ICWA

Michigan COA Issues Conditional Reversal in ICWA Notice Case

Matthew L.M. Fletcher

Here is the opinion in In re Howard.

An excerpt:

Where a respondent’s parental rights have otherwise been properly terminated under Michigan law, but the petitioner and the trial court failed to comply with the ICWA’s notice provision, the proper remedy is to conditionally reverse and remand for resolution of the ICWA notice issue. In re Morris, 491 Mich at 121. If the trial court conclusively determines that ICWA does not apply to the involuntary child custody proceeding—because the children are not  Indian children or because the properly noticed tribe does not respond within the allotted time—the trial court’s order terminating parental rights is reinstated. If, however, the trial court concludes that ICWA does apply to the child custody proceeding, the trial court’s order terminating parental rights must be vacated and all proceedings must begin anew in accord with the procedural and substantive requirements of ICWA. In re Morris, 491 Mich at 120-121.

Arizona Court of Appeals Affirms Deviation from ICWA/BIA Placement Preferences

Matthew L.M. Fletcher1 Comment

Here is the opinion in Navajo Nation v. Arizona Dept. of Economic Security:

Navajo v ADEC

An excerpt:

The Navajo Nation (“the Nation”) appeals the juvenile court’s judgment finding good cause to deviate from the placement preferences set forth in the Indian Child Welfare Act of 1978 (“ICWA”), 25 U.S.C. §§ 1901 to 1963 (2006), and allowing the child (“Z.”) to remain with his current non-relative, non-Indian adoptive placement. We affirm. The juvenile court properly found good cause to deviate from ICWA placement preferences because the placement family provided good care for Z., Z. had attached and bonded with the family, Z. would suffer severe distress if he was removed from that placement, the placement family would expose Z. to his Navajo culture, and the placement family had been approved to adopt Z. While the interest of the Nation and the Congressionally-presumed interest of Z. in maintaining his heritage weighed against a finding of good cause to deviate from ICWA’s preferences, on this record we cannot say the court erred in weighing all these interests.

Local news coverage here.

Marcia Zug on Slate Supporting the South Carolina SCT ICWA Decision

Matthew L.M. Fletcher

Here.

An excerpt:

Veronica’s case is deeply troubling, and our hearts should go out to all involved, but the problems it highlights are not problems with ICWA. Rather, her case reveals the problems with ignoring ICWA. This case agonizingly demonstrates the importance of observing ICWA’s placement and termination procedures in order to prevent impermissible adoptions from occurring and then being invalidated later. Everyone involved in Veronica’s adoption knew she was an American Indian child, and if the ICWA requirements had been followed, Veronica would not have been placed with the Capobiancos in the first place. It was because of this mistake that Veronica was 2 years old rather than an infant when she was reunited with her father. The lesson from Veronica’s case is not that ICWA is some obscure loophole that should be closed. Rather, the ongoing court battle demonstrates that ICWA is a pivotal piece of American Indian legislation that cannot be ignored without traumatic consequences.

Calif. COA Decides ICWA Placement Proximity Case

Matthew L.M. Fletcher

Here is the opinion:

In re Anthony T

An excerpt:

Anthony T., a member of the Torres Martinez Desert Cahuilla Indian Tribe, and his mother, Brooke H., a non-Indian, appeal an order placing Anthony in foster care with an Indian family. They contend the placement is not within “reasonable proximity” to the child’s home as required under title 25 United States Code section 1915, subdivision (b), and Welfare and Institutions Code section 361.31, subdivision (b). We reverse.

Cal. COA Decides ICWA Case involving Yurok Traditional Adoption Statute

Matthew L.M. Fletcher

Here is the opinion:

In re HR

An excerpt:

In 2010, legislation was enacted establishing “tribal customary adoption” as an alternative permanent plan for a dependent Indian child who cannot be reunited with his or her parents. Tribal customary adoption is intended to provide an Indian child with the same stability and permanency as traditional adoption under state law without the termination of parental rights, which is contrary to the cultural beliefs of many Native American tribes. In this case, the Yurok Tribe (the tribe) intervened in the dependency proceedings prior to the jurisdictional hearing and recommended tribal customary adoption as the permanent plan for the minor. The tribe now contends the juvenile court erred in terminating parental rights and selecting traditional adoption as the permanent plan. We disagree with the tribe’s contention that the court was required to select tribal customary adoption as the child’s permanent plan simply because the tribe elected such a plan but conclude that, in the absence of a finding that tribal customary adoption would be detrimental to the minor, the court erred in failing to select such a permanent plan in this case.

California SCT Decides Case involving Interaction between ICWA and Juvenile Delinquency Context

Matthew L.M. Fletcher

Here is the opinion:

In re W.B.

