ICWA Decision out of Missouri on Tribal Intervenor (Relator) Standing and Writ of Prohibition

From the facts in this opinion, it’s clear this is a pretty contested post termination of parental rights/foster care adoption case from the southern district of Missouri (Poplar Bluff, Springfield). What is not in the opinion but is available on the Westlaw decision page are the attorneys involved in the case. I’m sure it’s some local southern Missouri attorneys:

Attorneys for Relator – Heidi Doerhoff Vollet of Jefferson City, MO; James R. Layton of St. Louis, MO
Attorney for Respondent Judge – Scott S. Sifferman Acting Pro Se
Attorneys for Minor – William Petrus of Mt. Vernon, MO (GAL); Matthew D. McGillDavid W. Casazza, Robert Batista, Todd Shaw of Washington, D.C.
Attorneys for Respondents Foster Parents – Toni M. Fields of Cassville, MO; Paul Clement, Erin Murphy of Washington, D.C.; Kevin Neylan of New York, NY


Even so! In this case, the Court of Appeals found the Choctaw Nation had standing to to bring the writ of prohibition against the judge and the Court of Appeals entered the writ (Respondent is the trial judge)(also, this is why formal legal intervention is so important for tribes whenever possible)(also why it’s good to find local family law attorneys who can talk about things like “writs of prohibition” with expertise):

In his brief, Respondent argues that the Choctaw Nation does not have standing to seek this writ of prohibition. On two occasions, Respondent granted the Choctaw Nation the right to intervene in this protective custody proceeding under 25 U.S.C. § 1911(c), and also granted the Choctaw Nation the right to intervene in Foster Parents’ adoption proceeding. We see no error in these rulings. The Choctaw Nation has standing to seek
this writ of prohibition.


Respondent did not have the express or implied authority to interfere in the Children’s Division’s administrative review of a nonfinal administrative recommendation for adoption, and then substitute Respondent’s judgment for that of the Children’s Division and compel the Children’s Division to reach or adhere to a particular recommendation.

Marshall Project and NPR on How Alaska OCS Stole Millions from Alaska Native Foster Kids

If you, like me, enjoy starting your day with the clarifying anger of a thousand white hot fires, may I recommend this article on how various state agencies rerouted foster children’s SSI benefits to pay for their own foster care–especially impacting Alaska Native children. A few of those children are highlighted in this article:


The Marshall Project and NPR have found that in at least 36 states and Washington, D.C., state foster care agencies comb through their case files to find kids entitled to these benefits, then apply to Social Security to become each child’s financial representative, a process permitted by federal regulations. Once approved, the agencies take the money, almost always without notifying the children, their loved ones or lawyers.

At least 10 state foster care agencies hire for-profit companies to obtain millions of dollars in Social Security benefits intended for the most vulnerable children in their care each year, according to a review of hundreds of pages of contract documents. A private firm that Alaska used while Hunter was in state care referred to acquiring benefits from people with disabilities as “a major line of business” in company records.

Some states also take veterans’ benefits from children with a parent who died in the military, though this has become less common as casualties have declined since the Iraq War.

Heartbreaking Study out of Manitoba: Moms in Foster Care More Likely to Lose Their Infants

Study here

Adolescent mothers in the care of CPS are much more likely to have their child taken into CPS care. By separating a quarter of young mothers from their infant within the first week of life, and almost half before the child turns 2, the cycle continues. For adolescents in CPS care who give birth, more and better services are required to support these mothers and to keep mothers and children together wherever possible.

Coverage here

A quick review of the study doesn’t reveal a direct link to Indigenous girls, but

She pointed to the province of Manitoba, where 10,000 of the 11,000 children in care are indigenous.


The number of children in care in Manitoba is among the highest per-capita compared with other provinces. It has nearly doubled in the last decade to 11,000. Nearly 90 per cent are Indigenous.

In neighbouring Saskatchewan, with roughly the same population, the number is roughly 4,000, Fielding said.

Problems with Passive Voice Part Infinity–Children Missing in KS Foster Care

Here is the original article.

Here is the response/statement from Kansas DCF:

The reality is quite different from what “outraged” legislators would have you believe. Allow me to share with you who the children are, we consider missing. In 92 percent of the cases, they are young people, ages 12 and older. They have been removed from the only home they know, placed in an unfamiliar setting, and they miss their families, their schools and their communities. And they are eager to find a way to get back to them.

Maybe I shouldn’t write this on an empty stomach, but WHO removed these children? WHO put them in an unfamiliar setting? Away from their schools and communities? WHO accepted responsibility for them? And then WHO contracted out their care and protection to private agencies?  Oh, that’s right.

