ICWA Decision out of Missouri on Tribal Intervenor (Relator) Standing and Writ of Prohibition

From the facts in this opinion, it’s clear this is a pretty contested post termination of parental rights/foster care adoption case from the southern district of Missouri (Poplar Bluff, Springfield). What is not in the opinion but is available on the Westlaw decision page are the attorneys involved in the case. I’m sure it’s some local southern Missouri attorneys:

Attorneys for Relator – Heidi Doerhoff Vollet of Jefferson City, MO; James R. Layton of St. Louis, MO
Attorney for Respondent Judge – Scott S. Sifferman Acting Pro Se
Attorneys for Minor – William Petrus of Mt. Vernon, MO (GAL); Matthew D. McGillDavid W. Casazza, Robert Batista, Todd Shaw of Washington, D.C.
Attorneys for Respondents Foster Parents – Toni M. Fields of Cassville, MO; Paul Clement, Erin Murphy of Washington, D.C.; Kevin Neylan of New York, NY

Huh.

Even so! In this case, the Court of Appeals found the Choctaw Nation had standing to to bring the writ of prohibition against the judge and the Court of Appeals entered the writ (Respondent is the trial judge)(also, this is why formal legal intervention is so important for tribes whenever possible)(also why it’s good to find local family law attorneys who can talk about things like “writs of prohibition” with expertise):

In his brief, Respondent argues that the Choctaw Nation does not have standing to seek this writ of prohibition. On two occasions, Respondent granted the Choctaw Nation the right to intervene in this protective custody proceeding under 25 U.S.C. § 1911(c), and also granted the Choctaw Nation the right to intervene in Foster Parents’ adoption proceeding. We see no error in these rulings. The Choctaw Nation has standing to seek
this writ of prohibition.

***

Respondent did not have the express or implied authority to interfere in the Children’s Division’s administrative review of a nonfinal administrative recommendation for adoption, and then substitute Respondent’s judgment for that of the Children’s Division and compel the Children’s Division to reach or adhere to a particular recommendation.

Reported N.C. ICWA Notice Case

There’s not much groundbreaking about this ICWA notice case, but this information did catch my eye. A letter from the BIA apparently stated:

The Bureau of Indian Affairs specified in relevant part as follows:

a. The BIA acknowledges that you have notified the family’s identified Tribe(s) Tuscarora, Tonawanda, Mohawk, Seneca, Oneida, EBCI, Cayugo, Onondaga, and Keetoowah based on your inquiry with the family according to 25 U.S.C. § 1912.

b. You have identified that Onondaga and Keetoowah have not responded. At this point, you have done due diligence and completed your ICWA responsibilities.

Do people regularly get letters where the BIA states the agency has “completed [its] ICWA responsibilities?” I haven’t seen this entered as evidence in other cases, so I’m curious. According to the record, this came from the BIA regional office in Tennessee.

Four Cert Petitions Filed in Texas v. Haaland [Brackeen ICWA Case]

Today Texas, the individual plaintiffs, the Solicitor General, and the intervening tribal nations filed petitions for certiorari with the U.S. Supreme Court asking the Court to review the Fifth Circuit decision regarding the constitutionality of the Indian Child Welfare Act. There will be some additional briefing over the next 30 days, and then/eventually the Court will decide whether to hear the case or not.

The Indian Law Clinic at MSU Law represents the intervening tribes in this case.

Season 2 of This Land Podcast Debuts August 23

Here

This season is all about the Indian Child Welfare Act and the federal attacks on it.

ALM – as referred to in court documents – is a Navajo and Cherokee toddler. When he was a baby, a white couple from the suburbs of Dallas wanted to adopt him, but a federal law said they couldn’t. So they sued. Today, the lawsuit doesn’t just impact the future of one child, or even the future of one law. It threatens the entire legal structure defending Native American rights. 

In season 2 of This Land, host Rebecca Nagle investigates how the far right is using Native children to quietly dismantle American Indian tribes. 

Tune in beginning August 23rd.

Bay Mills to Host Third Annual VAWA and ICWA Training

Bay Mills Indian Community

3rd annual Noojimo’iwewin: A VAWA and ICWA Training

Aug. 4-6, in-person and online 

Imange: In 2019, attendees gathered for the training at the Bay Mills Resort & Casino. While 2020 brought us a year of online trainings, this year, the event will be hosted as a hybrid. Attendees can join in-person or online.

BRIMLEY, Mich. — Picking up where last year’s training left off, Bay Mills Indian Community sets out to host its third annual Noojimo’iwewin: A VAWA and ICWA Training, Aug. 4-6. The event is hosted both in-person at the Bay Mills Horizon Center and online via Zoom. Once again, this timely training focuses on issues of child welfare, domestic violence, and community healing. Registration is free and still open!

Those who will attend in-person must book their room by at the Bay Mills Resort & Casino by Tuesday, July 27 using the training room block information. If you have any questions, please contact Neoshia Roemer at neoshia@whitenergroup.biz. This training is made possible by the Office of Tribal Justice’s TJS funding and organized by The Whitener Group.

This course is approved for 9.25 (including 1.25 Elimination of Bias) Minnesota Continuing Legal Education credits and this course is approved by the NASW-Michigan Social Work Continuing Education Collaborative for 9 credits.