An excerpt:

Passed in 1978, the Indian Child Welfare Act (25 U.S.C. § 1901 et seq.) (ICWA, or the Act) formalizes federal policy relating to the placement of Indian children outside the family home. State courts presiding over adoption, guardianship, and dependency matters have become familiar with the many requirements of this federal law. Historically, however, ICWA provisions have not been applied in the juvenile delinquency context because ICWA includes an express exemption for placements “based upon an act which, if committed by an adult, would be deemed a crime.” (25 U.S.C. § 1903(1).) The minor argues state legislation has expanded ICWA to delinquency proceedings under Welfare and Institutions Code section 602.1 The Courts of Appeal have considered the question with varying results. Here, we determine the federally required scope of ICWA in juvenile delinquency proceedings and whether our Legislature has expanded those requirements. Consistent with the federal statutes, we hold that California law requires the court to inquire about a child’s Indian status at the outset of all juvenile proceedings, but that ICWA’s additional procedures are not required in most delinquency cases. A delinquency court must ensure that notice is given and other ICWA procedures are complied with only when (1) exercising “dual status” jurisdiction over an Indian child (see post, at pp. 9-11); (2) placing an Indian child outside the family home for committing a “status offense” (§§ 601-602; see post, at p. 5); or (3) placing an Indian child initially detained for “criminal conduct” (§ 602; see post, at pp. 5-6) outside the family home for reasons based entirely on harmful conditions in the home. In this narrow third category, ICWA notice is required when the  delinquency court sets a permanency planning hearing to terminate parental rights, or when the court contemplates ordering the ward placed in foster care and announces on the record that the placement is based entirely on abuse or neglect in the family home and not on the ward‟s delinquent conduct. Without a clear announcement from the court to the contrary, it will be presumed that a placement of a section 602 ward is based on the ward‟s delinquent conduct, rather than conditions in the home, and thus not subject to ICWA.

Nebraska COA Decides ICWA Tribal Court Transfer Case

Matthew L.M. Fletcher1 Comment

Here is the opinion.

An excerpt:

Even if we had not found that Sellers failed to object to the parents’ motion to transfer in the county court, his assignment of error has no merit. He argues that the court abused its discretion by ordering a transfer to the tribal court when good cause was shown not to transfer the case. But the burden to prove good cause was on Sellers. See In re Interest of Leslie S. et al., 17 Neb. App. 828, 832, 770 N.W.2d 678, 682 (2009) (“party opposing a transfer of jurisdiction to the tribal courts has the burden of establishing that good cause not to transfer the matter exists”). And per our standard of review, we review the county court’s decision for abuse of discretion. There was testimony that the tribal court could convene for any necessary hearings in Hall County. Indeed, commentary to the Bureau of Indian Affairs’ guidelines specifically referred to the ability of tribal courts to alleviate hardship on the parties and witnesses “by having the court come to the witnesses” or by appointing members of the tribe who live outside of the reservation as tribal judges. Guidelines for State Courts; Indian Child Custody Proceedings, 44 Fed. Reg. 67,584, 67,591 (Nov. 26, 1979) (not codified). Furthermore, the tribal representative testified that the tribal court could always receive testimony from witnesses in Hall County via telephone or documentary evidence. Given this evidence, the county court did not abuse its discretion in finding that Sellers failed to prove that there was good cause to deny the transfer based on hardship to potential witnesses.

Split South Carolina SCT Complies with ICWA and Affirms Return of Child to Cherokee Father

Matthew L.M. Fletcher5 Comments

Here is the opinion:

Adoptive Couple v Cherokee Nation

An excerpt:

We do not take lightly the grave interests at stake in this case. However, we are constrained by the law and convinced by the facts that the transfer of custody to Father was required under the law. Adoptive Couple are ideal parents who have exhibited the ability to provide a loving family environment for Baby Girl. Thus, it is with a heavy heart that we affirm the family court order. Because this case involves an Indian child, the ICWA applies and confers conclusive custodial preference to the Indian parent. All of the rest of our determinations flow from this reality. While we have the highest respect for the deeply felt opinions expressed by the dissent, we simply see this case as one in which the dictates of federal Indian law supersede state law where the adoption and custody of an Indian child is at issue. Father did not consent to Baby Girl’s adoption, and we cannot say beyond a reasonable doubt that custody by him would result in serious emotional or physical harm to Baby Girl. Thus, under the federal standard we cannot terminate Father’s parental rights. For these reasons, we affirm the family court’s denial of the adoption decree and transfer of custody to Father.

News coverage here.

Terry Cross in Defense of the Indian Child Welfare Act

Matthew L.M. Fletcher

Here.

Wyoming Supreme Court Rejects Equal Protection Challenge to ICWA “Clear and Convincing Evidence” Standard

Matthew L.M. Fletcher

Here the opinion in In re KMO.

An excerpt:

Several state courts have evaluated the equal protection argument in the context of the ICWA as compared with a state statute with a “clear and convincing” standard of proof. See, In re Application of Angus, 655 P.2d 208 (Ore. App. 1982), Knight v. State (In re MK.), 964 P.2d 241 (Okla. Civ. App. 1998); State v. Sonya L. (In re Phoenix L), 708 N.W.2d 786 (Neb. 2006). Those courts have applied the test articulated in Moe and concluded that there was no equal protection violation under the United States Constitution. See, e.g., Application of Angus, 655 P.2d at 213 (holding “the protection of the integrity of Indian families to be a permissible goal that is rationally tied to the fulfillment of Congress’ unique guardianship obligation toward the Indians.”). Mother provides no legal authority or cogent argument in support of her position that an equal protection violation has occurred. We follow the reasoning of the Oregon court in Application of Angus and hold that the different burdens of proof in the federal ICWA and Wyoming’s termination statute do not violate Mother’s constitutional right to equal protection under the law.