2015 Guidelines

ICWA Inquiry Case out of Colorado Court of Appeals

Kate Fort

Here.

To decide if the trial court complied with ICWA, we must answer a question that has yet to be decided in Colorado: When a trial court inquires at an initial temporary custody hearing at the commencement of the dependency and neglect proceeding whether there is a reason to know that the child is an Indian child, must it make another inquiry when termination is sought? We conclude that the answer is “yes,” at least when the court has not already identified the child as an Indian child and the petitioning party has not disclosed what efforts it has made to determine if the child is an Indian child.

Unpublished ICWA Notice Case from Michigan Court of Appeals

Kate Fort

This is a pretty standard unpublished ICWA notice case (there have been 62 so far this year, 53 out of California, 3 from Michigan, 2 from Texas, and 1 each from Indiana, Iowa, Kansas, and New Jersey). We’re posting it for two (three) reasons. From the opinion:

We also reject the father’s challenges to the notices’ failures to include a copy of the petition in LC No. 13–514918–NA. The father cites only 80 CFR 37, 10146, 1153–1154 (2015). This regulation contains the requirements for Native–American tribal notifications under 25 USC 1912(a). In relevant part, the regulation demands that a notice of a pending child custody proceeding contain “clear and understandable language and include” identifying information concerning the child, the tribes “in which the child … may be eligible for membership,” and “[a] copy of the petition, complaint or other document by which the proceeding was initiated.” 80 CFR 37(B)(6)(a)(1)-(3). But the father fails to identify any authority in support of the proposition that the failure to strictly adhere to the requirement that a tribal notice contain a petition copy demands conditional reversal.

(emphasis added).

1. There is still mass confusion over Guidelines v. Regulations, including which is currently effective, their binding nature, and how to cite them. It appears father’s attorney meant to cite 80 Fed. Reg. 10153-4 (Feb. 25, 2015), which are the 2015 Guidelines, not regulations, and not a CFR. The following quote is from the same source, though I admit I was stumped on where that 37 came from–BUT that’s the number of the applicable Federal Register: Volume 80, No. 37. Page 10153, Section B.6(a). But the Court of Appeals didn’t catch this mis-cite either.

2. Yes, the Guidelines are not binding, but the Court of Appeals apparently considered them regulations for the purposes of the opinion. And yes, the 2016 Regulations are not binding until December. However, that’s also not the court’s reasoning. The Michigan Court of Appeals here says there is no remedy for not following the Regulations. That there must be additional authority beyond that of the language of federal Regulations to justify sending it back to the lower court to do the work required–father (mis)cites only binding federal Regulations. This is a small issue in this case–it appears that notice on the whole was proper. But it also demonstrates the problem with the continued lack of an enforcement mechanism in these cases.

3. For the record, either the attorney or the court could have cited to the current Regulations, 23 CFR sec. 23.11(d)(4)(2005)(“a copy of the petition, complaint, or other document by which the proceeding was initiated”), which are currently binding. The attorney or court could also point to the Regulations which will be binding in December and moved that same requirement to sec. 23.111(d)(5)(“a copy of the petition, complaint, or other document by which the child custody proceeding was initiated . . .”), 81 Fed. Reg. 38864, 38871 (June 14, 2016).

Nebraska Supreme Court Decides Transfer to Tribal Court ICWA Decision

Kate Fort2 Comments

Here.

In a 4-3 decision (though all the justices unanimously would overturn the lower court denial of transfer), the Court uses the 2015 Guidelines and the Nebraska ICWA to overturn the lower court decision not to transfer based on the late stage of the proceedings, and denies the State’s attempt to use best interests in a jurisdictional determination:

In our consideration of whether good cause existed to overrule the motion to transfer, we find the amended BIA guidelines persuasive and instructive. The BIA guidelines were amended during this appeal, and we find them applicable to the case at bar. We hold that a determination that the proceeding is at an advanced stage is no longer a valid basis for finding good cause to deny a motion to transfer jurisdiction to a tribal court. We conclude that the overruling of the motion to transfer denied Appellant a just result.

