ICWA – Page 67 – Turtle Talk

NICWA Conference: Workshops for Legal Professionals

February 18, 2015Kate Fort

The National Indian Child Welfare Association’s (NICWA) 33^rd Annual Conference: Protecting Our Children National American Indian Conference on Child Abuse and Neglect features a wide range of workshops for legal professionals looking to expand their knowledge of ICWA, including Looking Forward: Policy and Practice to Protect Against the Adoptive Couple v. Baby Girl Decision and many others.

There will also be a legal professionals coffee hour sponsored by ILPC and TICA, on Monday, April 20^th at 5:30 pm. NICWA’s own ICWA expert Addie Smith, Kate Fort from the ILPC, and other leaders in the field of federal Indian law will be in attendance. Come and see us!

Agenda is here.

Federal Court Challenge to Onondaga Nation ICW Jurisdiction Defeated

February 18, 2015Matthew L.M. Fletcher

Here are the materials in Pitre v. Shenandoah (N.D. N.Y):

12-5 Onondaga Nation Motion to Dismiss

20-5 Onondaga County Motion to Dismiss

34-2 Oswego County Motion to Dismiss

45 DCT Order

Montana Supreme Court ICWA Case

February 16, 2015February 17, 2015Kate Fort

Here.

We conclude that Mother received fundamentally fair procedures prior to the termination of her parental rights. She never raised any objection to the lack of a formal adjudicatory hearing, and her stipulations reflect her assent to the determination that H.T. was abused or neglected. The child’s Tribe was notified of the proceedings at the early stages, indicated its desire to monitor the case, and did not participate after it received appropriate, timely notice of the termination hearing. Proper expert testimony was presented at the termination hearing. Because the District Court applied the wrong statutory standards in its final order, however, its judgment is vacated. We remand for entry of a new order on
the issue whether Mother’s parental rights should be terminated.

Three (Unpublished) California ICWA Cases

February 9, 2015February 9, 2015Kate Fort

One notice opinion involving relationships with the Pala Band of Mission Indians and perhaps a Cahuilla tribe, but of course, the department would have to send notice to determine that.

A second opinion holding the rules requiring CPS to help enroll a child in her tribe (Cherokee) as active efforts are valid

Consistent with this state interest in protecting an Indian child’s interest in tribal membership, rules 5.482 and 5.484 impose an affirmative duty on the juvenile court and the county welfare department to make an active effort to obtain tribal membership for a child when the tribe has notified the county welfare department that the child is eligible. To the extent the rules require CPS to make a reasonable, active attempt to obtain tribal membership for a child, we conclude the rules do not expand or conflict with the state or federal statutory definition of an Indian child. The rules’ requirement that CPS “provide active efforts under rule 5.484(c) to secure tribal membership for the child” (rule 5.482(c)) furthers the objective of ICWA and has no bearing on the ICWA definition of “Indian child.”

***

CPS received four requests to complete an enrollment application, beginning in December 2012, and still had not done so over six months later. The record does not show any reason for CPS not providing the Tribe with a completed, signed enrollment application by the time of the section 366.26 hearing in June 2013.

We therefore conclude CPS failed to comply with rules 5.482(c) and 5.484(c) by not taking reasonable, active steps to secure tribal membership for the children. Such error was not harmless. Active efforts to obtain membership for the children likely would lead to the children becoming Tribe members subject to ICWA protections, and would enable the Tribe to intervene if it so chose.

Finally, a fairly standard ICWA notice case, where even after the following, the parents were asked in court to stipulate that this was not an ICWA case.

In this case, Father provided the name and contact information for his uncle who he believed could provide more information about the children’s grandmother who was alleged to have Cherokee ancestry. There is no evidence in the record the Agency contacted the uncle. Further, the agency did not respond to the repeated requests from the Cherokee Nation for additional information. The Agency failed to make reasonable efforts to obtain any additional family history. Under these circumstances, we find the ICWA notice was inadequate because the Cherokee Nation was deprived of a meaningful opportunity to determine if M.S., E.S., and A.S. were Indian children.

FBA Webinar TODAY: Native Service Members, Veterans, and the ICWA

January 28, 2015Matthew L.M. Fletcher

Native Service Members, Veterans, and the ICWA
TODAY
1:00-2:00 p.m. EST

The recent Supreme Court decision, Adoptive Couple v. Baby Girl, focused on the application of the Indian Child Welfare Act (ICWA) to adoptions. A key fact not mentioned by the Court in its decision was the role of the biological father’s military service in the case. From the adoption attorneys who took advantage of the timing of his deployment to Iraq, to the placement of the child with the adoptive couple during his deployment, the biological father had an uphill battle to gain custody of his own child when he returned from deployment. In addition, the particular limitations of an active duty service member regarding travel and pay were disregarded entirely by both the Court and the media covering the case.

