ICWA notice

Texas COA Issues Distubing ICWA Notice Opinion

Matthew L.M. Fletcher

Here is the opinion in In re C.T. & K.:

In re CT&K

From pages 32-33:

Paul and Alice argue that the trial court “ha[d] reason to know that an Indian child” was involved in the case—and the notice and verification requirements of subsection 1912(a) were therefore applicable—because of Myra’s testimony that C.T. is “half-Indian.” The Department, for its part, agrees that the case should be abated and remanded to the trial court for a determination as to whether ICWA applies.

We disagree that the case should be remanded or abated, however, because we do not believe that the trial court “kn[e]w or ha[d] reason to know that an Indian child” was involved in the case. See id. The only evidence adduced regarding C.T.’s heritage was Myra’s statement that Myra is “half Black Foot” and that Alice is “half Cheyenne.” She did not state that either Alice, Paul, C.T., K.T., or herself were “members” of an Indian tribe, and she did not state that either child would be “eligible for membership” in an Indian tribe. See id. § 1903(4) (defining “Indian child” as a person under eighteen who either: (a) is a member of an Indian  [55] tribe; or (b) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe); see also In re Trever I., 973 A.2d 752, 758 (Me. 2009) (noting that “the party asserting the applicability of the ICWA has the burden to provide sufficient information to at least put the court or Department on notice that the child may be an ‘Indian child,’ within the meaning of the ICWA, and that further inquiry is necessary”); In re Arianna R.G., 657 N.W.2d 363, 370 (Wis. 2003) (holding that ICWA notice provisions did not apply because “the information available to the court was too vague for the court to have reason to know” that children were Indian where only evidence was father’s statement that his children have “Indian heritage” and that their “ancestry stems from the Ojibwa Tribe in Marinette, Wisconsin”).

Michigan COA Issues Conditional Reversal in ICWA Notice Case

Matthew L.M. Fletcher

Here is the unpublished opinion:

Matter of Vanostran

An excerpt:

Given the interests protected by ICWA, the potentially high costs of erroneously concluding that notice need not be sent, and the relatively low burden of erring in favor of requiring notice, the Supreme Court found “the standard for triggering the notice requirement of 25 USC 1912(a) must be a cautionary one,” and held that sufficiently reliable information of virtually any criteria on which tribal membership might be based suffices to trigger the notice requirement. Morris, 491 Mich at 88-89. The transcript of the November 29, 2004, hearing was not provided on appeal for review of the evidence indicating Indian heritage, but the trial court deemed the evidence “weakly strong” and felt it warranted provision of ICWA notice. On appeal, the parties agree that the lower court record does not show notice was provided in 2004. Given the fact that the notice requirement was triggered in 2004, it is unnecessary to decide whether respondent mother’s comments during the 2012 termination hearing were  also sufficient to require notice. If her comments were not sufficient, or even if she denied SKV’s Indian heritage, the trigger occurred in 2004, and a parent cannot waive the child’s status. Morris, 491 Mich at 111.

Michigan COA Decides ICWA Notice Case

Matthew L.M. Fletcher1 Comment

Here is the opinion in In re BMH:

In re BMH

An excerpt:

At the April 27, 2012, continued Indian heritage hearing, respondent-father indicated, for the first time, that he believed he was a member of the Tuscarora Band of  Lewiston, New York. As the trial court noted below, the “Tuscarora Nation of New York” is listed among the federally recognized Indian tribes to which the ICWA applies. 75 FR 60810-01. Respondent-father’s sole basis for this belief was a letter that the Indian and Northern Affairs of Canada sent to respondent-father’s mother in 1992, confirming that she and respondent-father were members “of Tuscarora, Six Nations Band.” On appeal, respondent-father argues that this was sufficient indication that he was a member of the federally recognized Tuscarora Nation of New York and that the trial court should not have proceeded to the termination trial without first sending notice to the Tuscarora Nation of New York pursuant to the ICWA’s notice provision. We disagree. At this point in the proceedings, as discussed above, petitioners had presented the January 10, 2012, letter from the Six Nations Tribe confirming respondent-father’s membership with that tribe, and the trial court had heard extensive testimony that respondent-father was a member of the Six Nations Tribe and no other tribe. It was uncontroverted that the Six Nations Tribe was a Canadian tribe that was not recognized under the ICWA. The 1992 letter itself was from the Indian and Northern Affairs of Canada, which further evidenced that respondent-father was a member of a Canadian Indian tribe, rather than the federally recognized Tuscarora Nation of New York. In sum, Brown had already sent notice to the Bureau of Indian Affairs and various Indian tribes in compliance with the ICWA’s notice provision,2 and respondent-father did not present reliable information on which his purported membership with the Tuscarora Nation of New York might be based. Accordingly, the trial court did not fail to comply with the ICWA’s notice provision, 25 USC 1912(a), and did not err by finding that the ICWA did not apply to this case. See In re Morris, 491 Mich at 97.

Michigan COA Issues Conditional Reversal in ICWA Notice Case

Matthew L.M. Fletcher

Here is the opinion in In re Howard.

An excerpt:

Where a respondent’s parental rights have otherwise been properly terminated under Michigan law, but the petitioner and the trial court failed to comply with the ICWA’s notice provision, the proper remedy is to conditionally reverse and remand for resolution of the ICWA notice issue. In re Morris, 491 Mich at 121. If the trial court conclusively determines that ICWA does not apply to the involuntary child custody proceeding—because the children are not  Indian children or because the properly noticed tribe does not respond within the allotted time—the trial court’s order terminating parental rights is reinstated. If, however, the trial court concludes that ICWA does apply to the child custody proceeding, the trial court’s order terminating parental rights must be vacated and all proceedings must begin anew in accord with the procedural and substantive requirements of ICWA. In re Morris, 491 Mich at 120-121.

