Application of ICWA Case out of Arkansas Court of Appeals

This is an interesting and frustration case on the law. There are a few states, and I believe both Arkansas and Missouri are two, where a parent has to preserve any ICWA issue for appeal. That is not the case in a number of other states. But in this case, the agency and state attorney agree there was error in not noticing the Tribe (Klamath) on the TPR, and that this failure could upend any permanency findings under 25 U.S.C. 1914. They ask the court to remand for notice. However, the Court held:

Accordingly, we cannot rely on Dominguez to remand in this instance. Unlike the situation in Dominguez, the final order herein terminated both parents’ rights, leaving no parental right unaddressed. Here, the application of the ICWA cannot be addressed on remand without reversing the circuit court’s TPR order. We hold that the ICWA issue is not preserved for appellate review.

Adjudication orders are immediately appealable. Ark. Sup. Ct. R. 6-9(a)(1)(A) (2019). A parent’s failure to appeal rulings made in an adjudication order precludes appellate review of those findings in an appeal from a subsequent order. Ashcroft v. Ark. Dep’t of Human Servs., 2010 Ark. App. 244, at 8, 374 S.W.3d 743, 747. No party appealed the circuit court’s findings that the ICWA did not apply or that neither Amanda nor A.W. were members of an Indian tribe. Further, we have held that compliance with the notice requirements of the ICWA must be raised below in order to be preserved for appellate review. Lauman v. Ark. Dep’t of Human Servs., 2010 Ark. App. 564, at 2.

I’m also just going to leave the facts here about the ruling, re. application of ICWA:

The court noted that Amanda had provided a roll number for the Klamath Modoc tribe at the probable-cause hearing, that the Klamath Modoc tribe had been notified on February 12, and that the tribe had not responded nor contacted DHS; therefore, the court found that “at this time,” the ICWA “does not apply.” In a separate finding, the circuit court stated, “[Amanda] does not have membership in or descent from an Indian tribe; the legal father does not have membership in or descent from an Indian tribe; the juvenile does not have membership in or descent from an Indian tribe.”

Another (unpublished) Arkansas ICWA Case Lacking Strong Parent Representation

Here. Another reason for more parent attorney partnerships and training. Matthew noted this happened last September in Arkansas too. From the opinion, it’s not remotely clear the agency notified the Cherokee tribes of dad’s claim here.

In addition to the termination of Daniel’s parental rights, the trial court found ICWA did not apply. His counsel explains that this finding does not provide a meritorious basis for reversal, and we agree. Daniel attempted to establish the applicability of ICWA at the outset of the termination hearing—despite the fact the trial court had earlier determined that ICWA did not apply in the probable-cause order dated July 8, 2015. The only documentation he submitted in support of his assertion was a form application for membership in the Cherokee Nation he filed only a couple of days prior to the hearing. In order to establish the applicability of ICWA, a child who is the subject of a dependency neglect action must be an “Indian child,” which is defined as any unmarried person who is under eighteen and is either (a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe. 25 U.S.C. § 1903(4). Here, there was no evidence A.B. and D.B. satisfied these requirements. It is undisputed the children are not members of an Indian tribe, and the only evidence submitted was the form application prepared by Daniel two days before the hearing—there was no evidence the application had been accepted or that the children were in any other way eligible for membership, and there was not even any evidence Daniel was their biological father, although he did not dispute that fact. This issue provides no meritorious basis for reversal.

In more than one state, this would provide a meritorious basis for remand at minimum, and maybe reversal. It’s fair that it might not yet be a basis for reversal in Arkansas, but it’s clearly time for someone to bring the argument.


(Why yes, I am currently on a four hour flight, and have a backlog of ICWA cases to post . . .)

Parent’s Attorney Misunderstands ICWA; Arkansas COA Goes Along With It

Here is the opinion in King v. Arkansas Dept. of Human Services (Ark. Ct. App.):

King v Ark DHS Opinion

Maybe it’s a little thing, maybe not, but the court allowed an attorney to withdraw from representation, in part, on this representation:

The remaining adverse ruling was the denial of Hailey’s motion for a continuance, which was based on her assertion D.K. is an Indian child within the meaning of the Indian Child Welfare Act, entitling the Kiowa Tribe to notice of the proceedings. As explained in counsel’s brief, an Indian child is defined as “any unmarried person who is under age eighteen [8]  and is either (a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe[.]” (Emphasis added.) 25 U.S.C. section 1903(4). Counsel further explains D.K.’s paternal grandmother, who was an enrolled member of the Kiowa tribe, testified that D.K.’s father, her son, was not eligible for membership in the Kiowa tribe because she was the last generation to satisfy the tribal requirement of at least one-quarter blood. Thus, her son could not be a member of the tribe. She further explained that her son was not enrolled in the Cherokee tribe either, even though he was allowed to receive medical treatment through the Cherokee Nation because she is a registered Indian and is his mother. As noted by counsel, “even if the father were eligible to be enrolled as a Cherokee, that fact is not relevant because the statute requires that he actually be enrolled in order for D.K. to be considered an Indian child.” We agree. D.K. is not an Indian child under the Act; consequently, it did not apply. Therefore, the trial court did not err in denying the motion for continuance because notice to an Indian tribe was not required.

Unfortunate, because the first step for parents’ counsel (and the child’s attorney most especially) should be to figure out whether an unenrolled parent is eligible for membership, get that parent enrolled, and get the tribe involved. Perhaps parent’s counsel is overworked and didn’t have the time or resources to make the effort, but did take the effort to file a notice of appeal. Deeply unfortunate, and likely endemic to the state system. The court of appeals could have done good work here and remanded to require counsel to perform diligently.

Arkansas COA Decides ICWA Case — ICWA as Best Practices

Here is the opinion:

Stevens v Ark Dept of Human Services

An excerpt:

Even though the child’s father had not produced the ordered evidence of eligibility for Choctaw membership, the trial court utilized the higher evidentiary standard of proof beyond a reasonable doubt, which is required under the Indian Child Welfare Act, 25 U.S.C. §§ 1901 to 1963 (2010). The trial court found that DHS had used reasonable and active efforts to rehabilitate Kayla and prevent the dissolution of an Indian family; that DHS had complied with ICWA requirements; and that DHS had demonstrated the likeliness of serious emotional harm if returned to the parent. In addition, the trial court found that J.S. was adoptable and that termination was in her best interest.

Arkansas Court of Appeals Decides ICWA Notice Case

The court held that the trial court was correct in refusing to comply with the ICWA notice requirement when the father claimed Western Cherokee Nation of Arkansas and Missouri heritage.

Here is the opinion in Heard-Masterson v. Arkansas Dept. of Human Services.

McMillon v. Lost Cherokee of Arkansas and Missouri, Inc. — Probate Case

Strange little case involving the Lost Cherokee of Arkansas and Missouri, Inc. — here is the opinion, which will be published in the Southwest Reporter. From the majority opinion:

This appeal arises from a petition to clarify a will filed by First State Bank in which it asked the court to clarify several issues, including whether the references in the will of Opal Gefon to “savings and checking account” and “remainder of my savings and checking” included the cash located in the decedent’s safety deposit box. Appellants, heirs of the decedent Opal Gefon, assert only one point of error on appeal: The trial court was clearly erroneous in finding that appellee Lost Cherokee of Arkansas and Missouri, Inc. was entitled to the $226,000 in cash located in the decedent’s safety deposit box at the time of her death. We find no error and affirm.

The dissent seems to have a point:

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