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.
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.”
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.
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 thechild 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 reasonableprobability that, but for counsel’s unprofessional errors, the result would have been different.
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 Fairly long case to be unpublished, and odd reading for an ICWA case–separating out the language of “beyond a reasonable doubt” from the additional standard that “continued custody of the child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.
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.
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.
Here is the opinion in In re M.H.:
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.
Loa Porter (Department of Children and Families, State of Wisconsin), Patina Park Zink, Angela R. Gebhardt (University of Nebraska at Lincoln – Center on Children, Families, and the Law), Mark Ells (University of Nebraska-Lincoln), and Michelle I. Graef, Ph.D. (University of Nebraska at Lincoln – Center on Children, Families, and the Law) have posted “Best Outcomes for Indian Children” on SSRN. It was previously published in Child Welfare.
Here is the abstract:
The Wisconsin Department of Children and Families and the Midwest Child Welfare Implementation Center are collaborating with Wisconsin’s tribes and county child welfare agencies to improve outcomes for Indian children by systemically implementing the Wisconsin Indian Child Welfare Act (WICWA). This groundbreaking collaboration will increase practitioners’ understanding of the requirements of WICWA and the need for those requirements, enhance communication and coordination between all stakeholders responsible for the welfare of Indian children in Wisconsin; it is designed to effect the systemic integration of the philosophical underpinnings of WICWA.
Here is the opinion in Dinwiddie Dept. of Social Services v. Nunnally.
The dissenters point out that 14 (now 15) state courts have addressed whether to use the best interests of the child analysis:
Most states that have confronted the issue we face today have held that a “best interests” consideration is inappropriate under the “good cause” analysis in Section 1911(b). Eight states have conclusively adopted this position, including Colorado, Illinois, Minnesota, Missouri, Nebraska, New Mexico, North Dakota, and Texas.2Link to the text of the note People ex rel. J.L.P., 870 P.2d 1252, 1258 (Colo. Ct. App. 1994); In re Armell, 550 N.E.2d 1060, 1065-66 (Ill. App. Ct. 1990); In re Child of: R.L.Z. and R.G.L, 2009 Minn. App. Unpub. LEXIS 1015, at *14-16 (Minn. Ct. App. 2009) (unpublished); C.E.H. v. R.H., 837 S.W.2d 947, 954 (Mo. Ct. App. 1992); In re Interest of Zylena R. v. Elise M., 825 N.W.2d 173, 184-86 (Neb. 2012) (overruling its decision to allow a “best interests” consideration in In re Interest of C.W., 479 N.W.2d 105 (Neb. 1992)); In re Guardianship of Ashley Elizabeth R., 863 P.2d 451, 456 (N.M. Ct. App. 1993); In re Interest of A.B. v. K.B., 663 N.W.2d 625, 633-34 (N.D. 2003); Yavapai-Apache Tribe, 906 S.W.2d at 169-71.
Only a minority of six states allow a “best interests” consideration in the Section 1911(b) “good cause” analysis, including Arizona, California, Indiana, Montana, Oklahoma, and South Dakota.3Link to the text of the note In re Maricopa Cnty. Juvenile Action No. JS-8287, 828 P.2d 1245, 1251 (Ariz. Ct. App. 1991); In re Alexandria P., 228 Cal. App. 4th 1322, 1355-56 (Cal. Ct. App. 2014); In re Adoption of T.R.M., 525 N.E.2d 298, 308 (Ind. 1988); In re T.S., 801 P.2d 77, 79-80 (Mont. 1990); Carney v. Moore (In re N.L.), 754 P.2d 863, 869 (Okla. 1988); In re Guardianship of J.C.D., 686 N.W.2d 647, 650 (S.D. 2004).
Four other state courts have acknowledged the issue, but avoided resolving it because the issue was not properly before the court. Ex parte C.L.J., 946 So.2d 880, 893-94 (Ala. Civ. App. 2006); In re C.R.H., 29 P.3d 849, 854 n.24 (Alaska 2001); In re J.L.A., 2007 Kan. App. Unpub. LEXIS 1154, at *2-6 (Kan. Ct. App. 2007) (unpublished); In re Guardianship of J.O., 743 A.2d 341, 348-49 (N.J. Super. Ct. App. Div. 2000).
Fodder for a law student note….
Kate posted the lower appellate court decision here.
Turtle Talk 
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