Somehow the final passage (“royal assent”) of this bill in Canada slipped our attention back in June. Initially, we saw it referred to as a “Canadian ICWA”, but it seems fair to say that it doesn’t quite achieve that level of protection for Native children and families. If nothing else, it illustrates just how differently the Canadian government engages with the tribal nations within its borders compared to the U.S.. We want to add a large caveat, which is that none of us are experts on Canadian law or child welfare.
However, those that are put together a really helpful publication which is available here, and is well worth your read (it made us think about if ICWA would get passing grades):
From the Jurisdiction section of the report:
Why We Give the Bill a ‘D’ on this:
IN A HISTORIC FIRST FOR CANADA, the Bill purports to recognize Indigenous peoples’ inherent jurisdiction. For example, section 8(a) of the Bill affirms “the rights and jurisdiction of Indigenous peoples in relation to child and family services”. This positively worded language is also noted in the Bill’s introduction and summary. Similarly, section 18(1) states that the “inherent right of self-government recognized and affirmed by section 35 of the Constitution Act, 1982 includes jurisdiction in relation to child and family services, including legislative authority in relation to those services and authority to administer and enforce laws made under that legislative authority.” Section 18(2) affirms that this right includes the right to “provide for dispute resolution mechanisms.”
As there are no section 35 cases that recognize an inherent right of self-government for Indigenous Peoples or that have recognized an Aboriginal or Treaty right over child and family services law-making, this is a significant step forward.
This is not, however, a recognition of jurisdiction that removes all federal or provincial oversight, power or intervention. By recognizing jurisdiction over child and family services as a section 35 right, the federal government immediately re-asserts its power to unilaterally infringe or limit that right, a power upheld by court cases such as Sparrow. The legislation sets legal limits in terms of Indigenous laws being subject to Charter and Canadian Human Rights Act and the BIOC. It also sets practical limits in terms of the virtual necessity of negotiating coordination agreements with the federal and provincial governments, and in the glaring absence of any provisions for funding. At best, this could be interpreted as an acknowledgment of concurrent (or shared) jurisdiction, a matter on which Bill C-92 should be more clear.
Further, section 23 states Indigenous laws only authoritative if they can be applied in a way that “is not contrary to the best interests of the child.” As previously stated, Indigenous laws have upheld the best interests of Indigenous children for thousands of years. The concern about this limit is how the BIOC doctrine has been interpreted and applied by courts, non-Indigenous governments and decisions makers to apprehend Indigenous children and separate them from their families, communities and territories for the past 50 plus years.
October 23-25, 2019
American Indian Children and the Law by Kathryn “Kate” E. Fort, Director of the Indian Law Clinic at Michigan State University College of Law, is now available. Click here to order.
“Introduction: This casebook is the result of years of discussions with Native lawyers, law students, families, tribal leaders, and professors. Because Native children and families continue to be the subject of constant litigation and federal policy changes, this book changed dramatically in the years as it was being written. The actions of federal and state governments against Native children — removing them from their families, culture, language, and communities — has had far ranging implications for generations of families. This casebook discusses the consequences of those actions and the tribal responses to them.”
Not sure what’s in the water today, but here.
Also, not innovative and I’m going to go with illegal:
An investigative report by WDRB in Louisville, Kentucky recently exposed a particularly innovative — although likely illegal — method that the state’s child protective services caseworkers came up with to remove children from their families without court approval.
According to the report, Cabinet for Health and Family Services workers kept stacks of blank emergency removal orders that were pre-signed by local district court judges. This allowed caseworkers to take custody of children without having a judge properly review the allegations or evidence beforehand. Attorneys and judges interviewed for the report compared the practice to a police officer creating their own search warrant without a judge’s approval.
This case is not an ICWA case, but for those who work in this area, it is a familiar fact pattern, and one of the rare times the appellate court overturned the TPR based on lack of evidence. In addition, the press covered both this case, and did a second article on what it means to have “confidential” child welfare cases and provides a fair amount of nuance.
