Child Welfare

ICWA Placement Preference and Burden of Proof Case Out of Oklahoma Supreme Court

Kate Fort1 Comment

Here.

The Honorable Wilma Palmer, Special Judge, for the District Court of Tulsa County, ordered the transfer of a minor child S.A.W., from a foster home to a home compliant with the Indian Child Welfare Act. The State, natural father, natural mother, child, and foster mother appealed. The Court of Civil Appeals reversed the order of the district court and the Cherokee Nation sought certiorari. We previously granted certiorari. We hold that appellants failed to satisfy their burden that natural father was not a member of his tribe. The Cherokee Nation met its burden to show that the child was subject to the Indian Child Welfare Act. We hold that when a tribe fails to provide timely temporary foster care with an ICWA-compliant home and an ICWA-noncompliant family seeks a permanent placement, the trial court should consider harm to the child resulting from a tribe’s untimely motion to move the child to an ICWA-compliant home. We hold the proper standard for a party showing a need for an ICWA-noncompliant child placement is clear and convincing evidence, and that appellants met this burden. We reverse that portion of the trial court’s order directing an ICWA-compliant placement. We hold that the appellants’ additional arguments for challenging application of the ICWA are insufficient and affirm the trial court in part, and remand for additional proceedings.

 

Latest Issue of The First Peoples Child & Family Review

Kate Fort

Table of Contents here.

This issue includes Finding their way home: The reunification of First Nations adoptees by Ashley L. Landers, Sharon M. Danes, and Sandy White Hawk.

First Five Recommendations of Canada’s TRC Report Involve Child Welfare

Kate Fort

CBC story here.

Recommendations/Calls to Action here.

Child welfare
1. We call upon the federal, provincial, territorial, and Aboriginal governments to commit to reducing the number of Aboriginal children in care by:

i. Monitoring and assessing neglect investigations.

ii. Providing adequate resources to enable Aboriginal communities and child-welfare organizations to keep Aboriginal families together where it is safe to do so, and to keep children in culturally appropriate environments, regardless of where they reside.

iii. Ensuring that social workers and others who conduct child-welfare investigations are properly educated and trained about the history and impacts of residential schools.

iv. Ensuring that social workers and others who conduct child-welfare investigations are properly educated and trained about the potential for Aboriginal communities and families to provide more appropriate solutions to family healing.

v. Requiring that all child-welfare decision makers consider the impact of the residential school experience on children and their caregivers.

2. We call upon the federal government, in collaboration with the provinces and territories, to prepare and publish annual reports on the number of Aboriginal children (First Nations, Inuit, and Métis) who are in care, compared with non-Aboriginal children, as well as the reasons for apprehension, the total spending on preventive and care services by child-welfare agencies, and the effectiveness of various interventions.

3. We call upon all levels of government to fully implement Jordan’s Principle.

4. We call upon the federal government to enact Aboriginal child-welfare legislation that establishes national standards for Aboriginal child apprehension and custody cases and includes principles that:

i. Affirm the right of Aboriginal governments to establish and maintain their own child-welfare agencies.

ii. Require all child-welfare agencies and courts to take the residential school legacy into account in their decision making.

iii. Establish, as an important priority, a requirement that placements of Aboriginal children into temporary and permanent care be culturally appropriate.

5. We call upon the federal, provincial, territorial, and Aboriginal governments to develop culturally appropriate parenting programs for Aboriginal families.

Additional Findings from NNI/NICWA on Tribal Child Welfare Codes

Kate Fort

Here.

Researchers reviewed 107 publicly available, tribal child welfare codes for U.S.-based tribes with populations ranging from 50 to 18,000 citizens. Researchers sought out the most up-to-date tribal child welfare codes available for each tribe, reporting that approximately 45% of the 107 codes were amended after 2000. The research team analyzed over 100 variables on the topics of culture, jurisdiction, tribal-state relationships, child abuse reporting, paternity, foster care, termination of parental rights, and adoption. A more detailed report on this study will be released later this fall. For more information about this project and its findings please contact the Native Nations Institute: Mary Beth Jäger (Citizen Potawatomi) jager@email.arizona.edu.

