ICWA

Could Justice Breyer’s Concurrence Help Save Baby Veronica?

Matthew L.M. Fletcher4 Comments

Take a look at Justice Breyer’s concurrence. Last paragraph:

Third, other statutory provisions not now before us may nonetheless prove relevant in cases of this kind. Section 1915(a) grants an adoptive “preference” to “(1) a member of the child’s extended family; (2) other members of the Indian child’s tribe; or (3) other Indian families . . . . in the absence of good cause to the contrary.” Further, §1915(c) allows the “Indian child’s tribe” to “establish a different order of preference by resolution.” Could these provisions allow an absentee father to re-enter the special statutory order of preference with support from the tribe, and subject to a court’s consideration of “good cause?” I raise, but do not here try to answer, the question.

Presumably, the litigation will continue on remand to the South Carolina courts below.

 

Supreme Court Reverses and Remands South Carolina Supreme Court in Adoptive Couple v. Baby Girl

Kate Fort5 Comments

Opinion here. Written by Justice Alito.

ALITO, J., delivered the opinion of the Court, in which ROBERTS, C. J., and KENNEDY, THOMAS, and BREYER, JJ., joined. THOMAS, J., and BREY- ER, J., filed concurring opinions. SCALIA, J., filed a dissenting opinion. SOTOMAYOR, J., filed a dissenting opinion, in which GINSBURG and KA- GAN, JJ., joined, and in which SCALIA, J., joined in part.

***

This case is about a little girl (Baby Girl) who is classi- fied as an Indian because she is 1.2% (3/256) Cherokee. Because Baby Girl is classified in this way, the South Carolina Supreme Court held that certain provisions of the federal Indian Child Welfare Act of 1978 required her to be taken, at the age of 27 months, from the only parents she had ever known and handed over to her biological father, who had attempted to relinquish his parental rights and who had no prior contact with the child. The provisions of the federal statute at issue here do not demand this result.
Contrary to the State Supreme Court’s ruling, we hold that 25 U. S. C. §1912(f )—which bars involuntary termination of a parent’s rights in the absence of a heightened showing that serious harm to the Indian child is likely to result from the parent’s “continued custody” of the child— does not apply when, as here, the relevant parent never had custody of the child. We further hold that §1912(d)— which conditions involuntary termination of parental rights with respect to an Indian child on a showing that remedial efforts have been made to prevent the “breakup of the Indian family”—is inapplicable when, as here, the parent abandoned the Indian child before birth and never had custody of the child. Finally, we clarify that §1915(a), which provides placement preferences for the adoption of Indian children, does not bar a non-Indian family like Adoptive Couple from adopting an Indian child when no other eligible candidates have sought to adopt the child. We accordingly reverse the South Carolina Supreme Court’s judgment and remand for further proceedings.

Previous coverage here.

Commentary to follow.

Alaska SCT Decision on ICWA Placement Preferences

Matthew L.M. Fletcher1 Comment

Here is the opinion.

An excerpt:

This appeal requires us to reexamine policies that underlie ICWA. Though we have previously held that the preponderance of the evidence standard set forth in Adoption Rule 11 applies, upon closer review we conclude that ICWA implicitly mandates that good cause to deviate from ICWA’s adoptive placement preferences be proved by clear and convincing evidence. To the extent our prior cases hold otherwise, they are overruled. We therefore vacate the superior court’s decision and remand for further proceedings in which the superior court shall apply the clear and convincing standard of proof to the good cause determination. We do not reach all the issues raised on appeal because we are remanding, but we address some of the tribe’s arguments regarding the good cause determination to provide guidance to the superior court and the parties on remand. We also clarify the analysis necessary when a party challenges the suitability of a preferred placement.

New NPR Story on Baby Veronica Case

Matthew L.M. Fletcher

Here.

Still No Decision On Baby Veronica Case

Victoria Sweet

Ugh, the suspense . . . .

SCOTUS will be releasing more opinions on Thursday.

Previous coverage here.

New Scholarship on the “American Indian Child Welfare Crisis of the 1960s and 1970s”

Matthew L.M. Fletcher2 Comments

Margaret D. Jacobs has published “Remembering the ‘Forgotten Child’: The American Indian Child Welfare Crisis of the 1960s and 1970s” in the American Indian Quarterly. Email me for a pdf.