Presenter:
Kathryn E. Fort, Staff Attorney, Indigenous Law and Policy Center, Michigan State University College of Law (view bio here)

CLE Credit: 1 credit hour (pending)

Idaho SCT Decides ICWA Active Efforts Case

January 27, 2015Matthew L.M. Fletcher

Here is the opinion for In re Jane Doe.

An excerpt:

Jane Doe appeals from an order terminating her parental rights to her son, TSD. Because TSD is an “Indian child” as that term is defined by the Indian Child Welfare Act, the magistrate court was required to make findings in addition to those required by Idaho law. Among other findings, the Department of Health and Welfare (“DHW”) was required to satisfy the court that it made “active efforts” to “prevent the breakup of the Indian family.” On appeal, Doe argues that the magistrate court erred in finding that DHW made such efforts and erred in failing to make that finding by clear and convincing evidence.

And:

25 U.S.C. section 1912(d) requires that a party seeking termination of parental rights with respect to an Indian child “shall satisfy” the court that active efforts to prevent the breakup of the family have been made, not that the party show by clear and convincing evidence that such efforts have been made. The magistrate court stated that it was satisfied that DHW made active efforts to prevent the breakup of the family. In doing so, it made the finding required by 25 U.S.C. section 1912(d).

National Council for Adoption ICWA Webinar

January 15, 2015Kate Fort2 Comments

Here. Addie Smith of NICWA will be doing the presentation, which is a very good thing.

via A.H.

Materials in Adoptive Couple v. Baby Girl

January 7, 2015Kate Fort

In response to a request, we’ve created a page to collect law review articles, bar journal articles, and cases after Adoptive Couple. It is a work in progress.

If you’re interested, bookmark this link.

Split Montana SCT Affirms Denial of Indian Child Welfare Matter’s Transfer to Blackfeet Tribe

January 6, 2015Matthew L.M. Fletcher2 Comments

Here is the opinion and the various briefs in In the Matter of S.B.C.:

Appellant Brief — Blackfeet Tribe

Appellant Brief — Father

Appellant Brief — Mother

Appellee Brief — Response to Father

Appellee Brief — Response to Tribe

Appellee Brief — Response to Mother

Reply — Blackfeet Tribe

Reply Brief — Father

Reply Brief — Mother

Montana SCT Opinion

Excerpts:

N.B. (Birth Mother) and S.B.C. (Biological Father) appeal from the order entered by the Fourth Judicial District Court, Missoula County, terminating both parents’ rights to their minor child, S.B.C, Jr. (S.B.C), and granting the Department of Public Health and Human Services, Child and Family Services Division (Child Services) permanent legal custody with right to consent to adoption. The Birth Mother and Biological Father also challenge the District Court’s order denying transfer of jurisdiction to the Blackfeet Tribal Court. The Blackfeet Tribe (Tribe) has filed a cross-appeal likewise challenging the denial of its motion to transfer jurisdiction to the Blackfeet Tribal Court and the termination of Biological Father’s parental rights. We affirm.

And:

Lastly, the Tribe argues the District Court improperly considered the socio-economic conditions of the Tribal Court. Subsection (c) of the Guidelines prohibit the consideration of the “[s]ocio-economic conditions and the perceived adequacy” of the tribal court system in making a determination of good cause. 44 Fed.Reg. 67591. In an attempt to demonstrate that the court based its decision on the inadequacy of the Tribal Court system, the Tribe draws our attention to a number of assertions the District Court made in its findings of fact and conclusions of law. The District Court remarked throughout its findings of fact and conclusions of law that the Tribe “chose to sit on its hands and delay seeking jurisdiction over [S.B.C] for tribal financial reasons.” Further, the court insinuated that the Tribe believes its children are sacred “only when it is in its best financial interests to do so.”

From the dissent:

I disagree with the majority’s analysis of the “advanced stage” guideline. The State filed its termination petition on March 6, 2013. The Tribe, having intervened early in the case, moved to transfer jurisdiction on April 10, 2013, thirty-five days later. The District Court order faulted the Tribe for seeking transfer after “all the critical court proceedings [were] completed and decisions made,” yet the District Court had not conducted a hearing nor made a decision to terminate the parents’ rights. The hearing was not held until September 10, 2013, and the order of termination was not signed until January 15, 2014, eight months after the motion to transfer was filed. This situation does not implicate the dangers the “advanced stage” rule is designed to protect against and there is no indication of manipulation by any party.

And:

Finally, I agree with the majority that the District Court’s repeated statements that the Tribe “sat on its hands” until it had a financial reason to seek jurisdiction were inappropriate. The BIA Guidelines specifically provide that a state court cannot base the “good cause” determination on “socio-economic conditions and the perceived adequacy of tribal social services or judicial system.” 44 Fed.Reg. 67,591. These statements reflect, at best, a refusal to comply with the Guidelines and, at worst, a strong bias against the Tribe and the Tribal judicial system. Such statements have no place in the District Court’s order and were highly inappropriate.