Cal. COA Decides ICWA Notice Case — Information about Great-Great-Ancestors Not Required

Matthew L.M. Fletcher

Here:

In re JM

An excerpt:

V.M. (mother) challenges the juvenile court’s order terminating her parental rights to now four-year-old J.M. and three-year-old B.M. Father is not a party to this appeal. Mother contends that the order must be reversed because the Department of Children and Family Services failed to comply with the notice requirements of the Indian Child Welfare Act (ICWA) in that: (1) the notices sent did not include the names of maternal great-great-grandparents, alleged by the maternal grandmother to have Papago Indian heritage; and (2) J.M. was not included in the notices. We disagree, finding the law does not require the inclusion of information about great-great-ancestors in ICWA notices, and any error in failing to include J.M. was harmless. We therefore affirm.

Michigan SCT Decides In re Morris and In re Gordon; Adopts “Conditional Reversal” Rule for ICWA Notice Violations

Matthew L.M. Fletcher2 Comments

Here

An excerpt from Justice Cavanagh’s unanimous opinion:

While it is impossible to articulate a precise rule that will encompass every possible factual situation, in light of the interests protected by ICWA, the potentially high costs of erroneously concluding that notice need not be sent, and the relatively low burden of erring in favor of requiring notice, we think the standard for triggering the notice requirement of 25 USC 1912(a) must be a cautionary one. Therefore, we hold first that sufficiently reliable information of virtually any criteria on which tribal membership might be based suffices to trigger the notice requirement. We hold also that a parent of an Indian child cannot waive the separate and independent ICWA rights of an Indian child’s tribe and that the trial court must maintain a documentary record including, at minimum, (1) the original or a copy of each actual notice personally served or sent via registered mail pursuant to 25 USC 1912(a) and (2) the original or a legible copy of the return receipt or other proof of service showing delivery of the notice.1 Finally, we hold that the proper remedy for an ICWA-notice violation is to conditionally reverse the trial court and remand for resolution of the ICWA-notice issue.

Briefs are here and here.

Michigan COA ICWA Notice Case

Kate Fort

In re Yost

Given this evidence regarding the efforts made to notify possible tribes which the children might have been affiliated with, as well as the lack of any mention by respondent throughout the proceedings regarding the application of the ICWA, we cannot conclude that petitioner and the circuit court violated the notice requirements of 25 USC 1912(a).1

Michigan COA Decides Another ICWA Notice Case

Matthew L.M. Fletcher

Here is the opinion:

Brent COA Opinion

An excerpt:

The record reveals that petitioner investigated N. Brent’s claim that his uncle was an “Alleganian Indian” by notifying the Bureau of Indian Affairs. Petitioner received a response from the United States Department of the Interior Bureau of Indian Affairs stating that “there is not a federally recognized Alleganian tribe.” On appeal, respondents argue that petitioner should have understood that the Allegany Indian Reservation is not a tribe, but a reservation occupied by Seneca and Cayuga Indians, however there is no indication that respondents conveyed this information to petitioner. Regardless, this issue is now moot. An issue becomes moot when a subsequent event renders it impossible for the appellate court to fashion a remedy. Kieta v Thomas M Cooley Law Sch, 290 Mich App 144, 147; 799 NW2d 579 (2010). The remedy for a violation of the ICWA would be to remand to the trial court “for the purpose of providing proper notice to any interested Indian tribe pursuant to the ICWA.” See In re IEM, 233 Mich App 438, 456; 592 NW2d 751 (1999). The trial court has already terminated its jurisdiction over the children. Because the trial court no longer has jurisdiction, there is no longer any party seeking either foster care placement or termination of parental rights. 25 USCA 1912(a). The remedy of transferring proceedings to a tribe unless the tribe declines jurisdiction, 25 USCA 1911(b), is no longer necessary because the proceedings have been concluded.

Florida Appellate Court Reverses Parental Termination Due to ICWA Notice Violation

Matthew L.M. Fletcher

Here is the opinion in G.L. v. Department of Children and Families (Fla. App. 5th Dist.).

An excerpt:

The father, G.L., appeals the termination of his parental rights to his child, T.M.L. He contends that the notice requirements of the Indian Child Welfare Act of 1978 (“ICWA”), 25 U.S.C.A. §§ 1901-1963 (2010), were not met. We agree, reverse the judgment, and remand with directions.

***

For these reasons, we reverse the termination order and remand this case to the trial court so that proper notice may be provided. On remand, the trial court shall conduct a hearing to determine whether T.M.L. is an Indian child under the ICWA. If, after notice and hearing, the trial court determines that T.M.L. is an Indian child, the trial court shall conduct a new trial applying the requirements and standards of the ICWA. If, after notice and a hearing, the trial court determines that T.M.L. is not an Indian child, the trial court may re-enter the termination order terminating the rights of the parents. See S.B. v. Dep’t of Health & Rehab. Servs., 679 So. 2d 57, 57 (Fla. 4th DCA 1996) (reversing order terminating parental rights but stating that on remand, upon resolving notice issue, court may re-issue termination order).

 

Michigan COA Issues Another Condition Remand in an ICWA Notice Case

Matthew L.M. Fletcher

Here, In re King/Little.