Here. The case cites to the In re K.S. case here.
The court found a way to splice the burden of proof issue, finding that the beyond a reasonable doubt standard only applies to the finding that continued custody of the child by the parent is likely to result in serious emotional or physical damage to the child, not to the termination of parental rights.
Here. From Kalamazoo County.
Of note: There are six tribes in Michigan alone that should be noticed if a parent family in a “Chippewa tribe,” and DHHS noticed one of them. MIFPA requires the notice of the tribe in the county where the case arises, though the Pokagon Band service area does not include Kzoo county, while the other two (unnoticed) Potawatomi tribes do cover the county. Finally, it’s not clear from the opinion why Cherokee was noticed at all.
There is no question that the ICWA and MIFPA notice requirements were triggered early in these proceedings when father indicated at an April 2013 preliminary hearing that he might have some family membership—specifically, through his brother—in the “Chippewa tribe.” There is some indication in the record that respondent-mother also claimed potential Indian heritage, although it is unclear what tribes, if any, she identified. Because “sufficiently reliable information” of possible Indian heritage was provided, the trial court had “reason to know” that an Indian child could be involved, thus triggering the ICWA and MIFPA notice requirements. 25 USC 1912(a); MCL 712B.9(1); In re Morris, 491 Mich at 109.
The record indicates that DHS sent notifications to several different tribes, including the Eastern Band of Cherokee Indians, the United Keetoowah Band of Cherokee, the Cherokee Nation, the Sault Ste. Marie Tribe of Chippewa Indians, and the Pokagon Band of Potawatomi Indians. DHS also sent a notification to the Midwest Bureau of Indian Affairs. On June 18, 2013, both the Eastern Band of Cherokee Indians and the Sault Ste. Marie Tribe of Chippewa Indians responded and indicated that the child was not eligible for membership. The Cherokee Nation also responded with a request for more family information, although there is no indication that further information was thereafter provided. There is also no indication that the remaining tribes or the Bureau of Indian Affairs responded. Based on the responses that had been received, the trial court indicated at a November 2013 review hearing that the ICWA/MIFPA inquiry was “at an end.”
We conclude that the record sufficiently evidences DHS’s compliance with the ICWA and MIFPA notice requirements. DHS sent notifications to several tribes, as well as the Bureau of Indian Affairs. On appeal, father does not identify any other tribes that should have been notified. Moreover, while father takes issue with the fact that DHS apparently never provided further information to the Cherokee Nation, he does not identify what further information could have been provided, nor does he argue that he provided the information requested to DHS but that DHS failed to forward it to the Cherokee Nation. Moreover, we note that DHS does not have an affirmative responsibility “to conduct independent research to obtain a parent’s detailed genealogical information.” In re Morris (On Remand), 300 Mich App 95, 105; 832 NW2d 419 (2013). Finally, despite father’s argument to the contrary, the trial court did in fact make a conclusive determination that the child was not an Indian child by noting that the issue was “at an end” and by leaving unchecked, in its subsequent orders, the box indicating that the proceedings involved an Indian child. There was no plain error affecting substantial rights.
Here is DHHS’s map of tribal service areas in Michigan.
Here. Out of the Second Appellate Division, L.A. County. The State has the ongoing duty to send updated notices when they receive additional information.
The issue presented in this case is whether there is a duty under the ICWA to send updated notices to the relevant tribes when additional information regarding the child‟s ancestors (such as previously omitted birthdates, aliases, and/or alternate spellings) is obtained after the original ICWA notices were sent. We conclude there is such a duty. Because the Los Angeles County Department of Children and Family Services (the Department) in this case failed to send updated notices after it obtained additional information, we reverse the order terminating the parental rights of appellant W. H. (mother) with regard to her daughter, I.B.,2 for the limited purpose of compliance with the ICWA.
The deadline is coming up 9/1. Please submit if you have a qualifying research project and also feel free to share widely:
The Indian Nations and Indigenous Peoples Section of the American Association of Law Schools (AALS) invites paper proposals on the following topic. How do Indian Tribes, First Nations, and other Indigenous Peoples regulate same-sex marriage, same-sex relationships, and adoption and foster parenting by same-sex couples and LGBT individuals? What role does evidence of Tribal culture and tradition, if any, play in these decisions? Additionally, what are the processes by which Tribes change their laws with respect to same-sex relationships? More broadly, we are interested in the ways in which Tribes, First Nations and other Indigenous Peoples regulate sexuality and family structure.
Please send proposals of 500 to 1000 words summarizing a paper or work-in-progress you would present on an AALS panel on these issues. The selected panelists will be invited to present their work in a joint program of the Indian Nations and Indigenous Peoples and the Law and Anthropology Section, which will be co-sponsored by the Family Law Section. The Program will be held at the AALS Annual Meeting, January 6-10, 2016. Selected papers will be published in the William Mitchell Law Review. Please submit your proposal on or before September 1, 2015 to Michalyn Steele, Chair-Elect, at steelem@law.byu.edu. Questions can also be directed to Ann Tweedy, Chair.
