Our prior post on the case is here.
ICWA
Sharply Split Alaska SCT Decides ICWA Active Efforts Case
Active efforts determinations are difficult in light of the terrible fact patterns judges see in these cases. We should expect to see many more of these cases in many states, especially Alaska, where there appears to be divergent views.
Michigan COA Conditionally Reverses For Another ICWA Notice Violation
Here.
ICWA By The Numbers
This information is from a presentation I gave today at the Minnesota CLE.
In 2011 there were 199 ICWA cases (249 in the allstate-cs Westlaw database using “Indian Child Welfare Act” search. 50 were not ICWA cases.). Of those 122 (61%) were California notice or inquiry cases. This is less than the last time we checked in 2007 (308 cases). The state continues to remand nearly 50% of all the notice cases (58 remanded, 48%). The only state even close to California on notice cases is Michigan, with 8 last year, and 5 remanded.
Of the family lore cases, there was only one additional case in 2011 from the same lower court as the others and none in 2012.
Michigan COA Issues First “Conditional Reversal” in ICWA Notice Case
Here:
The Michigan SCT decision instructing lower courts on ICWA notice violations and adopting the “conditional reversal” requirement is here.
In re T.S.W., Kansas ICWA Case on Finality for Appeal and Placement in Private Adoptions
Here.
The Kansas Supreme Court again comes out with strong language in support of ICWA. In addition, the case, which has a complicated procedural history given the actions of the private adoption agency, provides an interesting analysis of what is a “final order” in an ICWA case and a discussion of the collateral order doctrine:
Under the circumstances presented here, we conclude the district court’s order permitting a deviation from ICWA’s placement preferences did not dispose of the entire merits of the case and left open the possibility of future action by the district court with respect to T.S.W.’s placement. Thus, the Tribe has not appealed from a “final order, judgment or decree” under K.S.A. 2011 Supp. 59-2401a(b)(1), and we lack statutory authority to hear this appeal.
But that holding does not end our analysis. Alternatively, the Tribe urges us to exercise jurisdiction under the collateral order doctrine. That doctrine, which we sparingly apply, provides a narrow exception to the final order requirement. It “allows appellate courts to reach ‘not only judgments that “terminate an action,” but also a “small class” of collateral rulings that, although they do not end the litigation, are appropriately deemed “final.” [Citation omitted.]'” Kansas Medical Mut. Ins. Co., 291 Kan. at 611-12 (quoting Mohawk Industries, Inc. v. Carpenter, 558 U.S. ___, 130 S. Ct. 599, 605, 175 L. Ed. 2d 458 [2009]).
This case is also an illustration of the difficulties of ICWA and private adoptions. The adoption agency initially refused to consider any placements provided by the Cherokee Nation if the families couldn’t pay the $27,500 fee:
In this case, we need not extensively consider whether the Agency followed the placement preferences before seeking a deviation from those preferences. It did not. While the Agency made some effort to satisfy the second placement preference when it requested the Tribe provide available adoptive family profiles, the Agency impermissibly qualified its request in at least two ways. First, the Agency provided the Tribe with Mother’s extensive “criteria” for any prospective adoptive family. Second, the Agency specified that prospective adoptive families be able to pay the Agency’s $27,500 fee requirement. And while the Agency eventually indicated a willingness to modify its fee based on an unspecified sliding scale, the parties never agreed as to the parameters of that scale because Mother chose a non-Indian family based on profiles presented to her from the Agency.
Essentially, the Agency grafted its substantial fee requirement as well as Mother’s placement criteria (which ironically specified that the adoptive parents be Caucasian) onto ICWA’s placement preferences. Common sense dictates that ICWA’s placement preferences cannot be undermined in this manner. In fact, the Agency’s actions appear to fly in the face of Congress’ intent in enacting ICWA. See Holyfield, 490 U.S. at 37 (ICWA “‘seeks to protect the rights of the Indian child as an Indian and the rights of the Indian community and tribe in retaining its children in its society’ . . . by establishing ‘a Federal policy that, where possible, an Indian child should remain in the Indian community'” and ensuring that Indian child welfare determinations are not based on a white, middle-class standard that often forecloses placement with an Indian family).
