ICWA

AFCARS Tribal Comments Needed-June 13 Deadline

Kate Fort

The Administrating is reconsidering the burdens of the Obama Administration’s Final Rule to collect data on American Indian/Alaska Native children in foster care through the Adoption and Foster Care Analysis and Reporting System (AFCARS). Comments are due June 13. Previous posts explaining this call for comments are here and here and here.

If you are interested in reviewing model comments for tribes stating the data elements should remain intact, please email Delia Sharpe (California Tribal Families Coalition)  at delia.sharpe@caltribalfamilies.org or me at fort@law.msu.edu

We will both be at the California ICWA conference today and tomorrow.

Update: New Briefs Filed in Brackeen v. Zinke

Neoshia Roemer

Below are the latest filings in Brackeen v. Zinke, challenging ICWA, filed in the Northern District of Texas District Court on May 25, 2018:

108 Law Profs

110-1-Gila Amicus

115 Feds Reply in Opp State Motion to Dismiss

116 Fed Reply in Opp Individual Motion to Dismiss

118-Tribal Intervenor Brief Opposing SJ

121-Feds Brief Opp to SJ States

123-Feds Opp SJ Individuals

124-1 State (CA, AK, MT, UT, NM, WA, OR) Amicus

125 – Tribal amicus brief (123 federally recognized tribes, AAIA, NCAI, NICWA, AFN, ASNA, AVCP, BBNA, CATG, Chugachmiut, Kawerak, Inc., TCC, USET, CTFC, Nebraska Indian Child Welfare Coalition

For more information, please visit the case page here.

Consent to Termination of Parental Rights Decision in Michigan Supreme Court

Kate Fort

Opinion here

The ICWA Appellate Clinic co-represented the tribe in this case.

This case involves a complicated question of state statute interpretation regarding a voluntary consent to a termination of parental right in the face of a state termination petition. In this case, the dad consented to termination before the termination hearing. The children were later placed in a tribal-approved foster placement, and the dad withdrew his consent to termination. The question was whether dad could do that under Michigan statute.

None of the protections in MCL 712B.15, [mirroring ICWA’s main protections in an involuntary proceeding] which are designed for contested and adversarial proceedings, remains relevant once a parent voluntarily releases his or her rights under MCL 712B.13. When the court accepted Williams’s release, and the proceedings went from adversarial to cooperative, the protections of MCL 712B.15 did not apply.

However, the Court also held,

That is, Williams may withdraw his consent, but because he is still subject to MCL 712B.15, DHHS may refile a termination petition. MCL 712B.15. And, under MCL 712B.13(3), a parent who consents during an involuntary termination proceeding is not entitled to “the return of the Indian child” to him or her.

Instead, the child returns to the position the child was in before his or her parent consented to the termination of parental rights. Williams’s children were in foster care when he consented to the termination of his parental rights, his children will remain in foster care, and Williams will be once again subject to the procedures and protections of MCL 712B.15. DHHS may proceed with its termination case if it chooses, and if DHHS can satisfy the heightened requirements of MCL 712B.15, Williams’s parental rights can be terminated.

Briefing on the case is here.

ICWA QEW Opinion in the Minnesota Supreme Court

Kate Fort

Opinion

The question of what Qualified Expert Testimony (QEW) actually is under ICWA comes up all the time. The Minnesota Supreme Court did a pretty deep dive into what it means in terms of termination of parental rights, and concludes,

Read straightforwardly, the statute provides that to terminate parental rights, a district court must determine that “continued custody of the child by the parent . . . is likely to result in serious emotional or physical damage to the child.” 25 U.S.C. 1912(f). This determination must be supported by evidence “beyond a reasonable doubt,” and part of the supporting evidence must be QEW testimony. Id. The statute is unambiguous.

. . .

The parents . .  suggest that the statute requires that the QEW testify specifically that “continued custody . . . is likely to result in serious emotional or physical damage.” 25 U.S.C. § 1912(f).  . . . If Congress wanted to impose a requirement that the expert utter a “magic phrase,” it could have done so. But as written, neither ICWA nor MIFPA require a specific QEW opinion that “continued custody . . . is likely to result in serious emotional or physical damage.” 25 U.S.C. § 1912(f); Minn. Stat. § 260.771, subd. 6(a). S

…

Accordingly, we conclude that in a termination proceeding governed by ICWA and MIFPA, a court cannot terminate parental rights unless it determines that evidence shows, beyond a reasonable doubt, that continued parental custody of the child is likely to result in serious emotional or physical damage to the child. That determination must be supported by QEW testimony.

Because the QEW admitted on the stand that she focused most of her testimony and affidavits on the mother (who was a tribal member) and not the father (who not an enrolled tribal member in any tribe), the court held her testimony did not support the termination as to father.

I get questions pretty frequently about QEW, QEW training, and whether a person should be a QEW. My answer is almost always the same–a QEW must be comfortable stating that the parental rights should be terminated, or that these children should be put in foster care. That information is what is required by statute, and why the state (or party seeking removal/termination) must put a QEW on the stand. The QEW is ultimately there to testify against the parents, regardless of any other testimony they may proffer.

ICWA Notice Decision in the Colorado Court of Appeals

Kate Fort

Opinion here

This is a fairly standard notice decision, but the instructions on remand are the kind that more courts of appeals need to provide in ICWA cases. As they are nearly four full pages long, I’m not quoting them here, but I am posting the opinion because of them.

