This is a very long decision, but the court’s discussion of appealability of the order is an interesting one.
We rarely post unpublished ICWA cases because otherwise that’s all we would do. However, in this case involving an analysis of active efforts, the court found that:
Efforts made in this case included facilitating supervised visits, providing family support hours, drug testing, offering parenting classes to Nathaniel, placing Aviyanah in a NICWA-compliant foster home, and taking steps to enroll Aviyanah in the Rosebud Sioux tribe. Additionally, Nathaniel was provided transportation to visitations and during his job search.
This is not an active effort. This is the minimum requirement of 25 U.S.C. 1915 (placement preferences).
While this article doesn’t talk about Native children populations, this is an aspect of foster care I always teach, and often law students find it surprising that children are moved out of their school district (and related sports teams, academic teams, IEPs, etc. etc.) when they are removed from their home. Federal law (not ICWA) requires kiddos who go into foster care to stay in the same school system, and yet:
When children are taken from their parents and placed in foster care, or when they change foster homes, caseworkers are required to convene a “best-interest determination” to decide whether the child should switch schools or stay put. The meeting includes teachers and school staff, parents, and in some cases, the child.
According to a state data sample of children who changed schools, that meeting happened before the school switch just 11 percent of the time in Colorado last year. More often than not, the meeting happened after the student had already transferred or didn’t happen at all.
Emphasis added. And this is in a state where the legislature ALLOCATED FUNDING for this federal requirement. To bring it into the ICWA world, while required by a separate federal law, I might still consider it active efforts to keep a kiddo in the same school district. It’s also just confounding to me the number of things required by both state and federal law that just simply do not happen in these cases (just in case you wondered what has Kate Fort cranky today. Also, this report which should be a totally different post about parents and active efforts and incarceration).
4. We are aware of the recent decision of the United States District Court for the Northern District of Texas holding parts of ICWA, including its placement preferences, unconstitutional. Brackeen v. Zinke, No. 4:17-cvoo868-0, 2018 WL 4927908 (N.D. Tex. Oct. 4, 2018). However, the decision may be appealed and ICWA has previously been upheld by the United States Supreme Court. Miss. Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 109 S. Ct. 1597, 104 L. Ed. 2d 29 (1989). Moreover, we are not bound by the decision of the District Court in Texas and must presume that ICWA is constitutional. U.S. v. v. Nat’l Dairy Prods. Corp., 372 U.S. 29, 32, 83 S. Ct. 594, 597, 9 L. Ed. 2d 561 (1963) (noting that Acts of Congress have “strong presumptive validity’); State v. Rolfe, 2013 S.D. 2, ¶ 13, 825 N.W.2d 901, 905 (“Statutes are presumed to be constitutional[.]”).
The Father argued the state failed to provide active efforts when the children were not placed within the placement preferences. The Court did not agree with his argument.
This case discusses how private parties (grandparents) can provide active efforts in a guardianship situation. This further develops this state case law in this area, most recently addressed in In re Micah H. (Neb. 2016), In re T.A.W. (Wash. 2016) and In re S.S. (Ariz. Ct. App. 2017):
In this case, Tyler was counseled by Linda concerning his drug and alcohol problems. The record shows that Linda suggested
multiple treatment programs in which Tyler could seek rehabilitation for his addiction. However, Linda and Daniel had no control with regard to forcing Tyler to seek treatment.
The record demonstrates that Linda and Daniel discussed proper parenting techniques and interactions with small children. Further, Linda and Daniel assisted with scheduling visitation
and the implementation of a parenting plan. Tyler demonstrated no need for housing, financial support, or transportation
to unite with Micah. Despite Tyler’s numerous criminal convictions involving drugs and alcohol, Tyler maintained that he
does not suffer from drug or alcohol addiction.
With the exception of completing parenting classes while in prison, Tyler has not sought to actively participate in drug and alcohol treatment or support programs. In fact, Tyler has attended only one Alcoholics Anonymous meeting while in prison, at the invitation of another, and suggested to the court
below that his presence at the meeting was for the purpose of supporting others in the program.
Based on the specific facts and circumstances of this case, we find that Linda and Daniel undertook active efforts to provide
remedial services and rehabilitative programs designed to unite Tyler and Micah.