Here is an excerpt:

On Christmas Day 1975, Marcia Marie Summers was born to Charlene Summers, a member and resident of the Standing Rock Sioux Nation in North Dakota. A few months later, a white couple from Indiana approached the young mother and offered to care for her infant while Summers attended school. (Just two months before, the couple had filed an adoption petition in the Standing Rock Tribal Court for another Indian child, but the court had denied their request.) Assuming she was making a temporary arrangement, Summers agreed and signed a document giving the Indiana couple power of attorney over Marcia Marie in parent-child-related actions. Immediately, the couple departed with the baby from the reservation and returned to Indiana. Summers realized that the couple intended to permanently adopt her daughter, so she asked the Standing Rock Tribal Court to intervene. When the couple ignored the tribal court’s order to return the child to her mother, Summers and tribal authorities requested the help of the Association on American Indian Affairs ( AAIA). Their attorney filed a writ of habeas corpus on Summers’s behalf in the Washington County, Indiana, Circuit Court, and the judge ordered Marcia Marie returned to her mother, noting the tribe’s exclusive jurisdiction in the case.

Like Summers, in the 1960s and 1970s, thousands of other American Indian parents, grandparents, and caretakers suffered the removal of their children and their placement in non-Indian foster or adoptive homes. Unlike Summers, however, many Indian families struggled for years to regain their children, and some were never able to effect their return. By the late 1960s, many Indian tribes had become deeply troubled by this practice. In 1968, having endured an inordinate number of such cases, the Devils Lake (now Spirit Lake) Sioux Tribe of North Dakota requested that the AAIA conduct an investigation into the practice. The AAIA found that of 1,100 Devils Lake Sioux Indians under twenty-one years of age living on the Fort Totten reservation, 275, or 25 percent, had been separated from their families. Suspecting that this practice devastated other Indian communities as well, the AAIA engaged in a painstaking process to amass similar data from state social services agencies and private placement agencies across the nation. They discovered that in most states with large American Indian populations, 25 to 35 percent of Indian children had been separated from their families and placed in foster or adoptive homes or in institutions at a per capita rate far higher than that of non-Indian children.

How did it come to pass that the fostering and adoption of Indian children outside their families and communities had reached these crisis proportions by the late 1960s? State welfare authorities and Bureau of Indian Affairs ( BIA) officials alleged a dramatic rise in unmarried Indian mothers with unwanted children and claimed that many Indian individuals and families lacked the resources and skills to properly care for their own children. Claiming to be concerned with the best interests of the Indian child, the BIA promoted the increased fostering and adoption of Indian children in non-Indian families. Indian families and their advocates charged instead that many social workers were using ethnocentric and middle-class criteria to unnecessarily remove Indian children from their families and communities. Through creating their own child welfare organizations and legal codes, as well as working for the Indian Child Welfare Act ( ICWA), Indian activists and their allies sought to bring Indian child welfare under the control of Indian nations.

ICT Baby Veronica Coverage: Parts 3 and 4

Kate Fort

Here and here. Excellent articles.

From Part 3:

In 2010, after Brown had been served notice of termination and adoption, his original lawyer, Lesley Sasser, asked a Charleston, South Carolina–based family court attorney named Shannon Jones to join Brown’s legal team. Although Jones is an expert in interstate custody disputes under the Uniform Child Custody Jurisdiction Enforcement Act, she did not expect to become involved in an adoption struggle over an Indian child from Oklahoma.

“Lesley came to my office one day and said, ‘I’ve got this case that’s coming up for trial, and it could be kind of complex,’ ” said Jones, laughing at the understatement. “She said it involved the Indian Child Welfare Act. Honestly, at first I didn’t even know what it was. I’d never heard of it.”

***

Judge Deborah Malphrus, who heard arguments in South Carolina’s Ninth Judicial Circuit Court, issued a verbal courtroom ruling in favor of Brown on November 25, 2011. Soon, according to multiple sources in South Carolina, she was “inappropriately contacted” by numerous parties who asked her outright to change her written ruling in favor of the Capobiancos. Far from listening to their requests, Malphrus subsequently issued a 25-page ruling that reiterated the family court findings and transferred custody to Brown.

Read more at http://indiancountrytodaymedianetwork.com/2013/06/04/fight-baby-veronica-part-3-149704

Additional Responses to South Dakota Motions to Dismiss Oglala Sioux Tribe ICWA Class Action

Matthew L.M. Fletcher1 Comment

Here:

OST11(Reply to DSS MTD)

OST12(Reply to Vargo MTD)

The initial response to the motions to dismiss is here.

California Court of Appeals Decides ICWA Customary Adoption Case

Matthew L.M. Fletcher

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

In re C.G.

An excerpt:

We hold that to preserve claims related to the failure to follow the tribal customary adoption procedures, a parent must object on those grounds in the juvenile court. Here, father failed to object to those procedural errors. Further, any such errors were harmless here. Accordingly, we affirm the juvenile court‟s order.