ICWA notice

Cal. Appeals Court Reverses State Court ICW Decision for Lack of Notice

Matthew L.M. Fletcher3 Comments

Here is the unpublished opinion in Pit River Tribe v. Superior Court. An excerpt:

Petitioner Pit River Tribe (the Tribe) seeks an extraordinary writ to vacate the order of the juvenile court at a postpermanency planning hearing (Welf. & Inst Code, § 366.28), at which it found good cause to deviate from the placement preferences set forth in the Indian Child Welfare Act (ICWA).  (25 U.S.C. § 1901 et seq.)  The Tribe contends the good cause finding was in error because there was a failure to comply with the ICWA’s notice and placement requirements.  Because the social services agency failed to use the services of the Tribe to secure a placement conforming to the ICWA placement preferences, failed to expeditiously evaluate the relatives recommended by the Tribe for placement, failed to assist in obtaining a criminal record exemption or adequately explain why it did not do so for one of the ICWA-compliant placement options, and failed to apply the Tribe’s social and cultural standards when assessing the relative’s home, we are compelled to agree.

Michigan Appeals Court Issues Two More ICWA “Conditional Affirmance” Notice Decisions

Matthew L.M. Fletcher

Here is the unpublished opinion in In re Orianwo/McCrary.

And here is the unpublished opinion in In re Amyx/Amyx-Holmes.

Colorado Appellate Court Reverses Termination of Parental Rights for Failure to Give Proper Notice under ICWA

Matthew L.M. Fletcher

Here is the opinion in In re L.A.N.

An excerpt:

In this dependency and neglect proceeding, L.M.B. (mother) appeals from the judgment terminating her parent-child legal relationship with L.A.N., also known as L.A.C. (the child). Mother contends, and we agree, that the judgment must be vacated because the notice requirements of the Indian Child Welfare Act of 1978, 25 U.S.C. §§ 1901-1963 (the ICWA), were not met. Therefore, we vacate the judgment and remand for further inquiry and proper notice as provided in this opinion. However, because the child may not be eligible for tribal membership, or even if she is, the case may not be transferred to a tribal court, we also address mother’s contention that the court erred by denying her request for production of the file of the child’s therapist. We further conclude that the court erred in denying mother’s request, and that a remand is needed to address this issue.

Michigan Appellate Courts Issue another ICWA “Conditional Affirmance” Case

Matthew L.M. Fletcher

Here is the unpublished opinion in In re Orianwo/McCrary.

Michigan Supreme Court Grants Leave to Appeal “Conditional Affirmance” Remedy for ICWA Notice Violations

Matthew L.M. Fletcher

Here is that order in In re Morris:

Order granting Leave

The appellate court’s decision on remand is here.

Here is the text of the order granting leave:

By order of April 22, 2011, while retaining jurisdiction, we remanded this case to the Court of Appeals for reconsideration of the respondent father’s appeal in light of the confession of error by petitioner Department of Human Services regarding the notice violation under the Indian Child Welfare Act (ICWA), 25 USC 1901 et seq. On order of the Court, the Court of Appeals having filed its opinion on remand on May 19, 2011, the application for leave to appeal is again considered, and it is GRANTED, limited to the issue whether the Court of Appeals “conditional affirmance” remedy is an appropriate method of resolving an ICWA violation.

We further ORDER the Wayne Circuit Court Family Division to appoint attorney Vivek Sankaran of the University of Michigan Law School Child Advocacy Clinic, if feasible, to represent the respondent father in this Court.

The Children’s Law, Family Law, and American Indian Law Sections of the State Bar of Michigan are invited to file briefs amicus curiae. Other persons or groups interested in the determination of the issue presented in this case may move the Court for permission to file briefs amicus curiae.

Colorado Appeals Court Remands ICWA Case for Failure to Document Compliance with Notice Requirements

Matthew L.M. Fletcher

Here is the opinion in In re E.C.

An excerpt:

For these reasons, the case is remanded for further proceedings on the ICWA issue. If the ICWA has been complied with, then the order shall stand affirmed, subject to any appeal by father of the ICWA determination. If the ICWA has not been complied with, then the court shall conduct any further proceedings necessary to determine whether the child is an Indian child. If she is determined not to be an Indian child, or if she is determined to be an Indian child and the tribe chooses not to intervene, then the order shall stand affirmed. If she is found to be an Indian child and the tribe seeks to intervene, then the order shall be deemed vacated. See People in Interest of N.D.C., 210 P.3d 494, 500 (Colo. App. 2009).

California Appellate Court Decides ICWA Notice Case

Matthew L.M. Fletcher

Here is the opinion in In re I.W. An excerpt:

As we have mentioned, this case began in 2006 and the section 366 .26 hearing occurred in August 2008. Between those times, mother had provided information about her Indian ancestry to the Department and the Department had sent notices and received negative responses from the Cherokee and Blackfeet tribes. At a hearing about ICWA compliance in December 2008, however, mother revealed for the first time that she had a maternal aunt who was a member of the Choctaw tribe and living in Oklahoma. The Department then sent ICWA-030 notices to the Choctaw tribes in Oklahoma, Louisiana, and Mississippi and resent notices to the Cherokee and Blackfeet tribes. At a hearing in February 2009, the Department reported to the juvenile court as follows: “Attached to an addendum for today’s hearing are letters from the Blackfeet tribe in Browning, Montana, indicating that the Act does not apply to any of the children; a letter from the Jena band of Choctaw Indians in Jena, Louisiana, indicating that the Act does not apply to any of the children; and three letters from the Eastern Band of Cherokee Indians, the Cherokee Boys Club in Cherokee, North Carolina. There is one for each child indicating that the Act does not apply as far as that child is concerned. [¶] Otherwise, attached to the prior addendums and reports are the return receipts for all the tribes that were noticed as well as the letters, tribal responses from other tribes that were previously submitted.”

Montana Supreme Court Decides ICWA Notice Case

Matthew L.M. Fletcher

The court held in In re J.J.L. that the trial court properly concluded that, in the adjudication of a child of a Turtle Mountain Band of Chippewa Indians who was not eligible for membership, ICWA does not apply.

Here are the materials:

In re J.J.L. Opinion

Appellant Brief — JJL

Appellee Brief — JJL

Texas Court Decides ICWA Notice Case

Matthew L.M. Fletcher

Here is the opinion in In re J.J.C., where the court conditionally affirmed a trial court decision provided adequate notice is provided to relevant Indian tribes.

An excerpt:

We find that the trial court did have reason to believe that A.M.C. and J.J.C. were Indian children and that the trial court erred in failing to ensure that proper notice was given to the appropriate individuals and agencies. We abate this cause to the trial court as stated above. If, after notice and a hearing, the trial court determines that A.M.C. and J.J.C are not Indian children, then the termination order will be affirmed. If, after notice and a hearing, the trial court determines that A.M.C. and J.J .C are Indian children, then the termination judgment of the trial court will be reversed and the trial court must conduct a new trial applying the requirements and standards of the ICWA.

Arkansas Court of Appeals Decides ICWA Notice Case

Matthew L.M. Fletcher

The court held that the trial court was correct in refusing to comply with the ICWA notice requirement when the father claimed Western Cherokee Nation of Arkansas and Missouri heritage.

Here is the opinion in Heard-Masterson v. Arkansas Dept. of Human Services.