data

AFCARS Tribal Comments Needed-June 13 Deadline

Kate Fort

The Administrating is reconsidering the burdens of the Obama Administration’s Final Rule to collect data on American Indian/Alaska Native children in foster care through the Adoption and Foster Care Analysis and Reporting System (AFCARS). Comments are due June 13. Previous posts explaining this call for comments are here and here and here.

If you are interested in reviewing model comments for tribes stating the data elements should remain intact, please email Delia Sharpe (California Tribal Families Coalition)  at delia.sharpe@caltribalfamilies.org or me at fort@law.msu.edu

We will both be at the California ICWA conference today and tomorrow.

HHS in the News, and in Regulations, and in Lawsuits

Kate Fort1 Comment

Late last week, this article from Politico started making the rounds:

But the Trump administration contends the tribes are a race rather than separate governments, and exempting them from Medicaid work rules — which have been approved in three states and are being sought by at least 10 others — would be illegal preferential treatment. “HHS believes that such an exemption would raise constitutional and federal civil rights law concerns,” according to a review by administration lawyers.

The Tribal Technical Advisory Group sent a letter to Administrator Verma, linked to in the article and also posted here. The Dear Tribal Leader letter from CMS is attached as an appendix to that letter. As the article states, the letter says “Unfortunately, we are constrained by statute and are concerned that requiring states to exempt AI/ANs from work and community engagement requirements could raise civil rights issues” with no further explanation.

Centers for Medicare & Medicaid Services (CMS) is a division of the Department of Health and Human Services (HHS). So is the Administration for Children and Families (ACF), which has recently called into question the Final Rule on collecting additional data on children in foster care, including important elements on ICWA and also LGBTQ+ kiddos.

Since the election, there have been articles describing VP Pence’s interest in HHS:

On Monday, President Donald Trump nominated Alex Azar, a former Indianapolis-based drug executive and longtime Pence supporter as Health and Human Services secretary. If confirmed, Azar would join an Indiana brain trust that already includes Centers for Medicare & Medicaid Services Administrator Seema Verma and Surgeon General Jerome Adams. Two of Verma’s top deputies — Medicaid director Brian Neale and deputy chief of staff Brady Brookes — are former Pence hands as well, as is HHS’ top spokesman, Matt Lloyd.

Finally, in late March, Texas, which had added two additional states as plaintiffs in the first amended complaint–Indiana and Louisiana–amended their complaint in Texas v. Zinke to include HHS and Secretary Azar as defendants in the ICWA lawsuit, where Count IV claims ICWA’s placement preferences violate the Equal Protection Clause of the Constitution.

 

 

 

Tribal Consultation on the Proposed AFCARS Changes

ilpc1 Comment

Here is the letter sent today: Tribal Consultation Notification 4-16-2018

This is on the proposed changes to the Adoption and Foster Care Analysis and Reporting System (AFCARS), the way the feds collect from the states on adoption and foster care. This is specifically about removing ICWA data elements added in last year’s final rule because of the burden of collecting information about ICWA compliance and Native kids in care.

Both consultations will be done by phone, and if there are not enough participants “may end early”. Maybe tribal leaders or their designees would like to consult about how to weigh that “burden” of gathering information so tribes and states know what is happening with Native kids in foster care for the full 90 minutes:

Tribal Consultation seeking input on the ANPRM and potential changes to AFCARS will be held through two teleconference calls on the following dates and times.

Tuesday, May 15, 2018 @ 2:00 pm – 3:30 pm (EDT).

Please register here: https://acf.adobeconnect.com/efdd2gqe733x/event/registration.html

Wednesday, May 16, 2018 @ 2:00 pm – 3:30 pm (EDT)

Please register here: https://acf.adobeconnect.com/enhysqrbcyal/event/registration.html

For both consultations, the call-in number and passcode are: 877-917-3403, Passcode: 2498350. (Please note, if there are a small number of participants on the call, the call may end sooner than 3:30 p.m.)

Both Tribal consultation teleconference calls are open to all tribal leaders or their designees and may address any aspect of the ANPRM’s request for comments on AFCARS data collection, including data elements relating to ICWA that would reported by states and all other AFCARS elements that would be reported by both states and tribes operating title IV-E programs. Overall, we are interested to hear both recommendations on data elements to retain with a justification for using the data at the national level and recommendations on any data elements to remove because they may be either overly burdensome for title IV-E agencies to report or may not be reliable or necessary at the national level.

In addition to participating in the tribal consultation conference calls, the Children’s Bureau encourages tribal leaders to submit comments in writing in response to the ANPRM, as only written comments may be included in the regulatory record. The deadline for the receipt of written comments in response to the ANPRM is June 13, 2018.

