Two Additional Unpublished Notice Cases out of California

Apparently this is the week for notice cases with particular cause for posting.

Here. While the court in this case remands for notice violations in a guardianship case, it sadly does not also hold that Wikipedia is not a solid source for determining whether a tribe is federally recognized or not.

Here. And in this case, the appellate court wrote:

We begin with a concern not addressed by either party. California Rule of Court, rule 5.481(b) mandates that in asection 300 proceeding, the social services agency must send a “Notice of Child Custody Proceeding for Indian Child.” This form is designated ICWA–030. The ICWA–030 form sent by the Bureau here, however, differs from the ICWA–030 form available on the Judicial Council website.7 Significantly, that ICWA–030 form, which consists of 10 pages, requests identifying information on the biological mother (section 5c), the mother’s biological mother (section 5c), and the mother’s biological grandmother (section 5d).8 The ICWA–030 used by the Bureau, which was 12 pages, appears at first glance to be the same, but upon closer examination materially differs. It requests information on the biological mother (section 5c) and the mother’s biological mother (section 5c), but it then skips to the mother’s biological great grandmother and great, great grandmother (section 5d). Nowhere does it contain a section for information on the mother’s biological grandmother.9 By using what may be a faulty ICWA–030, the Bureau completely omitted all information on R.K.’s grandmother—Robin’s great grandmother.10
*6 Additionally, although the ICWA–030 requested information regarding R.K.’s mother, the Bureau omitted all information for her, stating “No information available” for every single category, including her name. This is, quite simply, inexplicable. At the very least, we can only assume that an inquiry of R.K. would have revealed her mother’s name and, quite likely, additional information called for by the notice. But it is also probable that the Bureau could have obtained the information from R.K.’s mother herself. At the outset of the dependency proceeding, R.K. informed the social worker that her mother was involved in her own dependency proceeding. Additionally, R.K.’s mother was present at the June 5, 2013, 12–month review hearing, as evidenced by the reporter’s transcript from the hearing. At one point, the court interrupted the proceeding to ask audience members to identify themselves, and one person responded, “I’m the mother of [R.K.]” Both of these circumstances suggest that R.K.’s mother was accessible had the Bureau made an effort to speak with her. Additionally, the Bureau omitted the current and former addresses and the place and date of birth for R.K.’s great, great grandmother.

Published (!) Notice Case out of Illinois

Here.

A long, complicated, aggravating notice case from the Illinois court of appeals.

Unpublished Notice Case Out of Michigan

Here.

In this case, the Kalamazoo court did not make an inquiry on the record.

Respondent accurately notes that the circuit court failed to make the required inquiry on the record. However, respondent suffered no prejudice as a result. There is no record evidence to support that the child had any Native American heritage.

Unpublished Notice Case Out of California

Here.

In one line, this case summarizes why the Department’s failure to do notice properly harms kids and families:

[Infant]’s adjudication hearing was initially set for October 2013 but was continued approximately five months (due to the Department’s failure to properly serve notice under the ICWA) during which time the infant remained out of mother’s care.

And, for the record, in this case, “mother and maternal relatives had tribal enrollment numbers, and mother claimed father had Cherokee heritage. None of the ICWA notices sent reflected all of this information.”

ICWA and MIFPA Training in Macomb County

Today we did a (long) lunch session on ICWA and MIFPA for state court personnel in Macomb County. Thanks to the Macomb criminal and juvenile law committees for inviting us.

Kate Fort, Michelene Eberhard (chair of the criminal law committee), and Maribeth Preston from SCAO.

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Unpublished Michigan Ineffective Assistance of Counsel ICWA Case

Here.

Respondent-father appeals as of right from the trial court’s order terminating his parental rights to his child pursuant to MCL 712A.19b(3)(c)(ii) (other conditions exist that cause the
child to come within the court’s jurisdiction), (3)(g) (failure to provideproper care or custody), and (3)(j) (reasonable likelihood of harm). For the reasons set forth in this opinion, we affirm in part but remand this matter to the trial court to consider whether to conduct a Ginther hearing or to resolve the issues set forth herein by making a determination as to whether trial counsel was ineffective such that there exists a reasonable
probability that, but for counsel’s unprofessional errors, the result would have been different.

Unpublished Illinois ICWA Case on Termination Standard

Here. Fairly long case to be unpublished, and odd reading for an ICWA case–separating out the language of “beyond a reasonable doubt” from the additional standard that “continued custody of the child by the parent . . . is likely to result in emotional or physical damage to the child.” Rather, the court held:

 The conduct by both parents shows the absence of concern, interest, and responsibility as to their children under both the clear-and-convincing and reasonable-doubt standards.

NICWA Job Posting: ICWA Legal Advisor

Here: ICWA Legal Advisor

The National Indian Child Welfare Association (NICWA) in Portland, Oregon, is recruiting for a full-time ICWA legal advisor. The ICWA legal advisor at NICWA is responsible for managing the dissemination of information relating to Indian child welfare to the general public and to NICWA membership. NICWA offers a generous benefit package. The position is open until December 5.

Nebraska Supreme Court ICWA Decision on Active Efforts

Here.

As covered on Friday by NICWA and others, the Nebraska Supreme Court ruled on the active efforts standard. Specifically,

 The sole issue presented is whether the active efforts standard of 25 U.S.C. § 1912(d) of the federal Indian Child Welfare Act of 1978 (ICWA)1 and § 43-1505(4) of the Nebraska Indian Child Welfare Act (NICWA) applies when a juvenile court physically places an Indian child with his or her parent but awards another entity legal custody of the Indian child. The question is whether this disposition in an involuntary juvenile proceeding is “seeking to effect a foster care placement” within the meaning of ICWA/NICWA. Upon further review, we agree with the Nebraska Court of Appeals and hold that at any point in an involuntary juvenile proceeding involving an Indian child at which a party is required to demonstrate its efforts to reunify or prevent the breakup of the family, the active efforts standard applies in place of the reasonable efforts standard applicable in cases involving non- Indian children.

Kansas Court of Appeals Holds Evidence of ICWA Notice May Be Filed After Parental Rights Termination Hearing

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

In re MH

An excerpt:

Father is correct that the Act requires that a party seeking to terminate the parental rights of a child that may be Native American must follow specific procedures for notifying the child’s potential tribe about a termination-of-parental-rights hearing. See 25 U.S.C. § 1912(a) (2012). Though the best way for a court to ensure compliance with the Act is for the State to file the notices it has sent and the return receipts it has received with the district court before a termination hearing, the State’s failure to do so here doesn’t require reversal. The State filed the required notice and receipts after the hearing in this case, and those filings prove that the district court complied with the Act.