ICWA

Notice Case out of California [ICWA]

Kate Fort

Since April, the California courts of appeal have been wrestling with California’s new law defining “reason to know” from ICWA’s section 1912 and “reason to believe” (state law standard). In addition, the department has been regularly petitioning to make cases reported rather than unreported. Since April with the In re Austin J. case, California courts have been reshaping their very low bar for notice to tribes into a much higher one, with the caveat that the California standard of “reason to believe” does require contact with tribes though not necessarily formal notice. Given California’s outsized role in notice and inquiry ICWA cases, this is a trend that bears watching, with the understanding this is based on California state law, and not the federal ICWA.

Here is In re M.W., decided on May 11. The Department petitioned for publication on May 15 and it was published on June 5. Under the reason to believe standard, the social worker,

The report documented the social worker’s contact with the 12 tribes by telephone, fax, e-mail, and/or mail, the name of the designated agent for each tribe, the dates of attempted contact with each designated agent (all between May 15 and June 4, 2019), and that each tribe was provided with the minor’s “ICWA Family Tree.” As of the date of the report, four of the tribes had confirmed the minor was not an Indian child. As of the July 10, 2019 hearing, six additional tribes had confirmed the minor was not an Indian child, and the two remaining tribes (the Navajo Nation and the White Mountain Apache Tribe) had acknowledged contact but had not yet provided a definitive response.

I am curious to know how out of state tribes are feeling this system is working, given that while California may change its ways, tribes are generally set up to receive the paperwork to confirm a family’s tribal membership, and we already know that informal phone calls to confirm or deny a child’s eligibility can be problematic. Early outreach is great, if it works to give tribes MORE information and not less.

Notice and Enrollment Case from Colorado Court of Appeals [ICWA]

Kate Fort

Here

This is a really interesting opinion, and balances a lot of interests. The issue of how to get a child who is both eligible for tribal membership and in foster care leads to a lot of questions about who gets to make the decision of enrollment. The agency has technical decision making authority for the children, but may choose to not enroll the children–as they did in this case–thus denying the application of ICWA (and a whole host of other citizenship related benefits and responsibilities). It may even mean the child can never be members, since some tribes don’t allow adults over the age of 18 to enroll. The Colorado Court of Appeals has just decided that the Court must make the final decision in those cases about whether a child should be enrolled or not.

In this case, mom told the agency the dad had Chickasaw heritage. This was enough for the agency to send notice to the Tribe. The Tribe responded that both the dad and the children were eligible for membership in the tribe, send membership applications, and asked the agency to assist the parents in enrolling the children.

The agency did NOT enroll the children, and did NOT tell the court of the Tribe’s response. The court only became aware of the response in the petition for termination. The court found ICWA did not apply, and terminated mom’s rights. The Court of Appeals determined that was not appropriate, and has created the process of an “enrollment hearing,” where the agency must deposit the Tribe’s request for enrollment with the court, and then the court must have a hearing–

Thus, once the response from the tribe has been deposited
with the juvenile court as set forth in Part II.B, we conclude that the
court must set the matter for a hearing to determine whether it is in
the best interests of the children to enroll them in the tribe. See
People in Interest of L.B., 254 P.3d 1203, 1208 (Colo. App. 2004) (A
juvenile court “must conduct a hearing to determine the proper
disposition best serving the interests of the child.”).

¶ 23 Of course, at an enrollment hearing, as at any other hearing in
a dependency and neglect proceeding, the court must give primary
consideration to the children’s best interests. See K.D., 139 P.3d at
698; C.S., 83 P.3d at 640.

¶ 24 And, in determining the children’s best interests, the juvenile
court must hear and consider the positions of the parents, as well
as the department and the guardian ad litem (GAL), all of whom
have standing, as relevant here, to speak to the merits of the tribe’s
enrollment request.

Though everyone can be heard, the court goes on to say,

Thus, at an enrollment hearing, the juvenile court should not
treat an objection, even from a parent, as a veto. On the contrary,
any reason for objection must be compelling considering ICWA’s
intent to maintain or foster the children’s connection with their
tribal culture.

Of course, the Tribe sent that letter requesting assistance enrolling the children in October of … 2018. Which means, of course, the twins who were a month old in May, 2018 are now two years old, never had any ICWA protections, and will now have their case go back to the trial court for a membership determination and a re-do of their child welfare case.

Proposed Pro Hac Vice Rule Change for ICWA Cases in Utah

Kate Fort

Please comment here by MAY 22.

