ICWA

GAL Attempts to Appeal Determination ICWA Applies to Nebraska Supreme Court

Kate Fort

Here. Child’s GAL argued Adoptive Couple v. Baby Girl meant that ICWA/NICWA should not apply to the case (because mother had tried to create a guardianship with a cousin who lived on the reservation and thus “the case would not result in the dissolution of the Indian family”).

The GAL appealed from an order merely finding that ICWA and NICWA applied to the adjudication proceeding. But the juvenile court took no action implementing or contravening the heightened protections afforded by the acts. Although we are sensitive to the need to expedite juvenile matters, without some dispositive action, we see no impact upon the juvenile’s substantial rights. Consequently, the juvenile court’s order does not constitute a final order within the meaning of § 25-1902. In the absence of a final order, we must dismiss the appeal for lack of jurisdiction. Because these proceedings have already been delayed for an inordinate time, we have expedited the disposition of this appeal

Qualified Expert Witness ICWA Case out of Michigan Court of Appeals

Kate Fort1 Comment

Here.

In this case, the trial court explicitly recognized that Hillert, the only expert witness at the termination hearing, did not support termination and specifically testified that returning AP andDP to Stenman’s care would not likely result in serious emotional or physical damage to either child. Nonetheless, considering the other evidence presented, the trial court determined that returning AP and DP to Stenman’s care would result in such damage beyond a reasonable doubt. In so doing, the trial court essentially disregarded Hillert’s testimony, contrary to the plain language of 25 USC 1912(f), MCL 712B.15(4), and MCR 3.977(G)(2). Accordingly, we conclude that the trial court failed to adhere to the requirements of ICWA and its Michigan counterparts, and remand for further proceedings with respect to AP and DP.

The testimony of a qualified expert witness under ICWA is part of the necessary proof to demonstrate beyond a reasonable doubt that return of the child to her mother will cause serious emotional or physical damage. Without that testimony, the state has not met its burden to terminate parental rights. If the state cannot provide a QEW that agrees with termination, the court cannot terminate parental rights. In situations like this, where the QEW not only testifies that he does not agree with the termination in this case, nor in termination generally as a tribe, this ought to force the state to look to other long term permanency solutions that don’t require the termination of parental rights, like Michigan’s long term juvenile guardianships, or at ways other states have addressed this issue (like California).

Unpublished ICWA Related Opinion out of California

Kate Fort

Here.

There’s a fair amount going on in the description of this case (active efforts, involvement of the tribe, CA statutory tribal adoption), but we were interested in this near the end of the opinion:

Mother relies on the tribal representative’s response to the termination of reunification services. In an October 23, 2014, e-mail correspondence, the tribal representative wrote, “[W]e … believe that it was a HUGE disservice to the family to discontinue active efforts. Here in the State of Alaska, the department must provide active efforts right up until the day of reunification, guardianship is finalized or termination of parental rights.”
The tribal representative’s concern appears to have been the California practice of discontinuing reunification services at the review hearing held several months prior to the selection and implementation hearing. Whether a “disservice” or not, the juvenile court terminated services at the point contemplated by our dependency scheme.

ICWA Notice Case out of Washington Court of Appeals

Kate Fort

Here.

The Blackfoot/Blackfeet notice issue comes up pretty regularly. Depending on what court the parent is in, the Department may or may not be ordered to notice Blackfeet even if a parent says Blackfoot. In this case, the Washington Court of Appeals said the was no need to notice Blackfeet when dad said Blackfoot and Cree. According to the opinion, notice went out to “several Cherokee, Cree, and Hopi Indian tribes.”

Additional Comments on Proposed ICWA Regulations

Kate Fort

More than 1,000 additional comments were posted this week to regulations.gov on the proposed ICWA regulations, bringing the total number of comments to 1,869. We have updated the tribal nations comments page here, and the organizations page here.

Here are a few additional individual comments we noted as we scrolled through them:

361_-_Erdrich,_Karen_Louise
942_-_Jones,_Laura
919_-_Spotted_Elk,_Sheldon
2097_-_Blanchard,_Evelyn
298_Hirsch_Bertram
1525_-_Houska,_Tara
886_-_Lidot,_Tom
1280_-_Drobnick,_Heidi_A
Sweet_Victoria

Placement Preference Case out of Nebraska Court of Appeals

Kate Fort

Here.

In conclusion, we find that good cause exists for a deviation from statutory placement preferences under the ICWA and that the trial court did not err by denying the Tribe’s motion to change placement. Further, the record supports a showing by a preponderance of the evidence that active efforts were made by DHHS to prevent the breakup of the Native American family. Therefore, we affirm the order of the trial court.

The Court cited to the ’79 Guidelines and state law to find ICWA’s placement preferences do not require “strict placement,” but are a “statutory preference” to be allowed “absent good cause to the contrary.”

Michigan Supreme Court Denies Review in ICWA Transfer Case

Kate Fort

Order here.

Original decision from court of appeals transferring the case to tribal court is here.

Constitutional Challenge to Parts of Minnesota Indian Family Preservation Act

Matthew L.M. Fletcher1 Comment

Here is the complaint in Doe v. Jesson (D. Minn.):

1 Complaint

An excerpt:

25. MIFPA defines an “Indian child” as “an unmarried person who is under age 18 and is: (1) a  member of an Indian tribe; or (2) eligible for membership in an Indian tribe.” Minn. Stat. 260.755, subd. 8. By contrast, ICWA defines an Indian child as either “(a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the biological child of a member ofan Indian tribe.” 25 U.S.C. 1903(4) (emphasis added).

26. Many Indian tribes have only blood quantum or lineage requirements as prerequisites for membership. See, e.g., Paul Spruhan, The Origins, Current Status, & Future Prospects ofBlood Quantum as the Definition ofMembership in the Navajo Nation, 8 Tribal L.J. 1, 5 (2007); see also Rev. Const. & Bylaws of the Minnesota Chippewa Tribe, Minnesota, art. II, 1(c) (child eligible ifborn to a member and child is at least one quarter Minnesota Chippewa Indian blood). The Mille Lacs Band of Ojibwe is a member of the Minnesota Chippewa Tribe. Id. at art. III.

27. Unlike ICWA, the Minnesota Indian Family Preservation Act, facially and as applied, gives Indian tribes the right under the color of state law to interfere with voluntary, private adoptions.

ICWA/PL-280 Case out of Idaho Supreme Court

Kate Fort

Here.

Difficult case involving extreme domestic violence, a step-parent adoption, tribal court orders, state court orders, and interpretation of exclusive tribal jurisdiction under ICWA and PL-280. The challenge to state jurisdiction was brought by bio-father whose parental rights were terminated, which ultimately lead to the Court’s holding:

We find this reasoning to be persuasive and determine that Public Law 280 and Idaho Code section 67-5101 constitute an exception to ICWA’s exclusive jurisdiction mandate. Thus, we reject Doe’s argument that the magistrate court erred in exercising jurisdiction in this case.

Adoption Industry Sues to Challenge New ICWA Guidelines

Matthew L.M. Fletcher

Here is the complaint in National Council for Adoption v. Jewell (E.D. Va.):

Complaint

Oops. Kate posted this forever ago.