ICWA

Reminder: AFCARS Comments on ICWA Due April 23

Kate Fort

I posted about this here, and comments are due April 23. The Indian Law Clinic should have a model comment available for tribes to use and edit by the end of next week.

This rule proposes to require states that receive federal funding for their foster care systems to gather accurate data on children in state courts who are subject to ICWA’s protections. This is done through the Adoption and Foster Care Analysis and Reporting System (AFCARS) If you are a state worker, please encourage your state agency to comment in favor of this rule.

The proposed rule is here and is nearly identical to the one promulgated in 2016 (and then withdrawn by the Trump administration).

ProPublica Follow Up Article on Bonding “Expert”

Kate Fort

In a follow up to the foster parent intervention article that was published in ProPublica and The New Yorker in October, this week ProPublica published an article on the woman who regularly wrote expert reports supporting foster care placement over parents and relatives.

Here.

Who hired and was paying her in the case that she was being deposed about? The foster parents, she answered. They wanted to adopt, she said, and had heard about her from other foster parents.

Had she considered or was she even aware of the cultural background of the birth family and child whom she was recommending permanently separating? (The case involved a baby girl of multiracial heritage.) Baird answered that babies have “never possessed” a cultural identity, and therefore are “not losing anything,” at their age, by being adopted. Although when such children grow up, she acknowledged, they might say to their now-adoptive parents, “Oh, I didn’t know we were related to the, you know, Pima tribe in northern California, or whatever the circumstances are.”

The Pima tribe is located in the Phoenix metropolitan area.

HHS Releases Proposed Rule to Collect ICWA Data through AFCARS, Comments Needed

Kate Fort

If you are reading that title and thinking, “Kate, I am pretty sure you have posted this before. Like, a lot.” you are not wrong:
https://turtletalk.blog/?s=AFCARS

In fact, titles from prior posts include “Adoption and Foster Care Analysis and Reporting System (AFCARS) Notice of Proposed Rule Making. Again.” and “Déjà vu All Over Again: AFCARS Comments Needed“

The short version of this 10 year saga is that at the end of the Obama administration, HHS promulgated a rule that would require Title IV-E agencies to collect information on ICWA. Before that could go into effect, the Trump administration withdrew it, and issued a different rule. After that happened, tribes and groups representing LGBTQ+ interests sued the feds to get the original rule back. Disclaimer, the MSU Indian Law Clinic represents the plaintiffs in that litigation along with Lambda Legal and Democracy Forward. Finally, the Biden administration has proposed a new rule that would go back to collecting ICWA data (this rule does not include sexual orientation or gender identity data elements). This means, yes, if you have worked in this area for the past 10 years, you may have submitted upwards of 5 sets of comments on this issue (I just checked, and we put our first one in 9 years ago, which was written by a 2L who is now a tribal leader).

The proposed regulation is here, as is the link to submit comments:

https://www.federalregister.gov/documents/2024/02/23/2024-03373/adoption-and-foster-care-analysis-and-reporting-system

What does this mean? Well, dust off your prior comments regarding the history of ICWA, the importance of ICWA, the importance of data related to ICWA, the importance of ICWA data to the children, families, and tribes involved in the system, and review the latest proposal. The actual data reporting requirements begins on 13665. Then submit an updated version of your comments in support of collecting ICWA data before April 23, 2024.

At a very first glance, this proposed rule appears to include a lot of important data questions that would inform practice and help with compliance, and limit the data collection to “state” Title IV-E agencies. The proposed rule appears marginally more limited than the original 2016 rule, but more expansive than the 2020 rule, though I will need to compare them more closely.

Comment Deadline to Feds on ICWA Needs Extended to January 12

Kate Fort

This extension is regarding the letter in this post.

The Administration (DOI, HHS, and DOJ) are asking for input on the following:

What additional supports would Tribal leaders find helpful to build their Tribe’s capacity to exercise their rights and responsibilities under ICWA?  

Are there specific supports you believe the federal government could provide to help state courts and child welfare agencies meet their obligations under ICW A? 

In your experience, are there specific aspects or requirements of ICWA where state courts and agencies need to build greater understanding or capacity? 

