ICWA

Burden of Proof ICWA Case Out of Arizona Court of Appeals

Kate Fort

Here.

Based on these authorities, we are persuaded that the
heightened standard of “clear and convincing” evidence should apply when Arizona courts decide whether good cause exists to deviate from ICWA foster or adoptive placement preferences. Because it is unclear what standard of proof the juvenile court applied here, we remand the good cause determination for reconsideration. Although we need not reach some of the parties’ remaining arguments, we address certain issues likely to recur on remand.

The authorities cited are 2015 Guidelines and case law from across the states.

Update on Goldwater (ICWA Challenge) Filings

Kate Fort

DOJ filed their reply to Plaintiffs response on Defendants’ motions to dismiss. Arizona also filed a strong reply. Filing is completed in this matter, and a hearing on the motion to dismiss will be held on December 18th.

Plaintiffs filed a response to the amicus briefs from Casey Family Programs et al and NCAI et al. In addition, Citizens Equal Rights Alliance also filed an amicus brief in support of the Plaintiffs’ motion to certify the class.

The ICWA Legal Defense Memo has been updated and is available here.

Op-Ed On ICWA from Reps. Cole & McCollum

Kate Fort

From The Hill Congress Blog:

Prior to the passage of the Indian Child Welfare Act (ICWA) in 1978, it had become apparent that Native American children were systematically being taken from their homes and either put up for adoption or placed in foster care. The rate at which Native American children were taken was especially alarming to tribal nations that depend on their youth to preserve a truly unique heritage. Further, the disproportionate rate of these separations raised suspicions that they were based less in decisions about the well-being of children and perhaps more about separating youth from their tribal culture. In a repeat of the forced boarding school era, tribal nations were once again being told that to save their children, they had to be removed from their communities and cultures.

 

 

Three Recent California ICWA Cases

Kate Fort

Reported case on notice, where the social service agency attempted to fix the notice issues while the case was on appeal. Fourth District remanded for proper notice.

An unreported case where the trial court refused to apply ICWA because of a lack of written communication from the tribe, though the agency received verbal confirmation of the children’s membership. The case was reversed, also by the Fourth District.

Finally, an unreported case using the “family lore” argument to find there was no notice necessary. Haven’t seen a family lore case in California since 2011. Those cases were all out of the Second District, while this one is out of the First.

ICWA Case out of Texas Court of Appeals Declines to Extend Baby Girl

Kate Fort1 Comment

Here is the opinion.

The Court reversed a termination of parental rights because there was no qualified expert witness testimony. The State argued that because of Adoptive Couple v. Baby Girl, the section of ICWA governing burden of proof and QEW (25 U.S.C. 1912(f)) did not apply. The Court rejected this argument.

In addition, the Court used the 2015 Guidelines to determine if a proper QEW testified:

The Bureau of Indian Affairs has created guidelines for state courts to use in Indian child custody proceedings. Bureau of Indian Affairs Guidelines for State Courts and Agencies in Indian Child Custody Proceedings, 80 Fed.Reg. 10147 (February 25, 2015). These guidelines do not have binding legislative effect, but Texas appellate courts have utilized the Guidelines when interpreting ICWA. See In re K.S., 448 S.W.3d 521, 529 (Tex.App.–Tyler 2014, pet. denied) (utilizing the earlier version of the Guidelines); In re J.J.C., 302 S.W.3d 896, 900 (Tex.App.–Waco 2009, no pet.)(same); In re R.R., 294 S.W.3d at 217 (same); see also Yavapai-Apache Tribe v. Mejia, 906 S.W.2d 152, 163-64 (Tex.App.–Houston [14th Dist.] 1995, orig. proceeding). The updated BIA Guidelines address the applicable standards of evidence.

The updated BIA Guidelines address the applicable standards of evidence. Section D.3(b) states:

The court may not order a termination of parental rights unless the court’s order is supported by evidence beyond a reasonable doubt, supported by the testimony of one or more qualified expert witnesses, that continued custody of the child by the parent or Indian custodian is likely to result in serious harm to the child. [Emphasis added].

80 Fed.Reg. 10156. Thus, the challenged finding cannot stand unless it is supported by the testimony of a qualified expert witness.

Section D.4 pertains to the qualifications an expert witness must possess.

***

After reviewing the entire record, we conclude that the challenged finding is not supported by the testimony of a qualified expert witness. The caseworker, Lizette Frias, was not shown to possess the required knowledge or expertise. There is no evidence that Frias is a member of the Oglala Sioux tribe or another tribe, or that she is recognized by any tribe as having substantial experience in the delivery of child and family services to Indians. Further, there is no evidence that she has knowledge of the prevailing social and cultural standards and childrearing practices within the Oglala Sioux tribe.

Appellant Brief
State Brief

Navajo Nation Motion for Intervention and Motion to Dismiss in ICWA Goldwater Litigation

Kate Fort

Intervention motion here.

Motion to dismiss here.

Additional documents in A.D. v. Washburn here.