You don’t get to blame the kids you lose when it’s your job to keep tabs on them.

Chronicle of Social Change Article on Native Foster Home(s) in L.A.


In 1978, Congress passed the Indian Child Welfare Act (ICWA), which was meant to keep Native American families together, after foster care and adoption practices had seen thousands of Native children taken from their families, ancestral lands and culture to be placed in non-native homes. That law created a system of “preferred placements” for Native children who enter care. The first choice is to place children with family members, followed by members of the same tribe and finally Native foster parents from other tribes. The last resort is placement in non-native homes.

But the federal government has never compelled states to share how well they satisfy that “preference,” leaving little or no data to indicate who is doing a good job placing Native children in Native homes.

The reporting that does exist is spotty at best.

In 2005, the United States Government Accountability Office (GAO) surveyed all 50 states and Washington D.C. about their ability to identify Native children in the system who were subject to ICWA in 2003.

“Only five states—Oklahoma, Oregon, Rhode Island, South Dakota, and Washington—were able to provide these data,” according the GAO report.

It doesn’t appear that reporting on ICWA compliance improved much in the subsequent years.

In 2015, Casey Family Programs, one of the largest charitable foundations in all of child welfare, tried to ascertain ICWA compliance in a brief entitled “Measuring Compliance with the Indian Child Welfare Act.”

“Although cross-jurisdictional and collaborative efforts are emerging, compliance measurement remains characterized by relatively small, idiosyncratic efforts,” the thin report reads. “Empirical study results are scattered, inconsistent, and highly specific to the state and jurisdiction being examined.”

Commentary on the Native American Children’s Safety Act

Last week, the Department of the Interior published final regulations implementing the Indian Child Welfare Act, along with a legal opinion from the Solicitor of the Department of the Interior regarding the authority to issue such regulations. The Department’s regulations, and the accompanying legal opinion, garnered a lot of attention across Indian country and Indian child welfare advocates, and may prove to be the capstone on the Administration’s work for Native children.

However, last week the President also signed of the “Native American Children’s Safety Act” (S.184 or “NACSA”). NACSA amended 25 U.S.C. § 3207 – requiring character investigations for certain individuals who have regular contact with Indian children.

As its title suggests, NACSA is intended to protect Indian children in tribal foster care by doing several things:

  1. Prohibiting child placement in foster care, or licensing foster homes, unless the tribe has completed a criminal background check on each individual residing in the foster home and certified that each of those individuals meets the requirements of the statute;
  2. Requiring tribes to adopt placement standards in accordance with the statute;
  3. Requiring tribes to recertify existing foster homes to ensure that they meet the new standards required under the statute; and,
  4. Requiring the Department of the Interior to issue guidance on appropriate placement standards (and subjecting tribal standards to the Department’s guidance).

Given its subject matter and intent, NACSA moved through Congress with little opposition and broad support. But, the details of the statute’s mandates seem to have caught a number of tribal courts and social services agencies off-guard. Some tribal judges (including one of the authors of this post), tribal social services agencies, and Indian child welfare advocates are concerned about unintended consequences that could flow from the mandates in this new law. Those mandates include the following:

  1. Tribal courts and agencies are required to conduct fingerprint-based checks of national crime databases, as well as checks of state abuse and neglect databases in every state where any adult in the foster home resided for the past five years.
  1. If those checks reveal that any adult in the home has been convicted of a felony in any federal, state, or tribal court for crimes listed in 42 U.S.C. § 671(a)(20)(A)(i) or (ii), tribal courts and agencies are prohibited from placing children in the foster home. Those crimes are a host of felonies, but also include “drug-related offenses.” Because the statute makes a cross-reference rather than specifically enumerating the crimes, it’s not clear whether the five-year limit in the referenced statute carries over as a limit on this provision.
  1. The Department of the Interior is required to issue “guidance” sometime in the next two years that is binding on Indian tribes regarding placement standards. That guidance must address “self reporting requirements” for the head of the household if he/she knows that another adult in the house is listed on any tribal or state abuse registry, or has been convicted of any of the crimes listed above.

While well intended, these provisions will leave tribal foster care agencies and tribal courts without any discretion to certify foster homes and make placements within their communities. It is likely to further limit the availability of eligible foster homes in tribal communities.

As people across Indian country know, many households on the reservation include temporary residents – including extended family members, adult children, family friends, or other community members in need. A member of the household may have gone through the tribe’s healing to wellness court. NACSA does not leave tribal agencies much flexibility to account for these homes or living arrangements. Where tribal courts and agencies previously had discretion to make those judgment calls, NACSA removes that discretion. Any adult living in the home with a prior drug-related offense may automatically disqualify that home from being approved as a foster care placement.