Are there existing State-Tribe collaborative partnerships or processes that you believe have helped support effective implementation ofICWA? 

icwa_dear_tribal_leader_letter_to_extend_comment_deadline_enrd_comment_hhs.doj_.doi_final_10.06.23Download

Important Article on the Rise of Foster Parent Interventions in The New Yorker/ProPublica

Kate Fort

I’ve been posting and talking about this issue for a while now, and am very happy to see it highlighted in this article. The Colorado Office of Respondent Parents’ Counsel has been collecting incredibly important data (headed up by a proud MSU alum!) on what happens when foster parents intervene. I strongly encourage anyone in the position to do so to begin collecting this same data.

https://www.propublica.org/article/foster-care-intervention-adoption-colorado

Intervenors can file motions, enter evidence and call and cross-examine witnesses to argue that a child would be better off staying with them permanently, even if the birth parents — or other family members, such as grandparents — have fulfilled all their legal obligations to provide the child with a safe home. When Carter’s foster parents intervened in the hope of keeping him, they turned to the firm of Tim Eirich, a Denver adoption attorney who charges as much as $400 an hour and has almost single-handedly systematized intervention in Colorado.

***

The Trump and Biden administrations have both pressed states to keep a larger percentage of kids with birth parents or kin. Intervention, a state-level counter-trend, is supported by foster parents’ rights groups and advocates at national conservative organizations.

***

Since 2018, South Carolina’s courts and lawmakers have affirmed the right of any state resident to file to adopt any foster child, as well as the right of foster parents to intervene. In 2020, Kentucky amended its law to let foster parents intervene as legal parties in involuntary terminations of birth parents’ rights. And this year Florida passed a law saying that if birth parents move to have their child adopted, including by a biological family member, long-term foster parents can intervene to contest that outcome. Kathryn Fort, the director of the Indian Law Clinic at Michigan State University, told me that her practice has faced three sets of intervenors this year, all of them non-Native couples seeking to adopt a Native child.

Connecticut Law Review Symposium on Brackeen, Oct. 6

Kate Fort

Here.

Connecticut Law Review Symposium: 
Interrogating Haaland v. Brackeen

Family Regulation, Constitutional Power, and Tribal Resilience

Friday, October 6, 2023 | 12:00 pm-2:30 pm ET
Virtual

The Connecticut Law Review invites you to their 2023 symposium:
Interrogating Haaland v. Brackeen: Family Regulation, Constitutional Power, and Tribal Resilience

The litigation that led to Haaland v. Brackeen threatened to take down not only the Indian Child Welfare Act, but vast swaths of federal Indian policy and federal law. Instead, the Supreme Court’s decision left ICWA unscathed and affirmed the constitutional relationship between tribal nations and the United States. But threats to Native families and tribal sovereignty continue.

Native children continue to be removed from their communities by a well-funded market for adoptable children. A handful of states and interest groups continue to seek ways to undermine tribal authority and federal laws that support it. And because the Supreme Court held that the Brackeen plaintiffs lacked standing to raise their equal protection challenges to ICWA, those claims can be raised another day.

Leading scholars, attorneys, and tribal leaders, including Chairwoman Andrews-Maltais, Gregory Ablavsky, Laura Briggs, Seth Davis, Kate Fort, Ian Gershengorn, and Gerald Torres, will explore these and other issues raised by the decision in this symposium.

UNLV Law CLE on Brackeen, Sept. 20

Kate Fort

Here

After Brackeen: Outcomes and Implications of the Supreme Court’s Decision Upholding the Indian Child Welfare Act

Approved for 2 Nevada MCLE Credit

September 20, 2023

Virtual
10:00 a.m. – 12:00 p.m (Pacific Time)