Briefing Completed in Gila River Indian Community Motion to Intervene in ICWA Goldwater Litigation

Kate Fort

47 – Gila River Motion to Intervene

72 – OppositiontoGilaIntervention

76 – Gila River Reply in Support of Motion to Intervene

Plaintiffs in the case also filed their response to DOJ’s motion to dismiss. A hearing on the matter is scheduled for December 18.

Collected filings here.

California Court of Appeals Holds ICWA Doesn’t Apply Where Pala Band Member Child is Disenrolled During Adoption Proceedings

Matthew L.M. Fletcher

Here is the unpublished opinion in In re K.P.:

In re K.P.

An excerpt:

Michelle T., a member of the Pala Band of Mission Indians, contends that the juvenile court violated the Indian Child Welfare Act (ICWA), title 25 United States Code section 1901 et seq. and Welfare and Institutions Code section 224 et seq. by terminating her parental rights to her children, K.P. and Kristopher P., under section 366.26.
Throughout most of their dependency cases, K.P. and Kristopher were eligible for membership, or were enrolled, in the Pala Band of Mission Indians (Pala Band). At the children’s first section 366.26 hearing, the Pala Band did not consent to the children’s adoption and the juvenile court ordered a plan of guardianship. Several years later, when the children’s cases proceeded to a second section 366.26 hearing, the juvenile court learned that the Pala Band of Mission Indians had disenrolled K.P. and Kristopher, and others, on the ground that they lacked the blood quantum necessary for membership.
Michelle argues that in view of a pending appeal in the United States Court of Appeals for the Ninth Circuit challenging the validity of the Pala Band’s enrollment ordinance that resulted in the disenrollment of K.P. and Kristopher and the others, the juvenile court erred when it found that K.P. and Kristopher were not Indian children within the meaning of the ICWA and declined to apply ICWA’s substantive and procedural protections at the children’s second section 366.26 hearings. Michelle also argues that enrollment in a tribe is not required to be considered an Indian child, and that the Pala Band did not provide written confirmation that enrollment is a prerequisite for Pala Band membership.
We conclude that the juvenile court correctly ruled that the Indian tribe has the sole authority to determine its own membership and that the juvenile court must defer to the membership decisions of an Indian tribe. Under federal and state law, the Indian tribe’s membership determination is conclusive. The record shows that enrollment is a prerequisite for Pala Band membership, and that the Pala Band determined that K.P. and Kristopher are not members of its tribe. Therefore, the juvenile court did not err when it determined that K.P. and Kristopher are not Indian children within the meaning of the ICWA and terminated parental rights without applying ICWA’s heightened substantive and procedural protections. We affirm.

Reported ICWA Notice Case out of California

Kate Fort

Here

Here, the juvenile court properly inquired about Shahida’s Indian ancestry at each hearing, and the Department conscientiously interviewed several family members to obtain additional information. During these family interviews, the maternal great uncle informed the Department he had Creek and Seminole ancestry. The maternal grandmother also informed the Department she believed, based at least in part on photographs she no longer possessed, she had Blackfeet ancestry. The court found the Blackfeet claim insufficiently supported and, according to the Department, the Creek and Seminole ancestry too remote.
Neither explanation proffered by the court and the Department constitutes an adequate ground for failure to give notice of Kadence’s dependency case to the identified tribes. As to the remoteness of Kadence’s possible connection to the Seminole and Creek tribes, although the suggestion of Creek and Seminole ancestry was based on information about her great-great-great grandparents, nothing was presented to the juvenile court or included in the record on appeal concerning the membership rules for those tribes. It could well be, for example, that membership under tribal rules is passed to successive generations, as a matter of right, through bilineal or double descent without regard to intermarriage or blood quantum and that the absence of formal enrollment does not affect tribal membership. Under those circumstances Kadence could be an Indian child within the meaning of ICWA.(See Santa Clara Pueblo v. Martinez (1978) 436 U.S. 49, 72, fn. 21 [98 S.Ct. 1670, 56 L.Ed.2d 106 [Indian tribe is final arbiter of its membership rights] . . .

Briefing Completed in Nat’l Council for Adoption v. Jewell (Guidelines Litigation) on Motion to Dismiss

Kate Fort

Hearing on the matter is set for 11/13. Government’s Reply Brief here.

Even if BAF’s claims were not precluded by the Memorandum Opinion, however, they would fail in their own right. BAF does not have standing, either for itself or to assert the interests of unspecified birth parents, nor has it alleged any basis for this Court to conclude that its claims are ripe. If adoption proceedings are underway, then the Court should abstain from hearing the present suit or dismiss the declaratory relief as contrary to the Anti-Injunction Act. BAF cannot demonstrate that “legal consequences flow” from the Guidelines so as to render them reviewable because it concedes that Defendants do not enforce the Guidelines, and makes no argument that Defendants otherwise treat them as controlling. Nor does BAF cite any binding authority for the propositions that the Guidelines are race-based, that birth parents have a fundamental right to dictate the adoptive placement of their child, that ICWA exceeds the Indian Commerce Clause, or that non-binding Guidelines may commandeer state entities. For these reasons, and because they have not alleged a basis for relief under Bivens, Plaintiffs’ claims fail for lack of subject-matter jurisdiction and as a matter of law and must be dismissed.

Previous filings here. (documents 52, 56, 64, 67)