The Court found that the agency and the lower court did not follow the placement preferences of ICWA, even after the Nation provided 17-20 (!) potential adoptive families for the child, and reversed the decision.
Michigan SCT Decides In re Morris and In re Gordon; Adopts “Conditional Reversal” Rule for ICWA Notice Violations
An excerpt from Justice Cavanagh’s unanimous opinion:
While it is impossible to articulate a precise rule that will encompass every possible factual situation, in light of the interests protected by ICWA, the potentially high costs of erroneously concluding that notice need not be sent, and the relatively low burden of erring in favor of requiring notice, we think the standard for triggering the notice requirement of 25 USC 1912(a) must be a cautionary one. Therefore, we hold first that sufficiently reliable information of virtually any criteria on which tribal membership might be based suffices to trigger the notice requirement. We hold also that a parent of an Indian child cannot waive the separate and independent ICWA rights of an Indian child’s tribe and that the trial court must maintain a documentary record including, at minimum, (1) the original or a copy of each actual notice personally served or sent via registered mail pursuant to 25 USC 1912(a) and (2) the original or a legible copy of the return receipt or other proof of service showing delivery of the notice.1 Finally, we hold that the proper remedy for an ICWA-notice violation is to conditionally reverse the trial court and remand for resolution of the ICWA-notice issue.
California Appeals Court Decides ICWA Notice Case; Admonishes Alameda County Social Services Agency
Here is the opinion in In re A.G. (Cal. App. Dist. 1):
An excerpt:
Father’s sole contention is that the order terminating his parental rights as to A.G. must be reversed because the Agency did not provide notice as required under ICWA. Although the Agency strenuously contested this appeal, it does not dispute that it failed to comply with ICWA’s inquiry and notice requirements. Instead, it raises a battery of contentions that arise out of a theory that Father has “renounced” his paternal rights and worked a fraud on the family and juvenile courts. The Agency also says the appeal is barred by res judicata and, in any event, that reversal is not required because its ICWA violations were not prejudicial. These arguments are long on novelty, but short on merit. We are reluctant to impose further delay before this young child may finally gain permanence and stability in an adoptive family. Unfortunately, the Agency’s unexplained failure to follow the law leaves us with no choice. We therefore order a limited reversal and require the Agency to fulfill its ICWA-related duties, as it should have done long ago.
Update in Koniag v. Kanam — Some Evidence that “Karluk Tribal Court” Isn’t a Real Tribal Court At All
You may recall our posting on the recent complaint in Koniag, Inc. v. Kanam (and the Karluk Tribal Court). There is some evidence that the “Karluk Tribal Court” is not attached to a federally recognized tribe, and may be a total fraud.
Here are some additional materials in the ongoing federal suit:
Karluk Tribal Court Materials [Note the location of the tribal court — it’s in Washington state, a thousand miles from the Native village on Kodiak Island]
Here is an order issued by the “Karluk Tribal Court” purporting to declare a Washington state court ICWA proceeding invalid: Continue reading
Utah SCT Dismisses Navajo ICWA Tribal Court Transfer Denial Suit as Moot
Here is the opinion:
An excerpt:
This case involves a dispute over the Division of Child and Family Services’ (DCFS) compliance with the Indian Child Welfare Act (ICWA). The Navajo Nation (Nation) moved the juvenile court to transfer jurisdiction to the Nation. The juvenile court denied this motion. The Nation appealed to the Utah Court of Appeals. The court of appeals dismissed the case. We granted certiorari to determine whether the court of appeals erred in (1) holding that it lacked appellate jurisdiction over the Nation’s direct appeal of the juvenile court’s denial of a renewed motion to transfer jurisdiction and (2) declining to permit full briefing under rule 58 of the Utah Rules of Appellate Procedure. Because the Nation’s consent to the child’s adoption placement renders these procedural questions moot, we decline to address the issues raised on certiorari.
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