ICWA placement preferences

California COA Decides ICWA Placement Preferences Matter

Matthew L.M. Fletcher1 Comment

Here is the opinion (Cal. App.):

In re Autumn K

An excerpt:

This appeal challenges an order terminating the parental rights of mother Patricia M. and father Bryan K. to their daughter Autumn K. and placing the child for adoption. Because Autumn was of Chickasaw descent and thus an Indian child, the dependency proceeding fell within the provisions of the Indian Child Welfare Act, 25 U.S.C. section 1901, et seq. (ICWA). As such, there were particular substantive requirements with which the juvenile court was obligated to comply when selecting a permanent plan for Autumn. Most significantly, absent good cause to deviate from this requirement, ICWA obligated the court to place Autumn with a member of her extended family, a member of her tribe, or another Indian family. (25 U.S.C. § 1915.) Here, there were two potentially viable, ICWA-compliant placements: maternal grandmother Teresa, who had custody of Autumn’s six siblings and had sought placement of Autumn from the outset of the dependency case, and maternal aunt Beatrice. Despite that, the court, relying on a conclusion by respondent Del Norte County Health and Social Services Department (Department) that Autumn could not be placed in her grandparents’ home, placed Autumn in a non-Indian home with a distant relative.

On appeal, the parents contend the juvenile court erred for a multitude of reasons. We agree with one argument that necessitates reversal: the Department erred in determining maternal grandfather José had a nonexemptible criminal conviction such that Autumn could not be placed with her grandparents. We conclude two different statutory provisions instructed that the conviction was in fact exemptible, and the Department was thus obligated to evaluate the request for an exemption on its merits. We therefore reverse.

Alaska SCT Decision on ICWA Placement Preferences

Matthew L.M. Fletcher1 Comment

Here is the opinion.

An excerpt:

This appeal requires us to reexamine policies that underlie ICWA. Though we have previously held that the preponderance of the evidence standard set forth in Adoption Rule 11 applies, upon closer review we conclude that ICWA implicitly mandates that good cause to deviate from ICWA’s adoptive placement preferences be proved by clear and convincing evidence. To the extent our prior cases hold otherwise, they are overruled. We therefore vacate the superior court’s decision and remand for further proceedings in which the superior court shall apply the clear and convincing standard of proof to the good cause determination. We do not reach all the issues raised on appeal because we are remanding, but we address some of the tribe’s arguments regarding the good cause determination to provide guidance to the superior court and the parties on remand. We also clarify the analysis necessary when a party challenges the suitability of a preferred placement.

NPR: South Dakota Tribal ICW Directors’ Studies on State’s Incredible Lack of Compliance with the Indian Child Welfare Act

Matthew L.M. Fletcher1 Comment

Here, via Pechanga.

An excerpt:

South Dakota’s Indian Child Welfare Act (ICWA) directors have issued two reports to Congress: “Reviewing the Facts: An Assessment of the Accuracy of NPR’s ‘Native Foster Care – Lost Children, Shattered Families,’” and “Is South Dakota Over-Prescribing Drugs to Native American Foster Kids?” The first of these reports cites evidence that South Dakota’s Department of Social Services (DSS) is placing 87% of Indian children into non-Indian homes or group care, even while anywhere from 20-43% of licensed Native American foster homes in the state sit empty. This, according to the authors of the report, is in clear violation of the federal ICWA law which requires states to keep Native foster children with their extended families and tribes whenever possible. The study also affirms NPR’s assessment that the state’s ICWA violations are partly motivated by the tens of millions of federal dollars that South Dakota receives for placements of Native children each year.

Colorado COA Decides ICWA Placement Preferences Case

Matthew L.M. Fletcher

Here is the opinion in People ex rel. A.R.

The court’s syllabus:

In this dependency and neglect proceeding, mother appealed from the judgment terminating her parent–child legal relationship with A.R. The Department of Human Services (Department) joined mother’s appeal of the termination and also challenged that part of the judgment addressing the Department’s guardianship. The judgment terminating mother’s parental rights was affirmed, the part of the judgment addressing guardianship was reversed, and the case was remanded.