In addition, NACSA requires the Department of the Interior to issue binding guidance on implementation of the statute, including procedures for “self-reporting” by the head of the household if he/she has knowledge that any other adult in the home was convicted of a crime listed above. Tribes will be required to enforce this mandate, but it is unclear how.

NACSA’s mandate that tribes conduct background checks on state databases presumes that state agencies will cooperate with tribal agencies in their efforts to conduct such searches. The statute does not provide Indian tribes with any legal tools, other than the authority to enter into “voluntary agreements with State entities,” to require such cooperation. It is not difficult to imagine a scenario in which state agencies are uncooperative in conducting those searches, thus slowing down foster care placement in Indian country. It is one thing for a tribe to have solid relationships with a local county or even the state—it is quite another to have to reach out to every state where an individual lived in the past five years (let’s say, Ohio, for example) for cooperation.

Perhaps most importantly, NACSA does not provide tribal courts and social services agencies with any additional resources to carry out these new mandates. The courts and agencies with the least amount of resources will now have to spend more money to remain in compliance with federal law. Failure to remain in compliance with these new mandates will likely jeopardize the already meager federal funds that flow into tribal courts and child welfare agencies.

None of this is to say tribal judges or social services agencies don’t have an interest in making sure that foster children are placed in safe homes, or that the proponents of NACSA had bad intentions. As a tribal court judge and ICWA advocate, we applaud the fact that Congress and policy makers care about the importance of safe foster homes in Indian country.

But NACSA may turn out to be a law with drastic unintended consequences (we hope not). This statute could benefit from some amendments to allow tribal courts and agencies to have more discretion to solve problems at the local level, as well as authorization of funding to help tribes meet these new requirements. Absent those amendments, the Department of the Interior must work closely with tribal judges and social services workers to ensure that the law is implemented in a way that prevents unintended consequences.



Report by Center for the Study of Social Policy–Child Welfare Policy Strategies to Improve Outcomes for Children of Color


Nationally, families of color – particularly African
American and American Indian and Alaska Native (AI/AN) – are over-represented in child welfare systems. These families also tend to have worse outcomes – such as children more likely to be removed from their homes, less likely to receive family preservation services, and in the case of African American children, experiencing longer stays in foster care. Public policy can play an important role in reducing these disparities and
improving outcomes for children and families of color. This report highlights policy strategies that have shown promise in improving outcomes for children and families of color in child welfare

NCJFCJ Releases Updated Disproportionality Rates for Children of Color in Foster Care Technical Assistance Bulletin

Since 2011, the NCJFCJ has published Disproportionality Rates for Children of Color in Foster Care Technical Assistance Bulletins, which identify national and state level disproportionality rates. The reports have gained national attention and have been used in a number of ways by a broad spectrum of stakeholders and interested parties.

Due to the ongoing need for dialogue surrounding the most currently available statistics on disproportionality, the NCJFCJ has published an updated Disproportionality Rates for Children of Color in Foster Care (Fiscal Year 2013) Technical Assistance Bulletin. This Bulletin, released June 2015, utilizes the most current (2013) Adoption and Foster Care Analysis and Reporting System (AFCARS) data and 2013 census population estimates data to calculate current disproportionality indexes for the nation, every state, and Washington, D.C.. The Bulletin makes comparisons between 2000 and 2013 disproportionality rates to illustrate changes that have occurred in the last decade regarding overrepresentation of children of color in the foster care system. African American and Native American disproportionality rates are illustrated in color coded maps demonstrate trends over time.

New this year, the Bulletin identifies some of the limitations of the data to help users be more informed consumers of the information and better understand what the data mean and do not mean.

2013 Dispro TAB Final

NCJFCJ Disproportionality Report of Children in Foster Care for FY 2012

Page 9 of the report has Native American Disproportionality Rates by State. 21 states have overrepresentation of Native kids in care, including Michigan (1.3, and 1.9 in entries to care), Wisconsin (4.1), Minnesota (13.9)and Iowa (4.5). Michigan, Wisconsin, and Minnesota have worse numbers than 10 years ago (page 3).

Report Disproportionality Rates for Children of Color in Foster Care for Fiscal Year 2012 (pdf). Website here.

As a side note, anytime anyone would like to talk about what they think is happening in Illinois/Chicago (no disproportionality shown, almost no ICWA cases pop up on appeal, but with a large urban Native population), we are all ears.