There is also a briefing webinar:

The briefing webinar to learn more about AFCARS will be held on Wednesday, April 25, 2018 from 2:00 pm – 3:30 pm (EDT). If you are interested in participating in this webinar, please register at:

https://acf.adobeconnect.com/afcars/event/event_info.html

Because:

We recognize that while states have many years of experience in reporting AFCARS data, tribes may not be as familiar with AFCARS. To prepare for consultation, the Children’s Bureau is offering a briefing webinar for tribal leaders and/or members of your staff. The briefing webinar will be an opportunity for tribal leaders and members of your staff to learn more about AFCARS, including current data reported by states since the 1990’s and the changes to AFCARS that were promulgated in December 2016, but have not yet been implemented.

If only well over 60 tribes and tribal organizations had submitted comments in support of the additional data elements explaining in great detail why they are needed in the last comment collection on this issue in 2016 . . .

A non-tribal specific information session/briefing webinar earlier this month was problematic on ICWA (at best). There are a number of groups working on written comments, including model versions for tribes. When they are available, we will make sure to post that information. If you’d like to post comments now, here is the comments page.

Previous posts on AFCARS here.

2016 ICWA Appellate Cases by the Numbers

Kate Fort1 Comment

Here’s our annual contribution to the ICWA data discussion. While a few cases might yet come in, we have our final list of 2016 appealed ICWA cases sorted. A note on the data–these are cases that are on Westlaw and/or Lexis Nexis, and ICWA (or state equivalent) was litigated. We collect the case name, the date, the court, the state, whether the case is reported (also called published) or not, the top two issues, up to three named tribes, the outcome of the case, and who appealed the case. These are standard state court ICWA cases, and do not include any of the ongoing federal litigation. We did this last year as well. Sadly no, I haven’t yet published this anywhere but Turtle Talk, and yes, it is next on the to-do list. If you know we are missing a case based on the numbers, and it’s publicly available, *please* send it to me [fort at law.msu.edu] so we can add it. I’m also happy to answer questions at the same email.

There were 175 appealed ICWA cases this year, down 74 from last year. There were 30 reported ICWA cases this year. As always, California leads the states with 114 cases, 10 reported. Michigan is second with 13, 2 reported. Texas, which didn’t have any cases we could find last year, had 7 cases this year, 1 reported. Then Iowa with 6, 1 reported, Oklahoma with 4 reported, Nebraska with 3, 2 reported, and Alaska and Arizona with 3, 1 reported each. States with 2 appealed ICWA cases include Arkansas (none reported), Indiana (none reported), Ohio (none reported), Oregon (2 reported), Washington (1 reported), Illinois (1 reported). Finally the following states had 1 ICWA case: Idaho, New Jersey, New Mexico, South Dakota, Utah, Kansas, North Carolina, Vermont, Kentucky, and Massachusetts.

In California, the cases further breakdown to 37 in the 4th Appellate District, 33 in the 2nd, 24 in the 1st, 9 in the 5th, 6 in the 3rd, and 3 in the 6th. California is the only state where we track by appellate districts at this time.

Supreme Courts in Oklahoma (2), Alaska (2), Idaho, Nebraska (2), South Dakota, California (2), Vermont and Washington all decided ICWA cases this year.

Of the 175 total appeals, 90 were affirmed, 67 were remanded, 14 were reversed, and the four remaining were affirmed in part and reversed in part (1), denied as moot (1), dismissed (1), vacated and remanded (1).

Top litigated issues were as follows: Notice (106), Inquiry (21), Placement Preferences (10), Active Efforts (8), Determination of Indian Child (8), Burden of Proof (5), Transfer to Tribal Court (5), Intervention, Termination of Parental Rights, Existing Indian Family, (2 cases for each one). The other cases with 1 each: Qualified Expert Witness, Indian Custodian, Tribal Customary Adoption, Application to Divorce, Ineffective Assistance of Counsel, Foster Care Placement

52 different tribes are represented in the first named tribe in a case. There were 56 cases involving claims of Cherokee citizenship. Of those appeals, 48 involved issues of notice and inquiry. In 21 cases the tribe was unknown (parent did not know name of tribe). In 14, the tribe was unnamed (court did not record name of tribe in the opinion).

4 cases were appealed by tribes (Cherokee Nation, Gila River, Shoshone Bannock). 92 were appealed by mom, 49 by dad, and 24 by both. Other parties who appealed include agency (1), child’s attorney (1), foster parents (1), great aunt and uncle (1), Indian custodian (1), and state and foster mother (1).

Final AFCARS Rule with ICWA Elements

Kate Fort2 Comments

Here is the final Adoption and Foster Care Analysis and Reporting System Rule incorporating a number of new data elements states will have to report to the feds. These elements include important information on ICWA cases and placements. Many people in our field worked very hard to get these elements included, which required a supplemental notice and comment period.

