foster parent intervention

ProPublica Follow Up Article on Bonding “Expert”

Kate Fort

In a follow up to the foster parent intervention article that was published in ProPublica and The New Yorker in October, this week ProPublica published an article on the woman who regularly wrote expert reports supporting foster care placement over parents and relatives.

Here.

Who hired and was paying her in the case that she was being deposed about? The foster parents, she answered. They wanted to adopt, she said, and had heard about her from other foster parents.

Had she considered or was she even aware of the cultural background of the birth family and child whom she was recommending permanently separating? (The case involved a baby girl of multiracial heritage.) Baird answered that babies have “never possessed” a cultural identity, and therefore are “not losing anything,” at their age, by being adopted. Although when such children grow up, she acknowledged, they might say to their now-adoptive parents, “Oh, I didn’t know we were related to the, you know, Pima tribe in northern California, or whatever the circumstances are.”

The Pima tribe is located in the Phoenix metropolitan area.

West Virginia Supreme Court Repudiates Existing Indian Family; Orders Transfer to Tribal Court

Kate Fort

Ex re Delaware Tribe v. Hon. Nowicki-Eldridge

This is, as you might imagine, a description of a mess where the West Virginia agency never contacted the Tribe, and then didn’t respond to attempts by the Tribe to get in contact with the agency.  Then foster parents were granted intervenor status as well. The decision doesn’t state who made the EIF argument, but the Indian Law Clinic has been hearing the argument more and more from foster parents seeking to deny transfer to tribal court. While the Clinic was not involved in this case, it is reminiscent current appeals the Clinic is working on. My sense from the opinion is that the tribal briefing was likely excellent. The West Virginia Supreme Court didn’t buy it:

This unequivocal statement plainly dispels any notion that the EIF exception is compatible with the ICWA. Accordingly, we join the “swelling chorus of [jurisdictions] affirmatively reject[ing] the EIF exception[,]” ICWA Proc., 81 Fed. Reg. 38778, 38802 (June 14, 2016), and hold that West Virginia does not recognize the Existing Indian Family exception to the Indian Child Welfare Act, 25 U.S.C. §§ 1901 to -1963 (2021). Accordingly, the circuit court erred in adopting the EIF exception and subsequently relying on that exception to determine that the ICWA was inapplicable to this case.

Another fun thing that has been happening a lot is parties arguing the 1979 Guidelines rather than the 7 year old 2016 Regulations and Guidelines:

Before this Court several of the parties cited this guidance as a basis for arguing that the Tribe is not entitled to transfer because it knew of these proceedings in December 2021 but did not move to transfer until eight months later in August 2022. What the circuit court and the parties fail to recognize is that the 1979 Guidelines were explicitly abrogated and replaced by the BIA when it promulgated the 2016 Guidelines. See Guidelines for Implementing the Indian Child Welfare Act, 81 Fed. Reg. 96476 (Dec. 30, 2016) (“The [2016] guidelines replace the 1979 and 2015 versions[.]”). Therefore, we do not find the 1979 Guidelines persuasive, nor do we rely upon any guidance contained therein.

***

The proceeding regarding termination of the parental rights of Respondent Father was not at all advanced at the time the Tribe filed its motion to transfer the proceeding. Respondent Father had not been adjudicated; indeed, neither a preliminary nor adjudicatory hearing had even been scheduled. While five months passed between March 2022 and the Tribe’s motion to transfer in August 2022, the record reveals that those months were devoted to ascertaining whether the ICWA applied to this case, and not to any consideration of the merits of the amended petition. In short, there was nothing “advanced” about this proceeding when the Tribe moved to transfer.

Finally, this Court did not just send the case back for reconsideration, but rather ordered the lower court to transfer jurisdiction to the Delaware Tribe.

Here is the press coverage on the case: https://www.courthousenews.com/delaware-tribe-of-indians-applauds-west-virginia-supreme-court-decision-affirming-its-jurisdiction-in-child-welfare-case/

No Brackeen Today/Observations on Foster Parent Intervention

Kate Fort

Next opinion day is June 8.

While we wait for Brackeen, I wanted to highlight this story from Colorado, where the Office of Respondent Parents’ Counsel has been doing great work on ICWA cases. In this case, they have collected incredibly useful data on what happens to a child protection case when foster parents intervene. This article is not ICWA specific, but the last two cases the MSU Indian Law Clinic has had on appeal are a direct result of the attempt at foster parents to intervene. In both cases, the court and agency agreed with the tribes and followed ICWA. In both cases, the foster parents sought to intervene and appealed the case. As we look past Brackeen, addressing this issue of foster parent intervention generally is vital.

Article

According to data provided by the ORPC foster parent intervention has increased in Colorado in the past decade. In 2020, 10% of Dependency and Neglect cases had Intervenors. When foster parents intervene, the chance of reunification decreases from 62% to 22% for the birth parents.

emphasis added

According to the ORPC, the average Dependency and Neglect Case costs $3,500 to litigate, but when foster parents intervene the average court cost goes up to $7,500.