determining whether the case was at an advanced stage would be the date of the filing of a motion to terminate parental rights. Because the State withdrew its motion for termination of parental rights on January 6, 2015, the court concluded that May 16, 2013, was the date of the State’s petition for adjudication. Using May 16, 2013, as the starting date, it concluded that the proceeding was at an advanced stage.

The juvenile court expressed concern that an Indian parent could play “an ICWA trump card at the eleventh hour” to transfer the case to tribal court. But we point out that the State’s dismissal of its motion to terminate parental rights to avoid a transfer leaves an Indian child suspended in uncertainty. If the State sought a termination of parental rights, the party seeking transfer could file a new motion to transfer and the State could again dismiss the termination proceeding. The juvenile court’s conclusion that the matter was in an advanced stage stemmed from the State’s voluntary dismissal of the termination proceeding.

Finally, there is an extensive partial concurrence and dissent joined by three Justices, explaining that the Court’s reliance on the 2015 Guidelines is due to their alignment with the Nebraska ICWA (most recently amended in 2015), and a lengthy discussion of how Nebraska should define “good cause” in the transfer provision. Ultimately, the dissent/concurrence stated:

In summary, I agree with the majority that the mere advanced stage of the proceeding should no longer be good cause to deny a motion to transfer to tribal court. But because we announce a significant change in the law today, I respectfully disagree with the majority’s disposition of this case, and suggest the better disposition would be to vacate, and remand for further proceedings, and in doing so, I would provide further guidance on the applicable standard of review, the appropriate quantum of proof, and the proper parameters of good cause to deny a transfer under ICWA and NICWA. For these reasons, I both concur and dissent in the opinion of the court.

Unpublished Decision from Alaska Declining to Apply 2015 ICWA Guidelines Provision on Expert Witnesses

Matt Newman1 Comment

Here.

Even before the holding, the Court brushes aside some pretty disturbing facts, including:

OCS noted that Casey might be affiliated with the Asa’carsamiut Tribe and that the children were believed to be Indian children affiliated with the Tribe. . . . In September the Tribe attempted to intervene. Because the Tribe’s documents were ambiguous about Casey’s tribal membership and the Tribe did not respond to the trial court’s request for clarification, in November the trial court denied the intervention motion without prejudice. At about the same time the trial court granted OCS’s motion to remove the children from Kent’s home.

In August 2013 OCS petitioned to terminate Kent’s and Casey’s parental rights, stating that the children were “not believed to be Indian children” and setting out the grounds for termination.  In its order terminating Kent’s parental rights, the trial court first stated that it had made findings at various stages of the case that the children were not Indian children under ICWA, that no party had presented contrary information at trial or asked the court to reconsider its earlier rulings, and that the children were not Indian children under ICWA.

On the Expert Witness issue:

When determining whether a witness satisfies ICWA’s “qualified expert witness” requirement, we have considered the Bureau of Indian Affairs(BIA) Guidelines for State Courts; Indian Child Custody Proceedings (1979 BIA Guidelines). . . . In February 2015 — after the termination trial in this case but before the remand — the BIA adopted Guidelines for State Courts and Agencies in Indian Child Custody Proceedings (2015 BIA Guidelines) to “supersede and replace the guidelines published in 1979.” Less than a month later the BIA published proposed new ICWA regulations to “complement [the] recently published Guidelines for State Courts and Agencies in Indian Child Custody Proceedings.” The proposed regulations have not yet been adopted.

OCS argues that “because the BIA is in the process of adopting ICWA regulations whose final content is unknown, it would be premature for this court to consider overturning Alaska law on ICWA experts before knowing what the BIA’s final word on qualified experts is.” We agree. Final regulations have not yet been adopted and we thus cannot determine whether they will include such a requirement in the future. We decline to overrule our longstanding precedent based on the possibility that BIA regulations will require a different result in the future.

Matter Involving Removal Jurisdiction under ICWA in Child Custody Dispute involving “Pembina Nation Little Shell Band of North America” Member

Matthew L.M. Fletcher

Here are the materials so far in Disanto v. Thomas (S.D. Ga.):

12-1 Motion to Remand

22 Opposition

23 Reply

32 Magistrate Report

 

Law Review Article on Principal Briefs in Supreme Court Cases (Inc. Adoptive Couple v. Baby Girl)

Kate Fort

Here.

Given the decision of NCFA to appeal the recent win in the Eastern District of Virginia to the Fourth Circuit this may be useful (if frustrating) reading.

As always, Adoptive Couple v. Baby Girl materials, including briefs, law review articles, and cases, are here.

ICWA Case out of Idaho Supreme Court

Kate Fort1 Comment

Here.

In this case, the trial court ordered the Shoshone-Bannock Tribes to pay half of the cost of the child’s attorneys fees, sanctioned the Tribes for not turning over membership information in response to the adoptive couple’s motion to compel, barred the Tribes from presenting information on the child’s status as an Indian child, barred the Tribes from enrolling the child, and granted attorney’s fees request from the adoptive couple.

In 2015.

On August 12, 2015, the trial court granted the Does $863 in costs and $35,000 in attorney fees against the Tribes, and further granted Child’s counsel $6,056.25 in fees against the Tribes. The Tribes initially challenged the lower court’s discovery and sanction rulings, as well as its ultimate grant of petition for adoption and attorney fees. The Does cross-appealed, challenging the Tribes’ intervention in the matter. The Tribes have since dropped their challenge to the adoption and the Does correspondingly dropped their challenge to the Tribes’ intervention. What remains now is the Tribes’ assertion that the lower court’s discovery rulings, injunction, sanctions, grant of fees, and failure to find Child an Indian child were in error. The Does request attorney fees on appeal pursuant to Idaho Appellate Rule 11.2(a) and Idaho Code section 12–121.

