Some good news in this legislative session–the Michigan Indian Family Preservation Act just passed in the House and, having already passed in the Senate, is heading to the Governor’s office for him to sign. Bill status and versions are available here.
ICWA
Birth Father/Cherokee Nation Cert Opposition Brief in Adoptive Couple v. Baby Girl
Here:
Michigan COA Decides ICWA Notice Case
Here is the opinion in In re BMH:
An excerpt:
At the April 27, 2012, continued Indian heritage hearing, respondent-father indicated, for the first time, that he believed he was a member of the Tuscarora Band of Lewiston, New York. As the trial court noted below, the “Tuscarora Nation of New York” is listed among the federally recognized Indian tribes to which the ICWA applies. 75 FR 60810-01. Respondent-father’s sole basis for this belief was a letter that the Indian and Northern Affairs of Canada sent to respondent-father’s mother in 1992, confirming that she and respondent-father were members “of Tuscarora, Six Nations Band.” On appeal, respondent-father argues that this was sufficient indication that he was a member of the federally recognized Tuscarora Nation of New York and that the trial court should not have proceeded to the termination trial without first sending notice to the Tuscarora Nation of New York pursuant to the ICWA’s notice provision. We disagree. At this point in the proceedings, as discussed above, petitioners had presented the January 10, 2012, letter from the Six Nations Tribe confirming respondent-father’s membership with that tribe, and the trial court had heard extensive testimony that respondent-father was a member of the Six Nations Tribe and no other tribe. It was uncontroverted that the Six Nations Tribe was a Canadian tribe that was not recognized under the ICWA. The 1992 letter itself was from the Indian and Northern Affairs of Canada, which further evidenced that respondent-father was a member of a Canadian Indian tribe, rather than the federally recognized Tuscarora Nation of New York. In sum, Brown had already sent notice to the Bureau of Indian Affairs and various Indian tribes in compliance with the ICWA’s notice provision,2 and respondent-father did not present reliable information on which his purported membership with the Tuscarora Nation of New York might be based. Accordingly, the trial court did not fail to comply with the ICWA’s notice provision, 25 USC 1912(a), and did not err by finding that the ICWA did not apply to this case. See In re Morris, 491 Mich at 97.
Michigan COA Denies Nottawaseppi Huron Band Motion to Intervene in ICWA Case
Here is the opinion:
Colorado COA Decides ICWA Placement Preferences Case
Here is the opinion in People ex rel. A.R.
The court’s syllabus:
In this dependency and neglect proceeding, mother appealed from the judgment terminating her parent–child legal relationship with A.R. The Department of Human Services (Department) joined mother’s appeal of the termination and also challenged that part of the judgment addressing the Department’s guardianship. The judgment terminating mother’s parental rights was affirmed, the part of the judgment addressing guardianship was reversed, and the case was remanded.
Because A.R. is an “Indian child” as defined in 25 USC § 1903(4), these proceedings were subject to the Indian Child Welfare Act (ICWA), 25 USC §§ 1901 to 1963. Mother contended that the court erred in terminating her parental rights. She asserted that the Department did not meet the ICWA’s “active efforts” requirement, and there were viable, less drastic alternatives to termination, including A.R.’s placement with A.W. and C.W. The ICWA’s “active efforts” standard requires more effort than the “reasonable effort” standard in non-ICWA cases. Here, despite the court’s use of the term “best efforts,” the record supports the court’s determination that the Department’s actions met the requisite “active efforts” standard under the ICWA with regard to mother, A.W. and C.W. The trial court found, with record support, that although mother substantially complied with her treatment plan, it was unsuccessful in rendering her a fit parent and that her conduct or condition was not likely to change within a reasonable time. It also found that A.R. needs lifelong care or intensive services for her special needs, and mother was unable to provide those services. Additionally, placement with A.W. and C.W. without terminating mother’s parental rights was not a less drastic alternative; A.R. needed permanency, so it was not in her best interests.
The Department contended that, even if the court’s termination of mother’s parental rights was proper, the court erroneously deviated from the ICWA’s placement preferences when, in granting the Department guardianship, it denied the Department permission to place A.R. with A.W. and C.W. for purposes of adoption. The ICWA presumes that the child’s best interests are served by placement with an extended family member who also has Indian heritage. Here, the record does not support the trial court’s finding that there was good cause to deviate from the ICWA’s placement preferences. Therefore, the court erred in deviating from the ICWA’s placement preferences. The trial court’s judgment was reversed in this regard and the case was remanded with directions for the court to allow the department to arrange a home visit with A.W. and C.W., and to consider an adoption or preadoptive placement of A.R. consistent with the ICWA placement preferences, including possible placement with A.W. and C.W. or her foster parents.
Michigan COA Decides ICWA Notice Trigger Case
Here is the opinion:
An excerpt:
Here, the only evidence that the child had any tribal membership was the testimony of a DHS worker who stated that respondent once mentioned that she had recently discovered that she had Native American heritage. Respondent herself did not provide any testimony as to any Native American heritage on her part or on the part of the child. Indeed, the statement made to the DHS worker was entirely unsubstantiated. As such, it was not sufficiently reliable information of the child’s Indian heritage to trigger the requirements of the ICWA.
Guardian ad Litem Brief in Support of Cert Petition in Adoptive Couple v. Baby Girl
Here:
GAL Brief in Support of Petition
A direct challenge to the constitutionality of the Indian Child Welfare Act, filed by Paul Clement. No circuit split, no split of authority in the state courts, arguments never raised below — an emotional plea to an unemotional Court.