Also, by “fairly standard notice decision”, I mean the Department was aware of possible American Indian/Cherokee heritage in May, and no one did any notice till December, a month after the Department filed the TPR. The Court of Appeals sent it back down to fix that.

2017 ICWA Case Law Update and Commentary

Kate Fort

Addie Smith and I put this together:

Indian Child Welfare Act Annual Case Law Update and Commentary

This article provides a comprehensive catalog of published ICWA jurisprudence from across all fifty states in 2017. Designed as a quick reference for the ICWA practitioner, this article summarizes key case decisions that have interpreted the law in meaningful, significant, or surprising ways. It also tracks current attempts by ICWA’s opponents to overturn the law. By providing an overview of last year’s ICWA cases, this article is meant to keep practitioners up-to-date so they can be effective in the juvenile courtroom without sorting through and reading the dozens of cases published across all fifty jurisdictions.

Montana Supreme Court ICWA Case on Termination Standards

Kate Fort2 Comments

Here

Appellant M.D. (Father) challenges the Thirteenth Judicial District Court’s decision to terminate his parental rights to his minor child, A.L.D. Father contends that the State of Montana’s Department of Public Health and Human Services (Department) did not provide the active efforts required under 25 U.S.C. § 1912(d) to prevent the breakup of an Indian family; that A.L.D. was placed in a foster home in violation of the placement preferences set forth in 25 U.S.C. § 1915; and that Father’s attorney provided ineffective assistance of counsel. We affirm.

Briefs:
Appellant Brief

Appellee

Reply

Texas v. Zinke (ICWA Challenge) April Update

Kate Fort

There were some thirty entries on the Texas v. Zinke docket this month. Relevant documents are on the case page.

Since our last update, the feds filed another motion to dismiss. The plaintiffs’ seperated into private and state parties for briefing–so the state plaintiffs have filed one brief, and the individual plaintiffs filed another (up to 70 pages each). Both, however, filed a combined opposition to the government’s motion to dismiss and motions for summary judgment.

Ohio and Goldwater have filed amicus briefs on the opposition to the motion to dismiss.

Navajo Nation motioned to intervene for the purpose of a Rule 19 dismissal.

The federal government and the plaintiffs are going back and forth on the scheduling of additional briefing, but there are no orders yet.

Arizona Pro Hac Vice for ICWA Attorneys: UPDATE

Kate Fort1 Comment

COMMENTS NEEDED for this rule change–go HERE.

Previous post with questions here. Proposed changes here.

Here’s the clarification–the proposed rule change provides TWO options for out of state attorneys in Arizona ICWA cases:

The first is the change to Rule 38, which requires the course (online, about 6 hours, available here). That rule is for the out of state attorneys who contemplate being involved in a number of ICWA cases in AZ over a two year period (say you’re a tribe that divides up your ICWA cases and responsibilities by region, FOR EXAMPLE).

The second change is to Rule 39 and is for attorneys that have an immediate need and/or the rare case in AZ and only plans on appearing for that case. The course is not required for a Rule 39 exception.

This is a really interesting model. Out of state tribal ICWA attorneys are STRONGLY encouraged to file comments explaining your need for special practice rules, and any suggested changes you think might improve the rules.

Thank you to everyone who helped explain Arizona practice, the UBE, and the distinction to between the rules.

Oklahoma Court of Appeals on Reason to Believe ICWA Case

Kate Fort

Here is the opinion.

This case went to trial–a unique aspect of Oklahoma child welfare law–on January 23, 24, and 25, where the Mom testified about her work in getting the children enrolled in the Choctaw Tribe. When Mom appealed the termination of parental rights based on lack of ICWA compliance, the

¶10 State filed an objection and response asserting, inter alia: “At the time of trial, the evidence and record showed the children were not members of an Indian tribe.” It claimed that “the only other way the children could be defined as Indian children implicating the application of ICWA was if the children were ‘eligible for membership [in a tribe] of which the biological parent is a member.’ See BIA Regulations §23.108(a).” State argued that, because Mother testified she is a member of the Cheyenne Arapaho Tribe and the children are not eligible to be members of that tribe, “but that she was trying to enroll the children as Choctaw (of which she could not be a full member given her membership in Cheyenne Arapaho), there was no reason to believe the children met the definition of ‘Indian Child’ at the time of trial given the evidence and testimony in the record.” It argued that the record in the case showed that the children were not tribal members at the time of trial and the record only reflected their membership after Mother filed the motion for new trial.

(emphasis added)

Therefore,

¶28 Although it is clear the trial court and State may not have been affirmatively informed of the children’s membership in the Choctaw Nation until February 3, 2017, this date is not determinative of the date ICWA became applicable. We reiterate that the trial court and State had reason to know at trial that ICWA may very well apply and this warranted further investigation. Despite the Choctaw Nation’s previous communication about the children’s membership status, Mother’s detailed testimony about establishing her own membership and the children’s membership raised red flags that further inquiry at trial was needed despite the Choctaw Nation’s earlier communication.

¶29 We recognize that that does not mean that IWCA applied to the case from the date it was filed in 2011. ICWA became applicable on the date the children became eligible for enrollment3 or the date they enrolled, which was January 20, 2017. At the latest, ICWA applied as of January 20, 2017, a date before trial started. ICWA’s provisions, including the heightened burden and expert witness requirements, were applicable at trial.

The distinction between when a court has reason to know a child might be an Indian child and then when ICWA applies (prospectively, Oklahoma has frustratingly stated in the past, In re M.H.C., 2016 OK 88, 381 P.3d 710) is a question we get a lot.