This is the first time these ICWA data elements will be required by the federal government. The first anticipated annual AFCARS report that will include the information is anticipated by 2020 (thanks, Heather, for this information!).

Preliminary 2015 AFCARS Data Released by DHHS

Kate Fort

Just a reminder that this is the Adoption and Foster Care Analysis and Reporting System data, which is information sent from the state to the federal government about kids in foster care. There is still a pending rule change that would add ICWA-specific data elements to these reports, but it has not yet been promulgated. How Native children are identified by state actors for this report varies dramatically by state (and county), but it is the best data we have at this time.

Here.

Article on the Disparity Between the States Regarding Termination of Parental Rights

Kate Fort1 Comment

Here. Not ICWA-specific, but an interesting article on the wide difference of the states in terminating parental rights.

Across the country, the availability of effective support services is viewed as crucial in helping reduce the need for foster care placements and parental rights terminations, both of which are considered undesirable outcomes for most children.

Professor Martin Guggenheim, a child welfare expert at New York University School of Law, is among those contending that too many parents lose their rights and too many children go into foster care. Parents’ legal prospects vary widely from state to state when it comes to challenging termination, he says; many who are indigent are represented by court-appointed lawyers with heavy caseloads.

Too often, Guggenheim said, terminations produce “legal orphans” — young people who are separated from their parents, then do not receive a successful adoption placement, and eventually age out of the foster care system on their own.

“They’ve lost their family and gained nothing in return,” he said.

Nationwide, according to federal figures, the number of children affected by parental rights terminations declined from 85,525 to 64,398 between 2005 and 2014, mirroring a broader drop in the number of children placed in foster care. Arizona and Texas were among a handful of states bucking the trend, with more terminations and more children in care.

Figures from Arizona show how difficult it is for a parent to block a termination order once it’s requested by child-welfare officials. In a six-month period last year, 2,232 termination petitions were granted and seven were denied.

As a side note, Professor Guggenheim was one of the lead attorneys on the ICWA/Gold Standard Baby Girl amicus brief.

AFCARS Comments Due May 9

Kate Fort2 Comments

As we previously posted, for the first time, the federal government is proposing to collect data on state ICWA cases. If you, or your employer, or your tribe are willing to let the feds know you think this is a good idea, please submit comments by MAY 9 over here.

Want to submit something but aren’t sure what to write or don’t have time to research all of these acronyms? We have you covered:

Model comment for in-house counsel from MSU

Model comment for tribes from NARF

Model comment for tribes/tribal social services from NICWA.

Supplemental Notice of Proposed Rule Making on AFCARS (ICWA Data)

Kate Fort4 Comments

Due in parts to comments filed on the original proposed rule change for Automated Foster Care and Adoption Reporting System (our primary source of data regarding kids in care), the Administration for Children and Families has added collecting ICWA-related data to the proposed rule:

In this supplemental notice of proposed rulemaking (SNPRM), ACF proposes to require that state title IV-E agencies collect and report additional data elements related to the Indian Child Welfare Act of 1978 (ICWA) in the AFCARS. ACF will consider the public comments on this SNPRM as well as comments already received on the February 9, 2015 NPRM and issue one final AFCARS rule.

Here is the proposed rule page, and we strongly recommend tribes and organizations file comments on the proposed changes–which are due May 9. The comments make a difference:

ACF issued the AFCARS NPRM (80 FR 7132, hereafter referred to as the February 2015 AFCARS NPRM) to amend the AFCARS regulations at 45 CFR 1355.40 and the appendices to part 1355. In it, ACF proposed to modify the requirements for title IV–E agencies to collect and report data to ACF on children in out-of-home care and who were adopted or in a legal guardianship with a title IV–E subsidized adoption or guardianship agreement. At the time the February 2015 AFCARS NPRM was issued, ACF concluded that it did not have enforcement authority regarding ICWA and, therefore, was not able to make the requested changes or additions to the AFCARS data elements regarding ICWA.

However, in the time since publication of the February 2015 AFCARS NPRM, ACF legal counsel reexamined the issue and determined it is within ACF’s existing authority to collect state-level ICWA-related data on American Indian and Alaska Native (AI/ AN) children in child welfare systems pursuant to section 479 of the Social Security Act. Such determination was informed by comments received on the February 2015 AFCARS NPRM as well as an extensive re-evaluation of the scope of ACF’s statutory and regulatory authority.

California DOJ Issues Investigative Subpoena on DHHS in Humboldt County

Kate Fort

The County filed a petition for relief in Humboldt county superior court and attached the investigative subpoena on the Humboldt County Department of Health and Human Services from the California DOJ. The subpoena includes a request for all internal communications relating to tribes and children who are eligible for enrollment or enrolled in any tribes, among a fair number of other ICWA-related inquiries.

Petition for Relief

Opposition of AGO

Dec of Chuang