ICWA

Illinois Court of Appeals Decides ICWA Tribal Intervention Appeal

Matthew L.M. Fletcher

Here is the opinion in In re K.T.

An excerpt:

Respondent is the mother of K.T. K.T. is a member of the Seminole Indian tribe. The State filed a juvenile petition alleging that K.T. was neglected because her environment was  injurious to her welfare, in part, as a result of respondent’s behavior. At respondent’s combined adjudication and dispositional hearing, the Illinois Department of Children and Family Services (DCFS) notified the court that K.T.’s Indian tribe was interested in becoming a party to the case. Respondent then moved for a continuance so that the tribe could enter the case. The trial court denied respondent’s motion. We reverse and remand.

Oglala Sioux Tribe Response to Judge Davis Motion to Dismiss

Matthew L.M. Fletcher2 Comments

Here:

OST9(ReplyToDavisMTD)

The motion to dismiss is here.

North Carolina COA Decides ICWA Notice Case

Matthew L.M. Fletcher

Here is the opinion in In re A.R.:

NC App Opinion

Update in Oglala Sioux Tribe ICWA Class Act: Motions to Dismiss Filed

Matthew L.M. Fletcher2 Comments

Here are the new materials in Oglala Sioux Tribe v. Van Hunnik (D. S.D.):

Davis Motion to Dismiss

Malsom-Rysdon and Van Hunnik Motion to Dismiss

Vargo Motion to Dismiss

Prior posts here and here.

Ninth Circuit Dismisses Fred v. Washoe Tribe Appeal

Matthew L.M. Fletcher

Here is the unpublished opinion.

Briefs:

Washoe Tribe Opening Brief

Fred Brief

From the opinion:

This is an interlocutory appeal asserting jurisdiction in this court under the collateral order doctrine. The underlying claims relate to the Washoe Tribe’s decision to take custody of the plaintiff’s grandchildren due to allegations of abuse by the grandchildren’s mother (the plaintiff’s daughter). After pursuing tribal  remedies, the grandmother, Ms. Fred, filed suit against the Tribe in federal district court. The district court dismissed for failure to state a claim with leave to amend. The Tribe appeals the district court’s dismissal in its favor because the dismissal was without prejudice, arguing that the complaint should have been dismissed with prejudice for three reasons: 1) failure to exhaust tribal court remedies; 2) tribal sovereign immunity; and 3) lack of subject matter jurisdiction.

Prior posts on this case here and here.

ICWA Educational Resource Video – “Bringing our Children Home: An Introduction to the Indian Child Welfare Act”

Matthew L.M. Fletcher

From the State of Mississippi judicial site:

The video trailer referenced is the culmination of the ongoing collaboration between the Mississippi Courts, Child Welfare Agency, the Mississippi Band of Choctaw Indians, and various National Resource Centers which specifically focus their expertise on educating non tribal entities on the Indian Child Welfare Act (ICWA) and other issues related to Native American values. The video trailer was developed by the Mississippi Administrative Office of Courts/Court Improvement Program in consultation with the National Resource Center on Legal and Judicial Issues and the National Resource Center for Tribes as an ICWA educational resource for judges, courts, child welfare, and judicial educators. The full length video will be available later this year. The video is being produced by Mad Genius, Inc., Ridgeland, Mississippi.

Nebraska COA Remands ICW Case for Failure to Notify Rosebud Sioux Tribe

Matthew L.M. Fletcher

Here is the opinion in In re Nery V. From the opinion:

The county court for Hall County, sitting as a juvenile court, terminated the parental rights of Mario V., Sr. (Mario Sr.), and Ida V. to their minor children. Mario Sr. appeals in case  No. A-12-629, and Ida appeals in case No. A-12-662. We initially determine that the  relinquishments that Ida executed some 3 years before these proceedings are valid and that her attempted revocation of such is of no force and effect. But, because there is no evidence that the Rosebud Sioux Tribe was given proper notice of these termination of parental rights proceedings as required by the Nebraska Indian Child Welfare Act (NICWA), we find that the termination proceedings conducted were invalid and thus that the order of termination in both cases must be vacated. We therefore remand the causes to the juvenile court for further proceedings consistent with our opinion.