Registration is required

Click Here To Register for The Virtual Webinar

~~~~~~~~~

In Person UNLV Student Viewing and Discussion (Lunch Provided)

10:00 a.m. – 12:00 p.m (Webinar Viewing) / 12:00 p.m. – 1:00 pm (Discussion)

Boyd School of Law Room 203

In Person Registration is required

Click Here To Register For the Student Only In Person Discussion

In June, the Supreme Court issued its long-awaited decision in Brackeen v. Haaland upholding the federal Indian Child Welfare Act. Enacted in 1978, the ICWA affirms tribal jurisdiction over state child welfare matters and sets uniform standards for child welfare cases involving Indian children. As the Court recognized, the law was a necessary and largely successful action by Congress to reverse decades of federal and state campaigns to remove Native children from their homes and sever ties between tribes and their children. The Court rejected several challenges to the law that, if accepted, would have had devastating consequences for children, families, and tribal sovereignty. 

Brackeen was a major victory for tribes and Native children. The majority opinion by Justice Barrett, and concurring arguments by Justice Gorsuch, addressed questions about Congressional power over Indian affairs, tribal sovereignty, and equal protection. As a follow up to our November 2022 webinar, which explored the various arguments and the impact of a potential decision on tribal courts and jurisdiction, this webinar will bring together experts in the field to explain the decision, its practical and jurisprudential significance, and what it portends for future cases involving the ICWA and tribal sovereignty. 

Featured Panelists:

Dear Tribal Leader Letter Regarding Uniform State ICWA Law

Kate Fort

The Uniform Law Commission is seeking to consult with tribes regarding the need and/or benefit of a uniform ICWA law for those states that either need to update their current state laws or do not have one yet. Consultation will be held via zoom on September 6, with written comments accepted through September 30. Please see the letter for additional details on the project. Please distribute widely.

ULC ICWA Committee Report to Scope Committee

Dear Tribal Leader Letter

State ICWA Law Chart

Kate Fort

Over the last week, I’ve put together a (large, clunky) Google sheets of all the state ICWA laws. It isn’t perfect and subject to change as I see problems or people tell me there are problems. Sheets can be difficult, but it is nice to use to keep it updated. Someday I’ll learn how to make a proper database, but I know there is a need for this now rather than later.

I’ve linked to it on the state law page here and the link directly to the sheet is here.

Updated: California Supreme Court Granted Rare Reviews in Two Sets of ICWA Inquiry Cases

Kate Fort

Buckle up–this is a long one. ETA: And it just keeps getting longer. See below for the latest addition.

For a while now, California courts of appeal have been struggling with the level of ICWA inquiry required in a child protection case. These inquiry cases often involve are about inquiry beyond that of asking the parents about their Native ancestry. The question usually is what is the duty of inquiry to extended family members after parents have repeatedly and unequivocally denied any Native ancestry, as it is in the as it is in the Dezi C. case. However, the other case granted, Kenneth D., the court failed to inquire of father at all. These appeals are also coming up very late in the proceedings–in both cases the appeal was of a termination of parental rights order.

The CA courts of appeal have been fighting about the standard for years, though I would say in the past two-three years it has become particularly acute. There are so many contradictory reported cases that I haven’t posted a vast majority of them. I’ve had a draft post running for almost a year trying to collect and explain what was going on, but it is far too unwieldy. In 2022, I started tracking only reported ICWA cases. In 2022, California had 35 REPORTED ICWA cases on inquiry alone:

Screenshot 2023-07-27 at 11.33.29 AM

In all of 2022, there were only 67 TOTAL reported ICWA cases, making these inquiry cases a full 53% of all ICWA cases that year.

First Set of Appeals: Inquiry of Relatives

The California Supreme Court granted review on Dezi C. and Kenneth D. from the 2022 bunch in the past year or so. As you can see, I had classified the Dezi C. case as a “reason to believe” which means the Court did analysis on the level of information it needed to determine if the case was an ICWA case.

Dezi C. Opinion

KennethD C096051

CA Supreme Court Grants

The Dezi C. opinion outlines the current state in the California courts of appeal regarding whether “defective initial inquiry is harmless.” There were three concurrent rules as of the time of the opinion (June 14, 2022 if you wondered how slowly the CA Sct works):

1. “Automatic Reversal Rule:” Any defective initial inquiry requires reversal on that issue.

2. “Readily Obtainable Information Rule:” Defective initial inquiry is harmless unless the record indicates there is “readily obtainable information” that will “bear meaningfully” on the question on if the child is an Indian child.

3. “Presumptive Affirmance Rule:” Defective initial inquiry is harmless unless the parent comes forward with a reason on appeal why further inquiry would change the outcome of the ICWA determination.

Dezi C. introduced a fourth rule–

4. “Reason to Believe Rule:” objectively the only one that quotes the actual law, this rule states the record on appeal must “contain information suggesting a reason to believe the child may be an ‘Indian child.'” The Court gives three examples that would require reversal–someone tells the Agency there may be Native ancestry and the Agency ignores it; no one inquires of the parents if they have Native ancestry; the parents are adopted themselves and may not have the required information.