NICWA Press Release Responding to Dr. Phil Episode On ICWA
NATIONAL INDIAN CHILD WELFARE ASSOCIATION RESPONDS TO THE DR. PHIL SHOW’S COVERAGE OF SOUTH CAROLINA INDIAN CHILD WELFARE ACT CASE
Portland, Ore.–On October 18, 2012, the Dr. Phil show aired an episode that focused on a disputed custody case involving an American Indian child, Veronica. The case pits a loving father’s attempts to parent his daughter against a non-Indian couple from South Carolina–the Capobiancos–and their attorneys who orchestrated an illegal attempt to adopt Veronica. The National Indian Child Welfare Association (NICWA) is gravely disappointed in the heavy slant toward the Capobiancos’ recounting of the situation and interpretation of the legal issues in the case.
Veronica’s father, who has been relentlessly vilified in the media as a “deadbeat dad” is, in fact, a loving parent and a decorated Iraq war veteran. Rather than acknowledge his right to protect his daughter from a media firestorm that has proven deeply biased, the Dr. Phil show instead allowed personal attacks on his character and speculation on his parenting–from those who admittedly have had no contact with him–to continue unchallenged. We find these attacks unsupported by court records and unacceptable.
Veronica’s pre-adoptive placement was kept secret by her mother and attorneys representing the Capobiancos. Her placement with them was not revealed to Veronica’s father for four months–just days before he was sent to Iraq. Upon learning of his daughter’s proposed adoption, the father quickly moved to affirm his rights to parent Veronica. After three decisions supporting his rights in the South Carolina courts, he has been parenting her since January 2012.
Dr. Phil and several of his guests ignored the fraudulent process attorneys representing the Capobiancos used to help them gain custody of Veronica during their unsuccessful attempt to adopt her. That Veronica is American Indian was known by the Capobiancos and their attorneys, as was the fact that any adoptive process involving her would be covered by the Indian Child Welfare Act (ICWA). Instead of delving into why the Capobiancos were advised to circumvent the law, putting Veronica at high risk, Dr. Phil instead chose to rebuff the two guests with the most knowledge of this case and experience in such matters, Assistant District Attorney of the Cherokee Nation Chrissi Nimmo and Les Marston, attorney and tribal judge.
NICWA understands this case is emotionally-charged and has attracted worldwide attention. Nonetheless, we must reject the subjective definitions of what is in Veronica’s best interest that Dr. Phil disappointingly reinforced. Not only did the discussion of Veronica’s “best interest” completely discount the importance of her cultural identity and rights as a tribal citizen, it more shockingly ignored the significance of her being raised within a loving home with her father, sister, stepmother, and loving grandparents–and among a community that includes extended family and tribal members who love her. As Nimmo correctly stated, if Veronica was a non-Indian child, existing state and federal laws would have afforded the father an opportunity to seek custody of her and not reward those who violated the law.
Furthermore, NICWA firmly believes that Veronica’s best interest is not served by the continued negative media campaign currently pursued by the Capobiancos and their public relations firm. We have no doubt they love Veronica, but in this case, the ends they hope to accomplish certainly do not justify the means. Dr. Phil’s portrayal only serves to put Veronica at further risk.
The show’s characterization of ICWA was also filled with misinformation and inaccuracies. ICWA is a law that has helped protect thousands of American Indian children and keep them with their families. Veronica’s story illustrates the clear ongoing need for federal protections like ICWA for American Indian children who continue to be the victims of questionable, and sometimes illegal, attempts to adopt them out.
To learn more about how you can support the National Indian Child Welfare Association’s efforts to strengthen protections for American Indian children and families and to access more information on this case, please visit our website at http://www.nicwa.org.
Cheyenne River Sioux Tribe v. Honorable Jeff W. Davis: ICWA Case
Decision here.
The Cheyenne River Sioux Tribe filed a writ of mandamus to the South Dakota Supreme Court, trying to stop the practice of the lower courts using 25 USC 1922 to justify ignoring ICWA’s requirements for weeks after a removal of a child. The Supreme Court dismissed the writ.
In this case, the original removal was on July 6. At a hearing on July 23, the judge stated that the hearing was a “continuation of the emergency hearing, and that ICWA placement preferences were not yet applicable.” The Supreme Court upheld this decision, and the inapplicability of ICWA to emergency or temporary custody proceedings.
After the court justified ignoring the plain language of the section (applying it to all Indian children, and ignoring the “imminent physical damage or harm” requirement of a 1922 action), the court went on to state:
Tribe also asserts a violation of state law in the temporary custody hearing based upon an alleged lack of evidence of a need for temporary custody as required by SDCL 26-7A-18. Tribe ignores, however, that the temporary custody hearing proceeded on the State’s petition for temporary custody and the accompanying police report and ICWA affidavit from a DSS specialist . . . While these documents might not constitute evidence within the normal bounds of the Rules of Evidence, those rules are not applicable at a temporary custody hearing.
It would be interesting to know what rules do apply to temporary custody hearings in South Dakota.
Adoptive Couple v. Baby Girl Cert Petition (South Carolina ICWA Case)
Here (we’ll post a pdf of the original when we get it):
Adoptive Couple v Baby Girl Cert Petition
No 12-__ Adoptive Couple v Baby Girl REDACTED
Questions presented:
(1) Whether a non-custodial parent can invoke ICWA to block an adoption voluntarily and lawfully initiated by a non-Indian parent under state law.
(2) Whether ICWA defines “parent” in 25 U.S.C. § 1903(9) to include an unwed biological father who has not complied with state law rules to attain legal status as a parent.
Lower court decision here.
Turtle Talk 
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