***

We decline the State’s invitation to change our holding in In re Interest of Zylena R. & Adrionna R., 284 Neb. 834, 825 N.W.2d 173 (2012), for several reasons. First, we note that the amended BIA guidelines expressly provide that it is inappropriate for state courts to conduct an independent analysis of the best interests of the Indian child in determining placement preferences. While this preclusion of a best interests analysis did not specifically refer to transfers of cases to tribal courts, the BIA guidelines further state that whenever a parent or tribe – seeks to transfer the case to tribal court, it is presumptively in the best interests of the Indian child to transfer the case to the jurisdiction of the Indian tribe. Second, we find that the context of the U.S. Supreme Court’s statement in Adoptive Couple v. Baby Girl, supra, did not indicate that the Court intended to impose the best interests standard on motions to transfer.

Since ICWA was passed, there have only been fourteen cases where the appellate court reverses the lower court and orders transfer (out of 133 transfer cases total). There have been 9 cases the appellate court has reversed the lower court’s denial and ordered a hearing consistent with the decision.

The State also engaged in some shenanigans regarding the timing of the procedures:

The juvenile court found that the State had met its burden of showing good cause because the proceeding was at an advanced stage. It reasoned that usually, the date for determining whether the case was at an advanced stage would be the date of the filing of a motion to terminate parental rights. Because the State withdrew its motion for termination of parental rights on January 6, 2015, the court concluded that May 16, 2013, was the date of the State’s petition for adjudication. Using May 16, 2013, as the starting date, it concluded that the proceeding was at an advanced stage.

The juvenile court expressed concern that an Indian parent could play “an ICWA trump card at the eleventh hour” to transfer the case to tribal court. But we point out that the State’s dismissal of its motion to terminate parental rights to avoid a transfer leaves an Indian child suspended in uncertainty. If the State sought a termination of parental rights, the party seeking transfer could file a new motion to transfer and the State could again dismiss the termination proceeding. The juvenile court’s conclusion that the matter was in an advanced stage stemmed from the State’s voluntary dismissal of the termination proceeding.

Finally, there is an extensive partial concurrence and dissent joined by three Justices, explaining that the Court’s reliance on the 2015 Guidelines is due to their alignment with the Nebraska ICWA (most recently amended in 2015), and a lengthy discussion of how Nebraska should define “good cause” in the transfer provision. Ultimately, the dissent/concurrence stated:

In summary, I agree with the majority that the mere advanced stage of the proceeding should no longer be good cause to deny a motion to transfer to tribal court. But because we announce a significant change in the law today, I respectfully disagree with the majority’s disposition of this case, and suggest the better disposition would be to vacate, and remand for further proceedings, and in doing so, I would provide further guidance on the applicable standard of review, the appropriate quantum of proof, and the proper parameters of good cause to deny a transfer under ICWA and NICWA. For these reasons, I both concur and dissent in the opinion of the court.

DOJ Wins Motion to Dismiss in NCFA v. Jewell (2015 Guidelines Litigation)

Kate Fort4 Comments

This is a big win–the Judge dismissed all claims, including the equal protection and substantive due process ones. In addition, there’s good language for the eventual ICWA regulations.

Here is the order.

This Court GRANTS Defendants’ Motion to Dismiss For Lack of Subject-Matter Jurisdiction and for Judgement on the Pleadings because: (1) Plaintiffs’ claims are precluded by this Court’s October 20, 2015 Memorandum Opinion in which the Court held that Plaintiffs lack standing to challenge the Guidelines, that the Guidelines are not justiciable as a “final agency action,” and that the Guidelines are non-binding interpretive rules; (2) BAF has not demonstrated any authority to support its equal protection, due process, or Indian Commerce Clause claims; (3) the 2015 Guidelines do not commandeer state entities; and (4) BAF has failed to plead a Bivens action.

(emphasis added)

And:

…even if the 2015 Guidelines were legislative rules, rather than interpretive guidelines that do not mandate state court compliance, the 2015 Guidelines still would not commandeer state entities to comply with its regulations… Just as Congress may pass laws enforceable in state courts, Congress may direct state judges to enforce those laws.

As a personal side note, there so many great people who have worked on this litigation since it was filed in May, and they all deserve thanks.

DOJ Prevails in Partial Motion for Summary Judgment in NCFA v. Jewell (Guidelines Litigation)

Kate Fort

Order was issued on September 29th, but the Memorandum Opinion was issued today.

This Court DENIES Plaintiffs’ for Partial Summary Judgment because (1) Plaintiffs lack standing to challenge the 2015 Guidelines, (2) the 2015 Guidelines are not “final agency action” within the meaning of the APA because they do not create legal rights and obligations, and (3) the 2015 Guidelines are non-binding interpretive rules not subject to APA notice-and-comment procedures.

Previous filings are here.