Cool poster here. First cool poster here.

Survey of Tribal Child Welfare Codes by NNI and NICWA

Kate Fort1 Comment

Poster version of the research here.

NACC Blog Post by Prof. Sankaran on State Child Welfare Court Systems

Kate Fort2 Comments

Here.

While judges are legally required to play the role of the rights-protector, in practice, they are sent a different message. They are encouraged to collaborate with child welfare agencies, even while litigation is pending before them involving that same agency. They are implicitly – or explicitly – told not to make negative findings against the agency for fear that such a finding could jeopardize the agency’s funding. In fact, judges are invited to participate in inter-agency task forces on how to make “better” findings to appease federal auditors. And they celebrate when their state agency secures federal funding based on the drafting of their orders.

Report Released by the Maine Wabanaki-State Truth and Reconciliation Commission

Kate Fort

Here. (78 pages, pdf).

We further assert that these conditions and the fact of disproportionate entry into care can be held within the context of continued cultural genocide, as defined by the Convention on the Prevention and Punishment of the Crime of Genocide, adopted by the United Nations General Assembly in 1948. In particular, the convention notes that genocide means “any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group.” We posit that Article 2, Sections b and e –“Causing serious bodily or mental harm to members of the group” and “Forcibly transferring children of the group to another group” – apply to what Wabanaki communities face here in Maine.
***
This, too, we found to be true: providing and sustaining preventive support to Native families might be of the greatest use of all. One Wabanaki service provider commented, as did many, that tribal people view child rearing as the responsibility of an extended network of kin and connections. This person noted that the best way to help children is to “strengthen families as a whole and communities as a whole to be able to step up and care for kids when things aren’t optimal in their home lives so they don’t ever even need to enter the system.” (11/4/14)

Many of those who work in the state child-welfare system share this exact desire. When reflecting on the process of being involved with the Commission, a DHHS supervisor wrote, “This has been an amazing journey to bring truths to light. To bravely state fact, to move through and past pain toward healing. My vision for the future is a strong family system without the need for foster care.” (4/9/15)

The report ends with 14 recommendations, and comes out amid tensions between tribes and the state over fishing, water quality standards, and jurisdictional concerns.

WaPo Column on Anonymous Child Abuse Hotlines

Kate Fort

Here.

These hotline practices can result in unnecessary trauma to parents and children. In Texas, a family had lost their apartment after the father lost his job as a welder. They were living temporarily in a spacious storage shed, which had air conditioning and a refrigerator, because they felt that the local homeless shelter was unsafe.  A passerby made a call, a caseworker appeared at the shed, and the state immediately took custody of the children without offering any preventive services. A court hearing was not set for two months. During those two months, the parents were only allowed to visit their children for less than an hour a day.

Hotline practices also disproportionately affect poor people of color. Many studies show the disparate treatment of minorities and impoverished families in the child welfare system. Black children are twice as likely to be reported as white children, while minority parents are more likely to receive higher levels of state intervention following a report.

ICWA and MIFPA Training in Macomb County

ilpc1 Comment

Today we did a (long) lunch session on ICWA and MIFPA for state court personnel in Macomb County. Thanks to the Macomb criminal and juvenile law committees for inviting us.

Kate Fort, Michelene Eberhard (chair of the criminal law committee), and Maribeth Preston from SCAO.

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APTN Report on Number of Native Kids in Care in Canada

Kate Fort

The numbers are mind boggling, to say the least. Here.

Over 5,000 Aboriginal children are in care of the province of Alberta. They represent nearly 70 per cent of kids.

The number grows to 5,600 Aboriginal children in Saskatchewan or 83 per cent of all kids in care.

But it’s Manitoba that has the highest numbers.

More than 10,000 Aboriginal children, 87 per cent, are under the care of the province.