Opinion: 1 CA-JV 18-0322
We hold that a termination based on fifteen-months’ out-of-home placement requires the court to consider the totality of the circumstances throughout the dependency when determining whether the Department of Child Safety (“DCS”) made a diligent effort to provide appropriate reunification services, including whether DCS’s failure to act reasonably and diligently contributed to the circumstances causing the child to remain in out-of-home placement. We further hold that a request through the Interstate Compact on the Placement of Children (“ICPC”) is not required when the evidence does not support a dependency concerning the out-of-state parent.
Dad was not married to mom and did not know the child had gone into DCS care at birth. When he contacted the case worker, he was deemed immediately unfit.
Relating to Father, the primary cause of Melody’s out-of-home care was the court’s dependency finding in May 2015. At that time, no evidence showed that Father was an unfit parent, or that living with Father was contrary to Melody’s welfare. Melody had been in DCS’s custody since birth. Father contacted DCS when Melody was less than one month old. Nevertheless, without any investigation, DCS filed a petition alleging that Melody was dependent due to abuse or neglect as to Father.
Despite Mother’s deception in telling Father that he was not Melody’s father, he called Mother’s husband, found out Melody was in DCS’s care, and immediately contacted DCS requesting a paternity test. The case manager told Father to contact the juvenile court, which he did. Father diligently complied with the ordered paternity test, appeared for the hearings, participated in parenting classes, and contested the allegations in the dependency petition.
DCS also required an ICPC (interstate compact on the placement of children) review for the child to be placed with her father in California–though again, there was no actual evidence of unfitness. This is a fact pattern we have dealt with in ICWA cases out of Arizona as well.
An ICPC is not required when evidence does not support a dependency as to the out-of-state parent. See In re Emoni W., 48 A.3d 1, 6 (Conn. 2012) (ICPC does not apply to out-of-state non-custodial parent); accord In re C.B., 116 Cal. Rptr. 3d 294, 302 (Cal. Ct. App. 2010); In re Alexis O., 959 A.2d 176, 182 (N.H. 2008). An ICPC is intended for out-of-state placement of a dependent child. A.R.S. § 8-548, art. II(d) (“’Placement’ means the arrangement for the care of a child in a family free or boarding home or in a child-caring agency . . . .“); A.R.S. § 8-548, art. III(a) (“No sending agency shall send, bring, or cause to be sent or brought into any other party state any child for placement in foster care or as a preliminary to a possible adoption [without complying with the ICPC].” (emphasis added)).
Thus, when DCS discovers that a child in its care has an out-of-state parent, the regulation allows it—in addition to the conventional mechanisms it employs to investigate a parent—to request a courtesy check from the parent’s home state. Accord In re Emoni W., 48 A.3d at 11 (an agency can investigate an out-of-state parent without an ICPC). The ability to request a courtesy check, however, does not authorize DCS to hold a child in its care for an indeterminant amount of time simply because it lacks an ICPC approval. Unless DCS has a reasonable basis for believing the out-of-state parent is unfit, it must turn over the child to the parent.
The Court cited to Vivek Sankaran’s article on this very issue, Vivek S. Sankaran, Out of State and Out of Luck: The Treatment of Non-Custodial Parents Under the Interstate Compact on the Placement of Children, 25 Yale L. & Pol’y Rev. 63, 80 (2006).
By all accounts, dad was a good dad to his other children in California. The trial court went on to terminate parental rights regardless.
Reading this opinion should be infuriating. The visitation “plan” alone makes a person’s heart rate climb to unhealthy levels on a plane, as my watch unhelpfully pointed out (“DCS
falsely claimed lied and said that “Father ha[d] failed to keep most of the weekly appointments for telephonic contact with the child.” ¶62 The foster mother reported that Father missed only five calls of the fifty days on which Father would have been scheduled to call in that period.”), and is a reminder of the absolute need for very good individual party attorneys in the child welfare system. This is a well written and well reasoned opinion by the Court of Appeals.
PDF version here. Direct questions to email@example.com.
While the Court of Appeals found that the grandmother didn’t have standing and properly dismissed the case, opinion notes the Tribal Court had already been exercising jurisdiction over the child in a concurrent child custody matter.