Because A.R. is an “Indian child” as defined in 25 USC § 1903(4), these proceedings were subject to the Indian Child Welfare Act (ICWA), 25 USC §§ 1901 to 1963. Mother contended that the court erred in terminating her parental rights. She asserted that the Department did not meet the ICWA’s “active efforts” requirement, and there were viable, less drastic alternatives to termination, including A.R.’s placement with A.W. and C.W. The ICWA’s “active efforts” standard requires more effort than the “reasonable effort” standard in non-ICWA cases. Here, despite the court’s use of the term “best efforts,” the record supports the court’s determination that the Department’s actions met the requisite “active efforts” standard under the ICWA with regard to mother, A.W. and C.W. The trial court found, with record support, that although mother substantially complied with her treatment plan, it was unsuccessful in rendering her a fit parent and that her conduct or condition was not likely to change within a reasonable time. It also found that A.R. needs lifelong care or intensive services for her special needs, and mother was unable to provide those services. Additionally, placement with A.W. and C.W. without terminating mother’s parental rights was not a less drastic alternative; A.R. needed permanency, so it was not in her best interests.

The Department contended that, even if the court’s termination of mother’s parental rights was proper, the court erroneously deviated from the ICWA’s placement preferences when, in granting the Department guardianship, it denied the Department permission to place A.R. with A.W. and C.W. for purposes of adoption. The ICWA presumes that the child’s best interests are served by placement with an extended family member who also has Indian heritage. Here, the record does not support the trial court’s finding that there was good cause to deviate from the ICWA’s placement preferences. Therefore, the court erred in deviating from the ICWA’s placement preferences. The trial court’s judgment was reversed in this regard and the case was remanded with directions for the court to allow the department to arrange a home visit with A.W. and C.W., and to consider an adoption or preadoptive placement of A.R. consistent with the ICWA placement preferences, including possible placement with A.W. and C.W. or her foster parents.

Arizona Court of Appeals Affirms Deviation from ICWA/BIA Placement Preferences

Matthew L.M. Fletcher1 Comment

Here is the opinion in Navajo Nation v. Arizona Dept. of Economic Security:

Navajo v ADEC

An excerpt:

The Navajo Nation (“the Nation”) appeals the juvenile court’s judgment finding good cause to deviate from the placement preferences set forth in the Indian Child Welfare Act of 1978 (“ICWA”), 25 U.S.C. §§ 1901 to 1963 (2006), and allowing the child (“Z.”) to remain with his current non-relative, non-Indian adoptive placement. We affirm. The juvenile court properly found good cause to deviate from ICWA placement preferences because the placement family provided good care for Z., Z. had attached and bonded with the family, Z. would suffer severe distress if he was removed from that placement, the placement family would expose Z. to his Navajo culture, and the placement family had been approved to adopt Z. While the interest of the Nation and the Congressionally-presumed interest of Z. in maintaining his heritage weighed against a finding of good cause to deviate from ICWA’s preferences, on this record we cannot say the court erred in weighing all these interests.

Local news coverage here.

South Dakota Supreme Court Decides ICWA Case — When Good Cause Exists to Deviate From Placement Preferences

Matthew L.M. Fletcher1 Comment

Here is the opinion in In re D.W.

The Court’s first holding:

The “clear and convincing” standard appears to be the better-reasoned approach.  It is consistent with both the congressional intent in adopting ICWA and this Court’s precedent.  Therefore, we conclude that deviations from the ICWA placement preferences require a showing of good cause by clear and convincing evidence.

And the second:

Aside from Girlfriend, neither DSS nor the Tribe located another viable placement option within the ICWA preferences.  DSS explored placement options for over three and a half years, during which time Child was without a permanent home environment.  The circuit court was within its discretion to determine that a diligent search had been performed and that a suitable ICWApreferred placement could not be found.  See BIA Guidelines, 44 Fed. Reg. 67584, ¶ F.3.  The court’s findings of fact support its conclusion that at least one of the factors indicating good cause to deviate from the ICWA placement preferences existed in this case.  Therefore, the circuit court did not abuse its discretion in finding by clear and convincing evidence that good cause existed to place Child outside the ICWA placement preferences.

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