Here is the proposed rule.

This is a big deal. Utah is a particularly difficult state to pro hac into–it is a multi-step, long and expensive process.

As always, the ICWA pro hac rules are updated here.

Kevin S. Settlement Agreement Involving New Mexico Child Welfare and Includes ICWA

Kate Fort

Here

Indian Child Welfare Act
  • A State ICWA law that mirrors and expands upon the federal version and that will be drafted with the Administrative Office of the Courts and with New Mexico Tribes and Pueblos
  • Processes and procedures to promote traditional interventions as first-line interventions and services, developed with the input of New Mexico’s Tribes and Pueblos
  • Federal funding for traditional and culturally responsive treatments, interventions, and supports, including non-medicalized interventions
  • A plan to increase recruitment and retention of Native resource families
  • A policy to provide or ensure provision of direct assistance for traditional ceremonies, including arranging for all preparation and providing payment if needed, if Native Children want to participate

Inquiry and Notice Case out of California (Published!)[ICWA]

Kate Fort

B300468

At the detention hearing, Father said he had Native American Indian heritage, but he was unable to identify the correct tribe. Father believed his heritage was through his paternal grandmother. He provided CWS and the juvenile court with the names of his father and grandmother.

***

Father argues CWS failed to comply with ICWA requirements and the juvenile court did not make findings on whether ICWA applied. He contends the court was “not authorized to proceed with foster care placement until ICWA notice has been sent and received.” He is correct.

***

Here, CWS had reason to know the children might be Indian children. Accordingly, CWS was required to comply with ICWA notification requirements at least 10 days before the disposition hearing, because the hearing was an involuntary proceeding in which CWS “was seeking to have the temporary placement continue[d].” (Jennifer A., supra, 103 Cal.App.4th at pp. 700-701; 25 U.S.C. § 1912(a).)

This is very different from the reasoning applied by the Washington Court of Appeals here.

Indian Child Case out of the Colorado Court of Appeals [ICWA]

Kate Fort

18CA2258-PD

An example of what a mess happens when an agency proceeds on termination of parental rights before establishing tribal membership. And an answer to the question what happens to all those cases remanded for notice.

California Misinformation in an ICWA Case

Kate Fort

Opinion

There are too many unpublished cases to post here, but this one including the following quote, which I think is important for understanding how few people in the child welfare system have a handle on ICWA’s protections, even today. I’m sure all the tribal attorneys are surprised to find out they might have to appoint a parent an attorney:

The social worker informed Mother that if she was “found to have affiliation with the tribes, she could be appointed an attorney from the tribes and placement of the children could change.”

Guardianship Case out of Nebraska [ICWA]

Kate Fort

Here.

You have to love a court that starts the opinion so clearly:

The federal Indian Child Welfare Act (ICWA) and the Nebraska Indian Child Welfare Act (NICWA) provide specific procedures and requirements that apply in certain proceedings involving the custody and adoption of and termination of parental rights to Native American children. This case requires us to decide whether those procedures and requirements apply in a case in which a maternal grandmother sought to establish a guardianship for an Indian child over the objection of her daughter, the child’s mother. After interpreting the relevant statutory language, we conclude that the guardianship proceeding at issue was governed by ICWA and NICWA. In addition, we find that the grandmother did not make the showing required by ICWA and NICWA. We therefore reverse the order of the county court establishing the guardianship and remand the cause with directions to vacate the guardianship, dismiss the petition, and return custody to the child’s mother.

Cool Pro Hac Update from Ho-Chunk Nation

Kate Fort

HCN has updated their own tribal rules of civil procedure to allow for a pro hac waiver in tribal court for child welfare cases:

(C) Counsel not admitted to practice before the Ho-Chunk Nation Courts, but seeking to appear on behalf of a federally recognized Indian tribe in a proceeding regarding a petition for guardianship or for child protection over a child who is a member of that tribe, or eligible for membership in that tribe, shall be permitted to appear without paying any fee. Counsel representing an Indian tribe in such a matter shall also be permitted to make their appearance without filing a motion for special appearance, provided that, at that appearance, said counsel states on the record that they are admitted to practice in another state, federal, or tribal jurisdiction; that they have been in actual practice for two or more years, and takes the oath or affirmation for practice. This rule shall not apply to attorneys who appear on behalf of the Ho-Chunk Nation.

HCN Civ. Pro. R. 16(c)

We’ve updated the pro hac page accordingly.  Obviously these are not ICWA pro hac waivers, but are related and can be used to show comity in this area.