The Judges’ Page, a newsletter published by the National CASA Association and the National Council of Juvenile and Family Court Judges, has just released the summer 2015 issue. The entire issue is devoted to the theme Tribal Issues in Dependency Court.
The newsletter is available here.
From Judge Dean Lewis (ret):
The National Council of Juvenile and Family Court Judges (NCJFCJ) and the National CASA Association are partners in publishing The Judges’ Page. Both organizations are deeply committed to effective court advocacy for American Indian and Alaska Native children and families involved in dependency court proceedings. This issue of The Judges’ Page addresses the importance of compliance with the Indian Child Welfare Act of 1978 (ICWA) from the legal as well as the cultural perspective. The issue provides effective educational tools for ICWA implementation and offers examples of collaborations between state and tribal courts.
Readers should be aware that the Bureau of Indian Affairs (BIA) issued updated Guidelines for State Courts and Agencies in Indian Child Custody Proceeding effective February 25, 2015. The updated Guidelines are intended to promote compliance with ICWA’s stated goals and to provide best practices for ICWA compliance by state courts and child welfare agencies. In addition, on March 20, 2015, the Bureau of Indian Affairs proposed Regulations for State Courts and Agencies in Indian Child Custody Proceedings. Recently, Congress passed two bills to help protect Native American Children: The Native American Children’s Safety Act and the Alyce Spotted Bear and Walter Soboleff Commission on Native Children Act. The Executive branch and the Congress are to be commended for their efforts to clarify the original intent of the ICWA, and to promote the health, safety, and well-being of Native Children.
The NCJFCJ Tribal Caucus identified key topics of concern to be addressed in this issue of The Judges’ Page. Our thanks to Victoria Sweet, Program Attorney at NCJFCJ, for seeking input from the Caucus and securing numerous articles for this issue. Donna Goldsmith was tasked with developing a primer for judges and advocates on key issues for implementation of the ICWA, and we appreciate her undertaking that project. Our thanks also to Judge Len Edwards and Jennifer Walter of the Center for Families, Children & the Courts of the Judicial Council of California for securing and writing articles that exhibit the remarkable best practices instituted throughout that state. And, to all of the authors who volunteered their time to contribute to this issue, thank you.
Judge William A. Thorne, Jr. (ret), describes the background that led to the adoption of the Indian Child Welfare Act and its relevance to treatment of all children impacted by the child welfare process.
Donna Goldsmith, JD, informs readers of the ICWA legal requirements and provides a primer of how to proceed in ICWA cases utilizing the provisions of the BIA updated Guidelines for State Courts and Agencies in Indian Child Custody.
Victoria Sweet, JD, gives an overview of the updated BIA Guidelines for State Courts and Agencies in Indian Child Custody Proceedings and proposed Regulations for State Courts and Agencies in Indian Child Custody Proceedings.
Mary Beth Jager, MSW, Rachel Rose Starks, MA, Adrian T. Smith, JD, MSW, and Miriam Jorgensen, PhD, collaborated to share the history of tribal child welfare systems and lawmaking which have been recognized by the ICWA as the governance
mechanism by which a tribe establishes and implements jurisdiction for the wellbeing of Indian children.
Judge Leonard Edwards (ret.) discusses the ICWA active efforts requirement and distinguishes active efforts from reasonable efforts.
Victoria Sweet, JD, describes the commitment of NCJFCJ to implementation of the ICWA. She introduces readers to NCJFCJ publications and includes the recommendation of NCJFCJ that state court judges apply the recently revised Bureau of Indian Affairs ICWA Guidelines.
Paige Beard, Director of Program Development at the National CASA Association, provides background on the National CASA Association’s commitment to training and supporting CASA volunteers who serve Indian
children through Tribal Courts and Dual State Court/Tribal Court Programs.
Judge Korey Wahwassuck reports on how the joint tribal-state jurisdiction in Itasca County, MN, has proven effective in promoting lifetime healing while protecting public safety, and how this model can be used as a tool for reducing the number of children in out-of-home placement, as well as speeding reunification.
The California Judicial Council established a Tribal/State Projects Unit in 2009 as part of the Center for Families, Children & the Courts. This unit staffs the California Tribal Court-State Court Forum (forum), which was formed in 2010. Judges and staff share their perspectives on their collaborative work locally and statewide through the forum.
Judge Leonard Edwards (ret.) discusses the ICWA active efforts requirement and distinguishes active efforts from reasonable efforts.