We are wrapping up a training in Montana where every person in the room answered the ICWA pop quiz question: “Do ICWA protections apply to non-Native parents of Indian children?” correctly. Luckily the Michigan Court of Appeals answered it correctly as well. The Court of Appeals also provides an excellent discussion of why Adoptive Couple v. Baby Girl did not apply to this, and similarly situated cases. There is a lot of useful language in this case for attorneys who continue to run into these issues in trial court across the country.
The trial court applied the appropriate heightened standards or
burdens when terminating respondent-mother’s parental rights, but it failed to apply them when terminating the parental rights of respondent-father, ostensibly because the Indian heritage of the children is solely through their mother’s bloodline. Respondent-father argues that ICWA and MIFPA standards govern the termination of his parental rights, considering that TB is his biological child and an Indian child, regardless of respondent-father’s personal heritage. We agree and conditionally reverse the termination of respondent-father’s parental rights to TB and remand for proceedings consistent with ICWA and MIFPA, as well as MCR 3.977(G).
In addition, however, the Court correctly analyzed whether Adoptive Couple v. Baby Girl applied to this case, and raised this issue sua sponte “whether the heightened standards of ICWA, MIFPA, and MCR 3.977(G) should apply to the termination of respondent-father’s parental rights when he never had legal or physical custody rights in regard to TB.”:
Given the equivocal nature of Justice BREYER’s concurrence [in Adoptive Couple], it cannot truly be said that a majority of the United States Supreme Court created an inflexible rule for purposes of “continuing custody” analysis under § 1912(f), as well as the analysis of § 1912(d). And even assuming the contrary, it certainly is not clear whether the Supreme Court would impose the rule based solely on whether a parent had physical custody, in the strictest sense of the term under the law, where a custodial-like environment existed on a practical level absent any technical custodial rights.
We hold that under the particular facts of the instant case, which are entirely dissimilar to those in Adoptive Couple where the father effectively abandoned the child from birth and even in
utero, the beyond-a-reasonable-doubt standard applies to the termination of respondent-father’s parental rights, although he never had legal or physical custody rights, as those terms are legally employed. When DHHS’s petition was filed in August 2015 and for a period thereafter, respondent-father, respondent-mother, and TB lived together as a familial unit wherein respondent-father was providing some care and custody for TB. And petitioner was providing
reunification services. The family unit dissolved only when TB was removed by court order, although respondents remained together. The removal of TB discontinued the custodial arrangement that had existed with respect to both respondents and TB, if not in law, in practice.
Appellant M.D. (Father) challenges the Thirteenth Judicial District Court’s decision to terminate his parental rights to his minor child, A.L.D. Father contends that the State of Montana’s Department of Public Health and Human Services (Department) did not provide the active efforts required under 25 U.S.C. § 1912(d) to prevent the breakup of an Indian family; that A.L.D. was placed in a foster home in violation of the placement preferences set forth in 25 U.S.C. § 1915; and that Father’s attorney provided ineffective assistance of counsel. We affirm.
Here is SB 616.
Here is the press release.
Here is some news coverage.
This bill was driven entirely by the tribes in Michigan–especially the in-house ICWA attorneys and tribal social workers who have been expressing concern with not getting enough information to ensure a family is receiving active efforts prior to a foster care placement.
This is the cert petition from the Arizona Court of Appeals decision applying ICWA to step-parent or third party adoptions, where Dad attempted to terminate Mom’s rights so Step-Mom could adopt children.
Cert petition filed by the Goldwater Institute purportedly on behalf of the children.
Amicus in Support of the Cert Petition filed by the Pacific Legal Foundation
Brief in Opposition filed by the Colorado River Indian Tribes
This case delves deeply into the qualifications of a qualified expert witness under the 2015 BIA Guidelines. Those requirements were pretty specific, and as the court points out, prioritized cultural knowledge of the child’s tribe.
The 2015 Guidelines don’t govern cases initiated AFTER December 12, 2016, and instead the federal regulation (81 Fed. Reg. 38873; 25 CFR pt. 23.122) provides the definition and context of qualified expert witnesses. That definition (“a qualified expert witness must be qualified to testify regarding whether the child’s continued custody by the parent or or Indian custodian is likely to result in serious emotional or physical damage to the child and should be qualified to testify as to the prevailing social and cultural standards of the Indian child’s Tribe”) provides far less guidance to the court as to who can be a QEW. The regulation further states a QEW may be designated by the child’s tribe, and may not be the “social worker regularly assigned to” the child. The 2016 Guidelines now argue that specific professional knowledge might be more important than cultural knowledge. That may have been more helpful to the parent’s argument in this case.