ICWA

NICWA Webinar on Updated BIA Guidelines

Kate Fort

This Friday at 10am PDT (1pm EDT). Register here. No cost.

A major development in tribal child welfare policy was announced on February 25, 2015. The Bureau of Indian Affairs announced that it had revised–effective immediately–the Guidelines for State Courts and Agencies in Indian Child Custody Proceedings for the first time since 1979. NICWA is hosting a free webinar on Friday, March 13, 2015, at 10 a.m. PDT to explain the revisions.

We encourage ICWA advocates, tribal and state child welfare workers, tribal and state attorneys, parents’ attorneys and judges to take the time to read the full updated guidelines. We also encourage discussion of these important changes to regularly scheduled meeting agendas, to hold new meetings and trainings to discuss these guidelines’ effects on their practice, and to disseminate these guidelines widely.

 

The Guardian Article on ICWA

Kate Fort

Fairly long read here.

Hanna is representing two South Dakota tribes in a class action lawsuit filed against state officials for systematically violating the act. Last week, the Bureau of Indian Affairs issues updated ICWA guidelines for state courts for the first time since 1979, specifically citing the lawsuit.

In December, US attorney general Eric Holder announced a new initiative to “actively identify state-court cases where the US can file briefs opposing the unnecessary and illegal removal of Indian children from their families and their tribal communities.” Holder promised to strengthen the act by ensuring compliance with the federal law with the caveat that “barriers erected over centuries of discrimination will not be surmounted overnight.”

Many native families and advocates say the commitment is long overdue. After decades of assimilation-oriented policies, ICWA was passed in 1978. By then, one in four Native American children were removed from their families and placed in boarding schools, adoption or foster care placements.

Despite the law’s intentions, the removal rate of all American Indian children increased to 35% over the following decade, 85% of whom were placed in non-Indian homes. Thirty-five years later, these children remain staggeringly overrepresented in state foster care placements across the country.

Thanks to MM for the heads up.

Michigan COA Opinion On ICWA, MIFPA and Adoptive Couple

Video Kate Fort

Here.

Big case out of Michigan’s Court of Appeals on an adoption with a very complicated fact pattern. The case was argued by MSU Law/ILPC alum Karrie Wichtman. The case held that MIFPA’s placement preferences in an adoption hold, even while ICWA’s failed under Adoptive Couple. It should also be noted that this was the analysis Jack Trope & Addie Smith followed in their article on Adoptive Couple and state ICWA laws.

MIFPA differs from ICWA in that it does not give a preference to eligible parties over ineligible parties. Rather, MIFPA requires that, absent good cause, the adoptive placement must be either with a member of the child’s extended family, a member of the Indian child’s tribe, or an Indian family, in that “order of preference.” MCL 712B.23(2). The record demonstrates that the Arbutantes have no familial connection to KMN; they are not connected to the Tribe, and they are not an Indian family. Therefore, absent a good cause finding, MIFPA precluded the trial court from placing KMN with the Arbutantes.

 

Unfortunately, the COA did not reinstate the abuse and neglect petition that started the case in the first place, leaving the child in legal limbo.

Reported California COA Opinion Reverses Termination of Parental Rights for Violation of ICWA

Matthew L.M. Fletcher

Ventura County Human Services Agency initially told the juvenile court that ICWA doesn’t apply to Alaska Natives (or, as stated in the opinion, “Eskimo families”).

Here is the opinion in In re H.G.:

In re HG — B255712

The UPDATED BIA ICWA Guidelines

Kate Fort2 Comments

Updated Guidelines!

From the website here. Press release here.

The new Guidelines, not updated since 1979, look really good. For example, there are fifteen examples of active efforts, which are explicitly separated out from ASFA findings. There is some clear language around determining putative fathers. They clarified 1922’s emergency removal provisions. They took out the “advanced stage of the proceedings” exception for transfer to tribal court. And quoting now,

There is no exception to the application of ICWA based on the so-called “existing Indian family doctrine.”

Thank you to everyone for all of the work on this. This is huge.

Also, thanks to C.N. for the heads up.

Additional Call-in For Tribes on AFCARS Proposed Rules

Kate Fort

If you missed Friday’s call, here is another opportunity to call in. In addition, the government is taking written comments on the rule changes through April 10. This is a chance to get the federal government to add ICWA-related reporting requirements to AFCARS, which applies to states and some tribes. By adding ICWA reporting requirements, the federal government has the opportunity to force states to better track ICWA compliance.

