OCS correctly points out that “inadequate efforts in one period of state involvement do not render the entirety of [its] efforts inadequate, even when that period lasts for a matter of months.”28 And the superior court correctly found that OCS had made active efforts to reunify Clark and his children during the first two years of the case. But OCS’s failure to make adequate efforts in this case encompassed the subsequent two years, fully half of the time that the case was open. And its failure during that two year time period was extreme: OCS did not even attempt to contact Clark for a year and a half, and may have gone even longer without doing so if Clark had not initiated contact himself. OCS’s failure to make active efforts in the second two years of the case was so egregious that the efforts during the earlier period cannot make up for it. Because OCS’s efforts to reunite Clark with his family following his consent to guardianship were minimal at best, we reverse the superior court’s finding that OCS met the active efforts requirement.
Clark J. v. Dep’t of Health & Soc. Servs., Off. of Children’s Servs., No. S-17797, 2021 WL 1232066, at *7 (Alaska Apr. 2, 2021)
Well all, I have absolutely fallen down on the ICWA TurtleTalk beat since the Washington Supreme Court decision in Z.J.G. Since I am getting older, I’m going to blame the new WordPress interface (please ignore that Fletcher is older than me and obviously figured it out just fine). So now, a series of posts with links to the reported cases since September 2020–don’t worry, this was an exceptionally small year for reported ICWA cases.
N.S. is a guardianship case (reading this, it’s possible I just wanted to end the year after Z.J.G. on a positive note). Here is the description of the lower court’s holding, which the appellate court affirmed. There is some preemption discussion on p 27-28 in the 54 page opinion, but not much.
Regarding substantial interference with N.S.’s connection to the Tribe, the court found that “once [Grandmother] is properly informed, once the expectations are concretely articulated, . . . she will encourage [N.S.] to learn about his heritage.” The court further found that given N.S.’s development, maturity, and curiosity, he would not “permit anybody [to] dissuad[e] him from making up his own mind as to not just his Indian heritage, but how it fits into his life.” Thus, the court concluded that there was not a compelling reason not to terminate parental rights based on a substantial interference with N.S.’s connection to the Tribe. 25
Regarding the Tribe’s identification of guardianship as the best permanent plan for N.S., the court believed that N.S.’s “guardianship was a very vital tool and opportunity for him to get to this point.” However, the court asserted that, “merely identifying guardianship to maintain the status quo would not recognize the increasing, the deep, the published connection [that N.S.] has with his grandmother.” The court found that in light of N.S.’s “current developmental progression and attachment to the grandmother,” guardianship was not in his best interests; therefore, the Tribe’s identification of guardianship as N.S.’s permanent plan had not “been established as a compelling reason not to terminate parental rights.”
You have to love a court that starts the opinion so clearly:
The federal Indian Child Welfare Act (ICWA) and the Nebraska Indian Child Welfare Act (NICWA) provide specific procedures and requirements that apply in certain proceedings involving the custody and adoption of and termination of parental rights to Native American children. This case requires us to decide whether those procedures and requirements apply in a case in which a maternal grandmother sought to establish a guardianship for an Indian child over the objection of her daughter, the child’s mother. After interpreting the relevant statutory language, we conclude that the guardianship proceeding at issue was governed by ICWA and NICWA. In addition, we find that the grandmother did not make the showing required by ICWA and NICWA. We therefore reverse the order of the county court establishing the guardianship and remand the cause with directions to vacate the guardianship, dismiss the petition, and return custody to the child’s mother.
Although ICWA does not explicitly recognize “permanent guardianships,” a comparison of Arizona’s statute for permanent guardianship and ICWA’s definition for a “foster care placement” shows that ICWA applies in permanent guardianships.
Section 1912(e)’s plain language states that no foster care placement, which includes permanent guardianships, may be ordered without expert-witness testimony on whether a parent’s or an Indian-relative custodian’s continued custody of a child will likely result in serious emotional or physical damage to the child. Therefore, a court must hear expert-witness testimony before ordering a permanent guardianship. The record shows that R.Y. was subject to ICWA and a guardianship proceeding took place. Thus, ICWA required the juvenile court to hear expert-witness testimony on whether Mother’s or the Indian-relative custodian’s continued custody of R.Y. would likely result in serious emotional or physical damage to R.Y.
This is a very important point–I get so many questions about the issue of guardianships used to avoid ICWA requirements and about the follow-up about whether a state-initiated proceeding can turn into a fully voluntary one:
Natasha S. also argues that Mother had converted the involuntary dependency into a voluntary matter when Mother petitioned to appoint Natasha S. as guardian, thereby eliminating the need for expert-witness testimony. But all of the proceedings, including the guardianship, arose out of a state dependency action that the Department had initiated. Thus, despite Mother’s motion, this was still an involuntary dependency action and required expert-witness testimony. Moreover, expert-witness testimony is required in voluntary child custody proceedings governed by ICWA. 25 U.S.C. §§ 1903(1)(i), 1912(e); 25 C.F.R. § 23.103(a)(1)
In re Mercedes L. et al
This is a very long decision, but the court’s discussion of appealability of the order is an interesting one.
Ultimately the question turned on whether a long term guardianship is a foster care placement or a termination of parental rights (which have differing standards of proof). The court found it was a foster care placement, and required the testimony of a qualified expert witness.
This is a tough case of intergenerational removal. The Nebraska Supreme Court finds that both ICWA and NICWA apply to non-Indian parents of Indian children as defined by the statutes. The Court also found that NICWA’s different language in its active efforts provision, which requires active efforts not just to prevent the break up of the family, but to unite the parent with the Indian child, means the Baby Girl holding does not apply to that provision of state law. However, where NICWA’s language is the same as ICWA’s regarding “continued custody” in the termination of parental rights section, the Baby Girl holding does apply, and there is no need to find the continued custody of the child will result in serious physical or emotional damage, where the parent hasn’t had custody of the child.
While the new federal Regulations, which go into effect next week, are useful for tribes and Native families, state ICWA laws continue to hold the most promise for enforcement of the law in the courts. If your state is contemplating drafting one (either through a tribal-state workgroup, Court Improvement Program, or other mechanism), there are resources and people available to provide research and assistance.
Here. And the OK Supreme Court agreed to publish the decision.
This case involved a guardianship:
ICWA defines “foster care placement” as “‘any action removing an Indian child from its parent or Indian custodian for temporary placement in a foster home or institution or the home of a guardian or conservator where the parent or Indian custodian cannot have the child returned upon demand, but where parental rights have not been terminated.'”25 U.S.C. 1903(1)(i). This guardianship case is governed by this definition of foster care placement because Mother cannot have her children returned on demand as shown by the fact that she requested that the guardianship be terminated and her request was denied.
The case also discusses the requirement of clear and convincing evidence to deny transfer. The trial court denied transfer stating it was the advanced stage of the proceedings–which it was because Cherokee Nation didn’t receive notice, and the delay was beyond the Nation’s control.
This is only the 16th time an appellate court reversed the lower court and ordered transfer. This is one of two from this year.
Wyoming Supreme Court decision.
Multiple ICWA issues, including applying ICWA to permanent guardianships, the shift from a temporary guardianship to a full or “plenary” guardianship, the requirements of a qualified expert witness, the ability of guardians to provide active efforts, and even a little existing Indian family doctrine in the qualifying of the expert witness.