Minnesota Legislature Passes Bill to “Fix” the Minnesota SCT Decision In re R.S.

Matthew L.M. Fletcher

Minnesota Legislature Passes Bill to “Fix” the Minn. SCT Decision In re R.S.

HF 252, which was introduced by Rep. Susan Allen, overcame its final hurdle in the Minnesota Legislature by passing the House by a wide margin on May 10th. It passed the Senate with an equally wide margin the previous week and was signed into law on May 16th.

HF 252 reverses the affects of the Minn. SCT’s decision In the Matter of the Welfare of the Child of R.S. and L.S., wherein the Court denied a transfer of jurisdiction to a tribal court in a proceeding at the pre-adoptive stage. HF 252 amends Minnesota Statute 260.771, Subd. 3 to allow for transfers of jurisdiction at all four stages of a child custody proceeding: involuntary foster care placements; termination of parental rights; pre-adoptive; and adoption proceedings. HF 252 is a tremendous accomplishment for the 11 tribes and bands in Minnesota as well as a brave and courageous action by Rep. Allen.

Our prior post on this legislation is here.

Unpublished Michigan ICWA Notice Case

Kate Fort

Michigan’s practice of automatically proceeding as if the child is NOT an Indian child unless told otherwise by a tribe will eventually cause problems.

In re Vanostran(pdf)

For our current purpose, what is important
from this Court’s prior decision is that we ultimately conditionally reversed the trial court order terminating respondents’ parental rights to SKV and remanded the case to the trial court only for “resolution of the ICWA-notice issue.” Id.at page 4. On remand, the trial court held several administrative review hearings. The trial court submitted an order dated March 8, 2013, indicating that at the review hearing held on January 23, 2013, the Department of Human Services complied with the statutory notice requirements tothe four Native American Indian tribes mentioned as a possible connection to the biological father of SKV who was later adopted by respondent father. As of February 19, 2013, one of the tribes had responded that there was no evidence to support that SKV was a descendent of that tribe. The order further stated that on February 14, 2013, another of the tribes responded that SKV was neither registered nor eligible to registeras a member of that tribe. The other tribes had not responded. As a result, the trial court ordered that none of the Native American Indian tribes identified as having a possible connection to SKV have responded that the child is eligible for membership in their tribe and/or that they wish to intervene in this matter. The trial court thus ordered, “The Court having previously made findings that there was clear and convincing evidence of statutory grounds to terminate the parental rights of [respondents], and that it was in the best interest of the minor child to terminate their parental rights, reinstates the Order Following hearing to terminate Parental Rights of the parents to [SKV].”

Montana SCT Reverses Termination of Parental Rights because of ICWA Procedural Violations

Matthew L.M. Fletcher1 Comment

Here is the Montana Supreme Court’s ruling in In re K.B.:

Opinion

Excerpt:

Mother appeared with counsel at the termination hearing and contested the termination of her parental rights, suggesting instead that the State be granted a long-term guardianship of the children. The Tribe did not appear. Mother’s attorney informed the court:

I don’t think alcoholism is a reason to terminate under the Indian Child Welfare Act. My client has been making visits. My client is employed. And my client has been going to group care, in regard to an alcohol issue. The Indian Child Welfare Act does not encourage  termination regarding alcoholism. . . .

Because counsel could not support his client’s position with a specific citation to ICWA, the court responded that it could not consider counsel’s objection: “I’m saying, for the record, to the Montana Supreme Court and to you, frankly, I can’t consider an objection on legal authority that’s not cited to the Court.”

And the briefs:

Appellant

Appellee

Reply