Colleagues:

 As we announced earlier this week, the Children’s Bureau will hold national informational calls with stakeholders, states and tribal representatives on the Notice of Proposed Rule Making (NPRM) on the Adoption and Foster Care Analysis and Reporting System (AFCARS) that was published in the Federal Register on Monday, February 9, 2015.

The first call with states and stakeholders was held on Wednesday, February 18th.  The second call for states and stakeholders will take place on Friday, February 20, 2015 from 1:00-2:00 p.m. Eastern. 

We are pleased to announce that we have added a second informational call for tribal representatives.  The two informational calls with tribal representatives will take place on Friday, February 20, 2015 from 3:00-4:00 p.m. Eastern and Wednesday, March 4, 2015 from 3:00-4:00 p.m. Eastern. 

 Attached is the presentation that we use during the calls.  This presentation is the same for all calls and will be available on the Children’s Bureau website shortly.  The agendas with updated call-in information are attached.  The content of the agendas has not changed.

This is a reminder that these calls provide an overview of the NPRM for informational purposes only.  We will not take questions during any of the calls.  If you wish to comment on the NPRM, please submit comments to www.regulations.gov on or before April 10, 2015.  The text of the NPRM can be found here: http://www.gpo.gov/fdsys/pkg/FR-2015-02-09/pdf/2015-02354.pdf

 Please forward this information to interested parties.

 

ICWA Notice Case Out of New Jersey

Kate Fort

Here.

To minimize the delay in securing permanency and stability for Ann, the trial court shall ensure that the notices are sent forthwith. The judgment terminating parental rights shall be deemed affirmed if after being served with the requisite notices under the ICWA: (1) no tribe responds to the notices within the time provided under the ICWA; (2) no tribe determines within the time allotted under the ICWA that Ann is an Indian child as defined by the ICWA; or (3) the court determines, after the tribes have been given an opportunity to intervene, that the ICWA does not to apply to this matter. If Ann is determined to be an Indian child under the ICWA, the judgment terminating parental rights shall be vacated and the trial court shall hold further proceedings consistent with the ICWA. All proceedings shall be conducted as expeditiously as practicable in accordance with the overarching goal of attaining permanency for Ann.

NJ appellate court reverses ICWA case because of failure to notify Cherokee Nation

Ann Tweedy

Here and here.

Wyoming Supreme Court Applies Adoptive Couple Case in Termination Proceedings

Kate Fort1 Comment

Here.

We note that Appellant does not provide any discussion of the U.S. Supreme Court’s decision in Adoptive Couple v. Baby Girl. In any event, however, we would agree with the reasoning of the Supreme Court and conclude that it applies with equal, if not greater, force in the present case. In this case, Appellant has not asserted that he has any Native American heritage that would qualify ARW as an “Indian child” under the ICWA. Rather, he claims that ARW “might be” an “Indian child” because ARW’s mother is “half Apache.” ARW’s mother, however, relinquished her parental responsibilities to Appellees soon after ARW’s birth, and she allowed them to exercise her custody and visitation rights after she was divorced from Appellant. Further, ARW’s mother consented to termination of her parental rights in the adoption proceedings. Accordingly, as in Adoptive Couple v. Baby Girl, the “breakup” of an Indian family would not be precipitated by the termination of Appellant’s parental rights. We find no error in the district court’s conclusion that the ICWA did not apply to the termination proceedings.

 

Call for Tribes on Changes to Adoption and Foster Care Analysis and Reporting Systems

Kate Fort

Call in information and agenda here.

This is an information session [for tribes] for the Children’s Bureau to provide an overview/summary of the Adoption and Foster Care Analysis and Reporting System (AFCARS) Notice of Proposed Rulemaking (NPRM), which was published in the Federal Register on February 9, 2015

From NICWA’s press release:

A Notice of Proposed Rule Making on AFCARS was published in the Federal Register on Monday, February 9, 2015, announcing that ACF intends to change some of the AFCARS reporting requirements. The full text of this Notice of Proposed Rule Making and proposed changes can be found here and an overview is available here.

Currently, there is no requirement for states to report data related to the Indian Child Welfare Act (ICWA) as a part of AFCARS. In addition, AFCARS does not require states to identify children in their care who are eligible for ICWA’s protections. Without this data there is no national information about how and when ICWA is followed in state child welfare systems