Justice Jill Elizabeth Tompkins reviews the provisions of the ICWA and the updated Guidelines for State Courts and Agencies in Indian Child Custody Proceedings provisions regarding transfer of an Indian child’s case from a state court to a tribal court from the perspective of the tribal court.
Jack Trope, JD, and Sarah L. Kastelic, PhD, set out the ICWA placement preferences. They explain the limitation on the “good cause” exception as established in the updated Guidelines for State Courts and Agencies in Indian Child Custody Proceedings.
Claire Chiamulera of the ABA Center on Children and the Law shares her recommendations in “Best Practice for Native American and All Families” reprinted from Child Law Practice.
Kathryn E. Fort, JD, offers insight and best practices on ICWA cases involving military families.
Jessica Jorgensen, JD, offers her perspective on the issue of “good cause” to deviate from ICWA placement preferences.
Web Resources is an article that provides readers with the websites of organizations that produce educational materials on the ICWA as well as resources and assistance in implementation of the ICWA.
Opinion here. Court reversed termination and remanded for notice to Navajo Nation.
Classic example of the passive voice here:
The responsibility for compliance with ICWA falls squarely and affirmatively on the court and the Department. (Welf. & Inst.Code, § 224.3, subd. (a); In re Antoinette S. (2002) 104 Cal.App.4th 1401, 1409.)3 Both Robert and the paternal grandmother stated that there was native American heritage in the family. As early as the detention hearing, the juvenile court ordered the Department to make the necessary inquiries and send the required notices. Thereafter, as everyone acknowledges, the ball was dropped.
Court reversed and remanded for ICWA notice compliance. Opinion here.
The recently updated “Guidelines for State Courts and Agencies in Indian Child Custody Proceedings” (Guidelines) provide that tribes have the sole jurisdiction and authority to determine whether a child is eligible for membership. (Guidelines, 80 Fed. Reg. 10146-02 (Feb. 25, 2015), § B.3(b) & (c), p. 10153.) Tribes that are not notified of dependency proceedings cannot assert their rights under ICWA. (In re Marinna J. (2001) 90 Cal.App.4th 731, 739.) “Under these circumstances, it would be contrary to the terms of the Act to conclude . . . that parental inaction could excuse the failure of the juvenile court to ensure that notice under the Act was provided to the Indian tribe named in the proceeding.” (Ibid.) Thus, parents in a dependency proceeding are permitted to raise ICWA notice issues on appeal even where no mention was made of the issue in the juvenile court. (In re Alice M. (2008) 161 Cal.App.4th 1189, 1195.) Accordingly, we reject the Agency’s assertion that Mother forfeited any ICWA issue when she failed to object to the juvenile court’s ICWA finding.
Document here.
Support the Implementation ofthe Indian Child Welfare Act (ICWA). The Indian Child Welfare Act (ICWA) is a federal law that seeks to keep American Indian children with American Indian families. Congress passed ICW A in 1978 in response to the alarmingly high number of Indian children being removed from their homes by both public and private agencies. The intent of Congress under ICWA was to “protect the best interests of Indian children and to promote the stability and security of lndian tribes and families” (25 U.S.C. § 1902). The implementation of ICW A requires support for tribal and state courts, social workers and foster care. ICWA also calls for services that keep families together. These could be family assistance services, home improvement programs, alternatives to incarceration and employment support services. Agencies should focus on programs that support the capacity building and programmatic support necessary to implement ICWA.
Via GJ.
A conference will be held July 29-31, 2015 at the Indian Pueblo Cultural Center in Albuquerque, NM.
Day one will be devoted to discussing ICWA, its original intent, and current court cases around the country that have impacted ICWA compliance.
Day two is focused on the term “competent jurisdiction” and how it has been interpreted. Participants will discuss ways that tribes can help educate parties in the legal system to understand cultural and sovereign rights.
Day three will explore the potential for implementing peacemaking in tribal legal systems, particularly in the context of children in need of care.
Full agenda here: Agenda For July 2015 ABQ.
Here.
Very difficult case with extensive testimony. Child was ultimately placed with distant cousins instead of grandparents with a history with the department. The court found good cause to deviate from the tribe’s preferences of matrilineal relatives.
Because there is so much testimony in this opinion, it gives a window into the way the lower courts are making these decisions, and how the court understands how children connect to their tribal communities:
[Foster parent] already encouraged [three year old child] to look at Chickasaw language flashcards and language applications, to make beaded necklaces, and to hunt, fish, and pick berries.
The Department’s report recommending good cause to deviate from placement preferences included this very frustrating statement:
It is unfortunate that that [sic] tribe is so distant and has not had the opportunity to meet Autumn and the people she considers to be parents. If they had, they may decide that it is in actuality in their tribe’s best interest to avoid placement disruption and the possibility of creating an attachment disorder in this young child who currently has such a bright future.
Turtle Talk 
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