All of these were ultimately overturned by the Idaho Supreme Court in the decision.

Tulalip Tribes and State Sign MOA for Child Welfare Cases

Victoria Sweet

MOAs and MOUs are tools many Tribes are using to proactively work with a State to help tribal families remain intact or at least keep tribal children and youth closely connected with their Tribes.

Tulalip and the state of Washington have signed a formal MOA in child welfare cases. Here is a pdf copy of the MOA

Word copies  (instead of pdf) of the agreement are available by writing to tribal attorney Michelle Demmert.  (See Tulalip Tribes legal department website for contact information)

Here is a copy of a news article highlighting the impact of this new MOA here

From the article:

The signed agreement formalizes the government-to-government relationship between the Tribe and the State with child welfare cases. It’s based on the fundamental principles of the government-to-government relationship acknowledged in the 1989 Centennial Accord and recognizes the sovereignty of the Tribes and the State of Washington and each respective sovereign’s interests. What does this mean? It means the State of Washington now officially recognizes Tulalip has jurisdiction over Tulalip children wherever found and that Tulalip desires to assert its jurisdiction and authority to protect Tulalip children and keep families together whenever possible. . . .

Pursuant to the Indian Child Welfare Act and our sovereignty, the Tulalip Tribes have jurisdiction to handle all child abuse and neglect cases for our children. Some may be wondering, haven’t we always had that jurisdiction? The simple answer is no. In certain situations state agencies were able to, and would, circumvent the tribe altogether in cases involving allegations of child neglect or abuse. Now, with this agreement in place, the tribe can no longer be circumvented. Going forward, any time a state agency comes to investigate an allegation of child neglect or abuse, a beda?chelh case manager will be on the scene.

***

This agreement ensures Tulalip staff and representatives are always actively involved in any and all cases involving our children, and that we are taking the lead when the opportunity is there. The bottom line is we want our primary goal to be child safety, and to make sure any services or treatment families are receiving is defined by the tribe. That’s why this agreement also lends itself to the creation of a Tulalip Family Intervention Team (FIT), which will contact families of low-risk assessment and provide skill based services to parent their children, so that no court intervention is necessary.

FIT aims to keep families together and act as a proactive solution offering culture based services to families, while getting parents actively involved. It’s a way to handle things more traditionally between the Tribe and the families.

It may be an agreement of this nature is long overdue, but it took many days and long hours from individuals across several different tribal and state agencies to carefully craft and fine tune in order to get it right, not just for Tulalip children and families, but for all Native children and families. With Tulalip leading the way, there are sure to be multiple tribes who model their own government-to-government child welfare agreements after this one.

ICWA Placement Preferences Case out of Alaska

Kate Fort

Here.

The superior court again concluded that [grandparents] were not an appropriate placement because of their attitude and failure to give Caitlin’s medical equipment to OCS.

***

The superior court’s finding that the grandparents were an unsafe placement is supported by substantial evidence in the record. We therefore affirm the superior court’s decision to deny placement with [grandparents].

ICWA Placement Preference and Burden of Proof Case Out of Oklahoma Supreme Court

Kate Fort1 Comment

Here.

The Honorable Wilma Palmer, Special Judge, for the District Court of Tulsa County, ordered the transfer of a minor child S.A.W., from a foster home to a home compliant with the Indian Child Welfare Act. The State, natural father, natural mother, child, and foster mother appealed. The Court of Civil Appeals reversed the order of the district court and the Cherokee Nation sought certiorari. We previously granted certiorari. We hold that appellants failed to satisfy their burden that natural father was not a member of his tribe. The Cherokee Nation met its burden to show that the child was subject to the Indian Child Welfare Act. We hold that when a tribe fails to provide timely temporary foster care with an ICWA-compliant home and an ICWA-noncompliant family seeks a permanent placement, the trial court should consider harm to the child resulting from a tribe’s untimely motion to move the child to an ICWA-compliant home. We hold the proper standard for a party showing a need for an ICWA-noncompliant child placement is clear and convincing evidence, and that appellants met this burden. We reverse that portion of the trial court’s order directing an ICWA-compliant placement. We hold that the appellants’ additional arguments for challenging application of the ICWA are insufficient and affirm the trial court in part, and remand for additional proceedings.

 

Child Welfare Evidence Training at Pascua Yaqui Tribe in March

Sarah M Donnelly

Link to details and registration form here.

No charge for the seminar. Selected participants are responsible for their own airfare, accommodations, and meals.

Child Welfare Evidence Training will be repeated in three other venues regionally in 2016, as organized by the federal government. Current venues for future training include Montana and Michigan. One other site is to be determined in the southern region.

All applications must be submitted by FEBRUARY 12, 2016 to Mercedes Garcia at mercedes.garcia@pascuayaqui-nsn.gov. Participants will be notified by FEBRUARY 15, 2016, regarding their selection.

Determination of Indian Child Case out of New Mexico Court of Appeals

Kate Fort1 Comment

Here.

Based on the difficulties CYFD experienced in receiving evidence on Mother’s lineage and the Navajo Nation’s determination that Children are ineligible, we hold that Children are not eligible for enrollment with the Navajo Nation. Nevertheless, Father asserts that the status of Children does not need to be certain to implement the ICWA and the district court must only examine whether the ICWA possibly applies, relying on In re Desiree F., 99 Cal. Rptr. 2d 688 (Ct. App. 2000). We conclude that Desiree F. does not assist Father.