ICWA – Page 73 – Turtle Talk

This is a re-occurring and incredibly frustrating ICWA fact pattern–if the ICWA compliant placement is out of state, or far away from the parents, and the goal is reunification, it makes sense for the tribe and state to allow for a non-compliant ICWA placement near the parents. What happens, however, when reunification fails? As in this case, a court is often unwilling to remove the child from the home she has been in for anywhere from one to three years. Honest, actual, concurrent permanency planning could help with this, but while that is a best practice, it does not seem to be happening with any regularity at the state.

Concluding that the ICWA’s adoptive placement preferences do apply to this case, we then review the trial court’s order finding that the P.s failed to produce clear and convincing evidence of good cause to depart from those placement preferences. We determine that the court applied the correct burden of proof by requiring the P.s to prove by clear and convincing evidence that there was good cause to deviate from section 1915’s placement preferences. However, the court erroneously required the P.s to prove a certainty that Alexandria would suffer harm if moved, and failed to consider Alexandria’s best interests or her bond with the P.s in determining good cause.

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We recognize that a final decision regarding Alexandria’s adoptive placement will be further delayed as a result of our determination of the merits of this appeal. That delay is warranted by the need to insure that the correct legal standard is utilized in deciding whether good cause has been shown that it is in the best interest of Alexandria to depart from the ICWA’s placement preferences.

As also often happens, the parties start arguing about the very constitutionality of ICWA, making this case a “not as bad as it could have been” case–the court didn’t find ICWA is unconstitutional, nor does Adoptive Couple apply (as the de facto parents argued) to this fact pattern. And yet, the trial court decision placing the child with her extended family is still overturned based on the child’s best interest standard. Getting courts to acknowledge that the best interests of a child ought to include the child’s whole life, not just the one transition in front of the court at that moment, is both vital and seemingly impossible.

For the (depressing) record, here is Evelyn Blanchard writing the same thing in 1977 in The Destruction of American Indian Families, ed. Steven Unger (Association of American Indian Affairs 1977).

(Happy to post redacted briefs if we receive any)

NICWA Webinar on Oglala Sioux v. Van Hunnik by Stephen Pevar

August 15, 2014Kate Fort

Information here.

On August 27, 2014, members will join Stephen Pevar, senior staff attorney with the American Civil Liberties Union (ACLU), for this webinar as he gives an update on the ICWA compliance class action lawsuit, Oglala Sioux Tribe v. Van Hunnik. The lawsuit was filed by the ACLU against South Dakota state and local officials who have an alleged history of violating the ICWA, resulting in devastating ramifications for American Indian children and families in the state. Mr. Pevar will also discuss the overarching goals of the lawsuit and the implications this case has for ICWA. http://www.nicwa.org/membership/benefits/index.asp

To register, contact Ava Hansen NICWA’s member relations manager at ava@nicwa.org

DOJ Amicus Brief in SD ICWA Class Action Case

August 15, 2014August 21, 2014Kate Fort3 Comments

The United States came in strongly on the side of the tribes and tribal families for both the enforcement of ICWA and meaningful due process.

Here.

Thus, from the very start of an emergency removal, Section 1922 requires state courts, agencies, and officials to actively investigate and evaluate whether the emergency situation has ended. Given the statutory requirements for oversight and “immediate” action, this ongoing obligation cannot be deferred for weeks or months until the next scheduled hearing occurs.

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The interest that parents have in the custody of their children is not to be lightly interfered with, even following an emergency situation. While an emergency proceeding such as the 48- hour hearing may not permanently deprive parents of their custody rights, even a temporary deprivation of physical custody requires a prompt and meaningful hearing.

Memorandum in support of leave to file amicus here.

Motion for Leave to File here.

Update — The court granted the motion the next day:

123 DCT Order Granting US Motion

Previous coverage here.

Michigan COA Conditionally Reverses ICWA Matter for Lack of Proper Notice

August 11, 2014Matthew L.M. Fletcher1 Comment

Here is the opinion:

In re Mull

An excerpt:

In these consolidated appeals, respondent-mother S. Greene and respondent-father J. Mull each appeal the trial court’s order that terminated their parental rights. The court terminated respondent-mother’s parental rights to all four children under MCL 712A.19b(3)(b)(i), (g), (j), and (k)(iii), and terminated respondent-father’s parental rights to his three children under MCL 712A.19b(3)(b)(ii), (g), and (j). Because the trial court did not follow the precise notice requirements of the Indian Child Welfare Act (ICWA), we conditionally reverse the termination order with respect to both respondents only as to this issue, and remand for further proceedings consistent with this opinion.

Article on Native Adoptees

August 8, 2014Victoria Sweet

One of the greatest challenges that many of us encounter when trying to encourage better ICWA compliance is the lack of understanding of the impact of governmental policies on Native communities. In particular, people do not comprehend how many Native children have been adopted by families with no connection to their tribal communities nor do they understand the impact this has had on these children.

Al Jazeera America published a very nice article on this called “Lost Birds”.

For more than one hundred years, U.S. policies and practices separated Native American children from their families. Prior to 1978, when the Indian Child Welfare Act went into effect, Native American children were regularly plucked from their homes and sent to live with non-Natives. Some children grew up surrounded by love; others suffered enormous hardships. Many had a powerful desire to reconnect with the culture that they had lost.

In “Lost Birds,” we profile four adopted women who sought out their Native American roots

The link to the entire article is here.

Two Additional Links of Interest Regarding the Nebraska ICWA Truancy Case

August 5, 2014Kate Fort2 Comments

Here is the audio of the oral arguments for the case we posted on here.

And here is a UCLA Law Review Discourse (online) article on the problematic framing of truancy in general.

Nebraska Court of Appeals Overturns Lower Court Removing Child for Truancy Under ICWA

August 1, 2014Kate Fort2 Comments

Opinion here (from June 24).

On February 26, 2013, the juvenile court ordered Mischa to be placed into foster care and the case plan was modified to allow for liberal visitation of Mischa with her family. In reaching this decision, the court noted the parents’ argument that Neb. Rev. Stat. § 43-1505(5) (Reissue 2008) provides that foster care placement may not be ordered in the absence of a determination by clear and convincing evidence includ- ing testimony of qualified expert witnesses that continued custody by the parent or Indian custodian is likely to result in serious emotional and physical damage to the child. The court found that serious emotional damage would result to Mischa as a result of insufficient education. The court found, however, that even in the absence of such proof, the statute is unconstitutional as applied in this case, stating that “Indian children are entitled to no less educational opportunity than other children and accordingly, as applied in this particular case, such statute is unconstitutional to the extent that it would deny Mischa educational opportunity even in the absence of serious emotional and physical damage . . . .” The order was silent on whether active efforts had been provided to prevent the breakup of this family. Deanna and Chris subsequently perfected their appeal to this court.

Unpublished California ICWA Opinion Reversing for Non-Compliance

August 1, 2014August 1, 2014Kate Fort2 Comments

A long and sad opinion here, but a few things of note:

-as usual, Jay Treaty arguments are brushed aside.

-the State’s assumption that a claim of tribal membership is vague doesn’t mean ICWA might apply. And families might involve many tribes, from geographically diverse areas.

-there is or was a dedicated ICWA court or docket in Los Angeles County.

-the foster parents were not interested in helping with reunification in the slightest.