Emergency Hearing Standards Case from Montana [ICWA]


I won’t lie, guys, I had to read this one multiple times to figure out what was going on. Essentially the Montana legislature passed a law without understanding the difference between hearings that fall under 1912(a) and 1922. 1912 governs foster care proceedings and requires notice, active efforts, qualified expert witness testimony, etc. 1922 governs emergency proceedings (1922 has language that all states essentially read out of the statute to achieve this jurisdiction, which only makes sense to ICWA practitioners and no one else). Emergency proceedings do not require notice and the other 1912 protections, but it has a higher standard for removal (imminent physical damage or harm). The Montana statute denied parents of Indian children a faster emergency hearing because of the belief that 1912 standards (specifically notice) had to be hit before there could be a reason. The Court overturned this language.

Also interesting is the issue of trying to appeal proceedings that are emergency/shelter care/24 hour/48 hour/preliminary hearings in child protection proceedings. There’s often not a final order coming out of those hearings, and no way for a parent or tribe to appeal an emergency decision (this was an issue in the In re Z.J.G. case in Washington as well). Here, the District Court argued there was no way for the appellate court to hear the case because of the nature of the hearings.

Finally, the District Court argues this matter does not meet the threshold criteria for a writ of supervisory control because no urgent or emergency factors make appeal an inadequate remedy. The court alleges that in this case, it was later determined that O.F. is not an Indian child, and A.J.B. and O.F. have been “conditionally reunited.” However, as A.J.B. asserts in her petition, she does not appear to have any remedy on appeal for the denial of her right to an EPS [emergency] hearing, and the potentially erroneous loss of the right to parent, even for a short time, is a matter of great urgency.

Here the appellate Court heard the case anyway and overturned the statute.

Of course, you may also remember the federal case in South Dakota attempting to remedy emergency hearing practices there in ICWA cases that was dismissed on appeal because the federal court stated there were Younger abstention issues.

Motion and Briefing for Partial Summary Judgment in Oglala Sioux v. Fleming (Van Hunnik)

This filing is part of the ICWA class action case in South Dakota over the interpretation of 25 USC 1922 (emergency jurisdiction):

The third reason why this Court’s ruling on § 1922 has been inoperative is because the State’s Attorney for Pennington County, Defendant Mark Vargo, and the person Mr. Vargo has assigned to handle abuse and neglect cases in Pennington County, Deputy State’s Attorney Roxanne Erickson, see Erickson Dep. at 5-7, is failing to properly employ the federal standard. Indeed, Mr. Vargo’s interpretation of § 1922 threatens to forever prevent Plaintiffs from obtaining the benefit of this Court’s ruling on § 1922.6 The instant motion for partial summary judgment seeks to remove this final obstacle to the implementation of § 1922 in Defendants’ 48-hour hearings.

Plaintiffs deposed Ms. Erickson on May 25, 2016. Ms. Erickson testified that she interprets the word “harm” in § 1922’s standard “physical damage or harm” as including emotional harm. Id. at 131 made that ‘harm’ would also include emotional harm to the child. . . . [T]hat is how I would read it, that you have to show some form of harm which could include emotional harm.”). Thus, Defendant Vargo continues to use the state standard rather than the federal standard, given that Ms. Erickson interprets the federal standard to authorize DSS to consider emotional harm in determining whether to seek continued custody of an Indian child at the 48-hour hearing.

Motion for Partial Summary Judgment

Memorandum in Support of S.J.

Affidavit in Support of Motion

Statement of Undisputed Facts

Ex. 1-Vargo

Ex. 2-Vargo

Ex. 3-Vargo

Ex. 4-Vargo

Ex. 5-Vargo

Ex. 6-Vargo

Motions for Reconsideration in Oglala Sioux v. Van Hunnik Denied

After losing a partial summary judgment in March, the state defendants filed motions to reconsider. Those have now been denied. The order is here.

The DSS Defendants miss the point of the court’s findings. The issue is not what the Indian parents knew about the reasons their children were initially removed from the parents’ custody, but rather the factual basis supporting continued separation of the family. This is the information mandated for disclosure to the parents and for consideration by the state court judges in  determining whether continued separation of the family is necessary under ICWA. (Docket 150 at pp. 27-28).

The court acknowledged the DSS Defendants claimed to have provided the ICWA affidavit. See id. at p. 13. What was troubling to the court and justified the findings made on the issue was that “disclosure of an ICWA affidavit and petition for temporary custody to a parent was not mentioned in 77 out of 78 cases.” Id. at pp. 13-14. Then in seven cases there were specific references in the transcripts to complaints by the parents or the Tribe’s counsel that they had not received the documents allegedly justifying continued placement with DSS. Id. at pp. 14-15.