ICWA notice

California COA ICWA Notice Case

Matthew L.M. Fletcher

Here is the opinion in In re Michael V.

An excerpt:

Kristina C., the mother of five-year-old Alissa M. and two-year-old K.C., appeals the juvenile court‟s September 29, 2105 order terminating her parental rights and identifying adoption as the permanent plan for her two daughters. Kristina contends the court and the Los Angeles County Department of Children and Family Services (Department) failed to comply with the inquiry and notice requirements of the Indian Child Welfare Act of 1978 (ICWA) (25 U.S.C. § 1901 et seq.). We agree the Department failed to adequately investigate Kristina‟s claim of Indian ancestry, remand the matter to allow the Department and the juvenile court to fully comply with ICWA and related California law and otherwise conditionally affirm the order.

California Court of Appeals, 2nd District (17 reported and unreported notice appeals so far in 2016), continues to state what the Department’s role is in ICWA notice and inquiry:

The Department’s brief in this court reflects its misunderstanding of its duty to meet ICWA’s requirements. The Department attempts to defend its investigation by asserting, “Mother’s paternal aunt, who was present at the detention hearing, also never spoke up to indicate mother’s paternal family believed mother might have Indian heritage.” It was not the paternal great-aunt’s obligation to speak up; it was the Department’s obligation to inquire, an affirmative and continuing duty imposed by both ICWA and California law. (See In re Isaiah W., supra, 1 Cal.5th at pp. 10–11.)

Minnesota Court of Appeals Decides ICWA Notice Appeal

Matthew L.M. Fletcher

Here is the unpublished opinion in In re Welfare of Child A.N.T. (Minn. App.):

In re ANT

An excerpt:

The district court properly inquired into whether ICWA applies here. After extensive testimony, the district court’s reopening of the ICWA issue, and dozens of tribal notifications, including one to the United States Bureau of Indian Affairs, no evidence was located to suggest that daughter is eligible for membership in any Indian tribe. Mother, through her mother, provided scant information pertaining only to practices and purported Native American heritage, but nothing concerning tribal membership or eligibility for membership. OCCS, despite extensive and documented efforts, was unable to verify that daughter is an Indian Child as defined by ICWA.
We have held that a district court does not err when it declines to apply ICWA where “there is no evidence that the children are eligible for membership in any Indian tribe.” In re Welfare of Children of M.L.A., 730 N.W.2d 54, 59 (Minn.App.2007). Further, in In re Matter of Baby Boy Doe, 849 P.2d 925, 931 (Idaho 1993), cert. denied 510 U.S. 860, 114 S.Ct. 173 (1993), the Idaho Supreme Court held that “[t]he party asserting the applicability of ICWA has the burden of producing the necessary evidence for the trial court to make” the determination of whether ICWA applies.
Mother failed to meet her burden of production concerning the application of ICWA. Therefore, the district court did not err in concluding that ICWA does not apply here.

Kansas Court of Appeals Holds Evidence of ICWA Notice May Be Filed After Parental Rights Termination Hearing

Matthew L.M. Fletcher4 Comments

Here is the opinion in In re M.H.:

In re MH

An excerpt:

Father is correct that the Act requires that a party seeking to terminate the parental rights of a child that may be Native American must follow specific procedures for notifying the child’s potential tribe about a termination-of-parental-rights hearing. See 25 U.S.C. § 1912(a) (2012). Though the best way for a court to ensure compliance with the Act is for the State to file the notices it has sent and the return receipts it has received with the district court before a termination hearing, the State’s failure to do so here doesn’t require reversal. The State filed the required notice and receipts after the hearing in this case, and those filings prove that the district court complied with the Act.

 

Michigan COA Reverses ICWA Notice: Casual Disregard of ICWA/MIFPA by Wayne County Court and State Workers/Attorney

Matthew L.M. Fletcher2 Comments

Here is the opinion in In re Harrell/Harrell-Marls:

In re Harrell

An excerpt:

At a pretrial hearing, the assistant attorney general, respondent’s attorney, and the trial court discussed whether one of the parties was of American Indian heritage for the purposes of the ICWA:

The Court: All right, the petition is authorized. The children have been placed with relatives. What else? I guess—is that it? Did anyone ever ask is there any . . . American Indian heritage in this family? American Indian heritage?