The Court then goes on the explain in detail why their rule is best and the other rules are the worst (obvi).  

In applying the reason to believe rule to the facts of the case, the Court found there was no reason to believe the children were Indian children, as both parents denied to the Agency, on a form, and in court that they had any Native heritage. No one came forward claiming they did. The parents grew up with their biological families. And on appeal, the mother did not offer any evidence that either parent in fact has Native ancestry. Therefore, the failure of the Agency to do further inquiry to extended family members was harmless error. 

The question at the Supreme Court is as follows:

In Re Dezi C., S275578. (B317935; 79 Cal.App.5th 769; Los Angeles County Superior Court; 19CCJP08030.) Petition for review after the Court of Appeal affirmed orders in a juvenile dependency proceeding. This case presents the following issue: What constitutes reversible error when a child welfare agency fails to make the statutorily required inquiry concerning a child’s potential Indian ancestry?

The Kenneth D. court applied the Dezi C. fourth rule to fairly different facts. In Kenneth D. the trial court completely failed to inquire of the putative father’s Native ancestry. The court order termination of parental rights on Mrch 22, 2022 and father appealed. The Agency supplemented the record on April 28 with the following information received from the father on April 21: Father said he might be Cherokee, and that his mother (grandmother) would have the information. The Agency spoke with the grandmother who explained their entire family is from Mexico so the Native heritage result she received on a DNA test likely results from Mexico. The grandmother provided the Agency with additional family contact information.

Mother in the case originally said she might have some Native ancestry from her Kentucky relatives, but denied any family member was a tribal citizen or that she was eligible to be a tribal citizen.

The father appealed the termination order asking for a reversal because of the lack of inquiry and the court held under the Reason to Believe test that the error of the court in not conducting an initial inquiry TO A PARENT was harmless.   

The question at the California Supreme Court is as follows:

In re Kenneth D., S276649. (C096051; 82 Cal.App.5th 1027; Placer County Superior Court; 53005180.) Petition for review after the Court of Appeal affirmed an order in a juvenile dependency proceeding. This case presents the following issues: May an appellate court take additional evidence to remedy the failure of the child welfare agency and the trial court to comply with the inquiry, investigation, and notice requirements of the Indian Child Welfare Act (25 U.S.C. § 1901 et seq.; Welf. & Inst. Code, § 224 et seq.), and if so, what procedures must be followed?

Briefing in Dezi C. is here

Kenneth D is here 

Second Set of Appeals: Interpretation of California Welfare and Institutions Code Sec. 224.2(b)

In 2023, there have been fewer reported cases on inquiry so far (only 9, though there was one this week I haven’t entered into this spreadsheet, but talk about below):

Screenshot 2023-07-27 at 3.26.41 PM

There have been 28 (29 if you count Brackeen) reported cases total, so they are currently running less than half of the total.

However, there was a new issue that arose in In re Robert F. and In re Ja. O. out of the Fourth District, Div. II, regarding California’s statutory requirement of inquiry. Both of these cases have been granted review in the California Supreme Court yesterday. The question turns on an interpretation of the California statute governing this issue. For reasons that feel to me like a scrivener’s oversight/a citation lost in the drafting, the Court held that when a child is removed pursuant to a warrant, there is no statutory requirement to make ICWA inquiry. But when a child is removed without a warrant, the statute does require the inquiry.

In both cases, the children are removed and ICWA would apply if the children “Indian children,” under the law, and inquiry should be happening in both instances. It is in many ways a distinction without a difference for the purposes of ICWA inquiry. Perhaps unsurprisingly then, the Fourth District, Div. II, late last week held the exact opposition in In re Delila D.:

We conclude there is only one duty of initial inquiry, and that duty encompasses available extended family members no matter how the child is initially removed from home. Applying a narrower initial inquiry to the subset of dependencies that begin with a temporary removal by warrant frustrates the purpose of the initial inquiry and “den[ies] tribes the benefit of the statutory promise” of A.B. 3176. (In re S.S. (2023) 90 Cal.App.5th 694, 711, 307 Cal.Rptr.3d 308 (S.S.).) The goal of the initial inquiry is to determine whether ICWA’s protections may apply to the proceeding, and the way a child is initially removed from home has no bearing on the question of whether they may be an Indian child. 

California Supreme Court Results from 7/26 Conference

In re Robert F.

In re Ja.O.

In re Delila D.

Finally, did I get myself turned around and initially post the older granted cases as the new cases and then find the new cases and have to go back and fix everything? Perhaps. Special thanks to Lenny Powell for alerting me after the original post and helping sort this all out. Maybe I got excited because few of us remember the last time ICWA came up to the CA Supreme Court back in 2015-2016 with the Abbigail A. (obligation to enroll) and Isaiah W. (notice) cases.