Full press release here.

Active Efforts Case from South Dakota Supreme Court [ICWA]

South Dakota is sending us into the weekend with a positive attitude with this decision. In a shocking development [not shocking] it turns out that if an agency “ceased providing any efforts toward reunification after the December 2019 hearing. This means that from December 2019 to September 2020 no efforts were made by DSS to provide Mother remedial services or rehabilitative programs and no efforts were made to reunite C.H. with Mother” then, “[t]he circuit court’s finding of fact to the contrary—that DSS ‘has been providing active efforts to this family since October 2, 2018; including in-home services to prevent placement, and ongoing services to allow safe return of the child to no avail’—is not supported by the record. To the extent this finding suggests that DSS’s efforts were ongoing up to the point of the dispositional hearing, it is clearly erroneous.”

Unusually, I didn’t add any of the italics. That’s all the South Dakota Supreme Court. 

Also, anyone else get excited when a Court starts a paragraph like this: “Because this error [termination of parental rights] requires a remand, we take this opportunity to address additional errors that occurred below to prevent their reoccurrence.”?  _insert eating popcorn emoji_

So, in addition to not appointing the child an attorney despite state law requiring it, the Court also says “Second, although not raised as an issue on appeal, there are glaring defects involving ICWA mandates in the underlying proceeding that we cannot ignore.” The QEW testimony did not satisfy the evidentiary burden, and the court found that termination was not the least restrictive alternative given the child’s best interests. 

Mom did a ton of work on her own in this case despite and in spite of the state’s inaction. The Court’s recognition of this is a welcome change from most child welfare decisions. 

Appointment of Counsel Case out of OK Supreme Court [ICWA]

In a classic “ICWA means what it says” case (that means there is a lot of writing about dictionary definitions of terms in this opinion), the Oklahoma Supreme Court held a court can’t deny an indigent parent appointment of counsel for two years prior to a termination of parental rights filing. 

The trial court’s discharge of Mother’s court-appointed counsel left her without legal representation: 1) during her twin daughters’ removal from one relative foster home to another; 2) at all of the court-ordered ISP review/permanency hearings, which the record establishes she regularly attended; 3) during the Post-Adjudication Review Board (PARB) meeting held January 2017, when the Board advised Mother “to obtain legal aid to obtain custody of her children” and “DHS to help her complete this application”;19 and 4) at the August 23, 2017 hearing, during which the trial court approved DHS’ termination of trial reunification. Based on our interpretation of § 1912(b), Mother was required to have court-appointed counsel during the entire foster care placement proceeding.

WA Supreme Court En Banc Decision on Active Efforts [ICWA]

Justice Montoya-Lewis does it again, soundly rejecting the futility doctrine when it comes to providing active efforts to parents, and providing a treatise on what active efforts are and why ICWA requires them. Trying to pull out one quote is nearly impossible–just go read from page 16 to the end. And her last paragraph may become on one of the most quoted in ICWA caselaw:

The history of the United States and its relationship with Native tribes, communities, and families tell a story of promises made and broken. We rely on the commitment made by Congress and the Washington State Legislature to decline to remove Native children from their families and communities unless absolutely necessary and to actively work toward reunification in those limited instances when the high standard for removal has been met. Today, we hold our state child welfare system and our courts to those promises. We reverse the dependency court’s finding that the Department provided active efforts and remand to the trial court with instructions to order the Department to provide active efforts in accordance with this ruling. We also order the dependency court to not proceed to hear the termination petitions until the Department has provided active efforts.

 

In addition, the Washington team assembled a number of amicus briefs (including the MSU Indian Law Clinic) on this case. A special shout out to Tara Urs for being so on top of these cases every time. 

Motion for Summary Judgment and Amicus Briefs in AFCARS Lawsuit [foster care and adoption data for AI/AN and LGBTQ+ kids]

Final_Motion for Summary Judgment  

Plaintiffs have standing to bring this case. Plaintiffs here include the largest federally recognized tribes in California and in the United States, a coalition of dozens of tribes located in California, a foster youth and foster care alumni organization in Alaska, and three organizations from around the country that work with LGBTQ+ foster youth and/or youth who have experienced sex or labor trafficking. Each of these Plaintiffs works to improve the living conditions of youth in child welfare systems and to reduce the chance they will end up homeless, incarcerated, or otherwise severely harmed while in care. The data that Defendants have abandoned are irreplaceable for the efficacy of these efforts. The 2020 Final Rule substantially impedes Plaintiffs’ ability to pursue their missions. It makes it harder for tribes to vindicate their and their children’s rights and to protect their children’s well-being. Likewise, the rule makes it more difficult for groups serving youth in care, including LGBTQ+ youth, to address the overrepresentation of those youth in the foster care population and to prevent their disproportionately negative experiences. The 2020 Final Rule thus injures Plaintiffs—along with the vulnerable children they serve. 

ProposedOrder

Exhibits:

App.A

App.B

App.C

App.D

App.E

App.F

American Academy of Pediatrics_Amicus_Brief

AAP_Amicus_Motion

Members Of Congress_Amicus_Brief

MOC_Amicus_Motion

The MSU Indian Law Clinic represents the plaintiffs in this case along with our excellent partners, Democracy Forward and Lambda Legal.