Ms. Safran (attorney for respondent): Do you have any Indian heritage in your family?

The Court: Cherokee, Chippewa.

Ms. Safran: There might be some grand—on the grandmother’s side, what was it? Some time—some type; attenuated.

Ms. Trott (attorney for petitioner): Ms. Topp was told no at the other—

Ms. Safran: Well, we didn’t have all the parties.

Ms. Topp (case worker): I talked to [respondent], as well, in the police station[,] and I was told no.

Ms. Safran: She doesn’t think—

The Court: You don’t have any kind—are you sure it’s American, or, any idea what we’re talking about? I mean, what kind of Indian? Cherokees, Chippewa? I mean, there’s a whole bunch.

Unidentified speaker: I don’t—I don’t know; I can ask.

The Court: And . . . what relative? Grandma? Great-grandma?

Ms. Safran: Your Honor, can we get a date because . . . they want me in [Judge] Slavens[’ courtroom] and I can’t believe it.

The Court: You’ve got to wait just one second. All right, you can investigate and see. That’s pretty distant; great-grandma is pretty far back. So, I’m not gonna demand that we send  notice.

Ms. Trott: This is on the paternal side? Or maternal? Of which father?

The Court: On the mother’s side or father? It better be a maternal because right now—all right. You have the right to have this heard by a referee as to all the children . . . or by a judge with or without a jury, and, of course, continued right to an attorney at all hearings.  We’re setting this for trial?

Ms. Trott: Yes.

It is clear from the record that the trial court had information, however  slight, “suggesting that [a] child, a parent of [a] child, or members of a parent’s family are tribal members,” which was one of the five situations the Supreme Court listed as  “sufficient to trigger tribal notice.” In re Morris, 491 Mich at 108 n 18. Specifically, respondent’s attorney informed the court that “there might be some [Indian ancestry] on the grandmother’s side.” Because it is for the tribes to determine a child’s eligibility for membership, In re Fried, 266 Mich App 535, 540; 702 NW2d 192 (2005), the trial court clearly erred when it found that the possibility of Indian heritage in a great-grandmother of one or more of the minor children was too remote to justify the notice required by the ICWA and MCL 712B.9(1).

California COA Appeals Decides ICWA Notice Case, Reversing and Remanding for Proper Notice to Karuk Tribe

Matthew L.M. Fletcher

Here is the opinion in In re Guardianship of D.W.

An excerpt:

The record in the present case discloses that from the outset of these proceedings until respondent was appointed the minor‟s guardian, appellant consistently informed the court that the minor had Indian ancestry, and that his father was an enrolled member of the Yurok or Karuk tribes. “Because „biological descendance‟ is often a prerequisite for tribal membership . . . [a relative‟s] suggestion that [the child] „might‟ be an Indian child [is] enough” to satisfy the minimal showing required to trigger the statutory notice provisions. (Antoinette S., supra, 104 Cal.App.4th at p. 1408, fn. omitted.) In carrying out its obligation under the ICWA to provide notice, the court incorrectly assigned appellant, the party objecting to the guardianship, the responsibility of providing notice to the possible Indian tribes.

Nebraska COA Remands ICW Case for Failure to Notify Rosebud Sioux Tribe

Matthew L.M. Fletcher

Here is the opinion in In re Nery V. From the opinion:

The county court for Hall County, sitting as a juvenile court, terminated the parental rights of Mario V., Sr. (Mario Sr.), and Ida V. to their minor children. Mario Sr. appeals in case  No. A-12-629, and Ida appeals in case No. A-12-662. We initially determine that the  relinquishments that Ida executed some 3 years before these proceedings are valid and that her attempted revocation of such is of no force and effect. But, because there is no evidence that the Rosebud Sioux Tribe was given proper notice of these termination of parental rights proceedings as required by the Nebraska Indian Child Welfare Act (NICWA), we find that the termination proceedings conducted were invalid and thus that the order of termination in both cases must be vacated. We therefore remand the causes to the juvenile court for further proceedings consistent with our opinion.