ICWA

HHS in the News, and in Regulations, and in Lawsuits

Kate Fort1 Comment

Late last week, this article from Politico started making the rounds:

But the Trump administration contends the tribes are a race rather than separate governments, and exempting them from Medicaid work rules — which have been approved in three states and are being sought by at least 10 others — would be illegal preferential treatment. “HHS believes that such an exemption would raise constitutional and federal civil rights law concerns,” according to a review by administration lawyers.

The Tribal Technical Advisory Group sent a letter to Administrator Verma, linked to in the article and also posted here. The Dear Tribal Leader letter from CMS is attached as an appendix to that letter. As the article states, the letter says “Unfortunately, we are constrained by statute and are concerned that requiring states to exempt AI/ANs from work and community engagement requirements could raise civil rights issues” with no further explanation.

Centers for Medicare & Medicaid Services (CMS) is a division of the Department of Health and Human Services (HHS). So is the Administration for Children and Families (ACF), which has recently called into question the Final Rule on collecting additional data on children in foster care, including important elements on ICWA and also LGBTQ+ kiddos.

Since the election, there have been articles describing VP Pence’s interest in HHS:

On Monday, President Donald Trump nominated Alex Azar, a former Indianapolis-based drug executive and longtime Pence supporter as Health and Human Services secretary. If confirmed, Azar would join an Indiana brain trust that already includes Centers for Medicare & Medicaid Services Administrator Seema Verma and Surgeon General Jerome Adams. Two of Verma’s top deputies — Medicaid director Brian Neale and deputy chief of staff Brady Brookes — are former Pence hands as well, as is HHS’ top spokesman, Matt Lloyd.

Finally, in late March, Texas, which had added two additional states as plaintiffs in the first amended complaint–Indiana and Louisiana–amended their complaint in Texas v. Zinke to include HHS and Secretary Azar as defendants in the ICWA lawsuit, where Count IV claims ICWA’s placement preferences violate the Equal Protection Clause of the Constitution.

 

 

 

Tribal Consultation on the Proposed AFCARS Changes

ilpc1 Comment

Here is the letter sent today: Tribal Consultation Notification 4-16-2018

This is on the proposed changes to the Adoption and Foster Care Analysis and Reporting System (AFCARS), the way the feds collect from the states on adoption and foster care. This is specifically about removing ICWA data elements added in last year’s final rule because of the burden of collecting information about ICWA compliance and Native kids in care.

Both consultations will be done by phone, and if there are not enough participants “may end early”. Maybe tribal leaders or their designees would like to consult about how to weigh that “burden” of gathering information so tribes and states know what is happening with Native kids in foster care for the full 90 minutes:

Tribal Consultation seeking input on the ANPRM and potential changes to AFCARS will be held through two teleconference calls on the following dates and times.

Tuesday, May 15, 2018 @ 2:00 pm – 3:30 pm (EDT).

Please register here: https://acf.adobeconnect.com/efdd2gqe733x/event/registration.html

Wednesday, May 16, 2018 @ 2:00 pm – 3:30 pm (EDT)

Please register here: https://acf.adobeconnect.com/enhysqrbcyal/event/registration.html

For both consultations, the call-in number and passcode are: 877-917-3403, Passcode: 2498350. (Please note, if there are a small number of participants on the call, the call may end sooner than 3:30 p.m.)

Both Tribal consultation teleconference calls are open to all tribal leaders or their designees and may address any aspect of the ANPRM’s request for comments on AFCARS data collection, including data elements relating to ICWA that would reported by states and all other AFCARS elements that would be reported by both states and tribes operating title IV-E programs. Overall, we are interested to hear both recommendations on data elements to retain with a justification for using the data at the national level and recommendations on any data elements to remove because they may be either overly burdensome for title IV-E agencies to report or may not be reliable or necessary at the national level.

In addition to participating in the tribal consultation conference calls, the Children’s Bureau encourages tribal leaders to submit comments in writing in response to the ANPRM, as only written comments may be included in the regulatory record. The deadline for the receipt of written comments in response to the ANPRM is June 13, 2018.

There is also a briefing webinar:

The briefing webinar to learn more about AFCARS will be held on Wednesday, April 25, 2018 from 2:00 pm – 3:30 pm (EDT). If you are interested in participating in this webinar, please register at:

https://acf.adobeconnect.com/afcars/event/event_info.html

Because:

We recognize that while states have many years of experience in reporting AFCARS data, tribes may not be as familiar with AFCARS. To prepare for consultation, the Children’s Bureau is offering a briefing webinar for tribal leaders and/or members of your staff. The briefing webinar will be an opportunity for tribal leaders and members of your staff to learn more about AFCARS, including current data reported by states since the 1990’s and the changes to AFCARS that were promulgated in December 2016, but have not yet been implemented.

If only well over 60 tribes and tribal organizations had submitted comments in support of the additional data elements explaining in great detail why they are needed in the last comment collection on this issue in 2016 . . .

A non-tribal specific information session/briefing webinar earlier this month was problematic on ICWA (at best). There are a number of groups working on written comments, including model versions for tribes. When they are available, we will make sure to post that information. If you’d like to post comments now, here is the comments page.

Previous posts on AFCARS here.

California ICWA Attorneys Pro Hac Waiver Proposal

Kate Fort

And the biggest ICWA state joins the movement! Comments on this are due June 8, 2018.

Here is the proposal to change the rules to waive associating with local counsel and remove the limit on the number of times appearing (fees are intact, but are being addressed in another forum–post on how to show support for that forthcoming).

Deadline for Comments: June 8, 2018 5:00 PM (Pacific)
Submit Comment Online or, email: invitations@jud.ca.gov

Here is our current ICWA attorney pro hac page. Contact me if you would like any draft model comments.

 

25th Annual ICWA Conference (California), June 4-6

Kate Fort

ICWA Conference - Save the Date

(Word is I’m speaking at this one.)

Update in Texas v. Zinke (federal ICWA case)

Kate Fort2 Comments

Here are the updated filings in the federal ICWA case in Texas:

The federal government filed a motion to dismiss, here.

But THEN, Plaintiffs filed (another) amended complaint–here.

It’s about 8 pages longer than the previous complaint, and adds the Department of Health and Human Services, the Secretary of the Department, and the United States as defendants. While the complaint still requests the court find all of ICWA unconstitutional and unenforceable, it also broadens the discussion beyond 1915 placement preferences to the collateral challenge provisions in 1913 and 1914. The complaint also still contends that certain provisions of IV-B and IV-E (parts of the Social Security Act) are not enforceable–those that purportedly link state compliance with ICWA to federal funding.

The feds will file another (slightly longer) motion to dismiss, and it will be here as soon as it is available.

However, the court has ALSO granted the tribal motion for intervention, available here.

Dismissal of the Watso v. Piper Case

Kate Fort

There have been a long series of federal cases in Minnesota involving tribal court child welfare jurisdiction over non-member children residing on the reservation (Watso, Nguyen). Most recently, Watso v. Piper was dismissed. The magistrate’s decision (that was upheld), is particularly well written.

Magistrate Report

Memorandum Opinion and Order

Watso v. Jacobson here

Americans for Tribal Court Equality here

Montana Supreme Court: State has Duty to Actively Determine if Child is Indian Child

Kate Fort3 Comments

Here.

In this case, as early as 2014, the State, through the Department, had reason to believe and, as asserted in its various petition averments and request for the District Court to proceed under ICWA, did believe that L.D. was an Indian child by affiliation with the Chippewa Cree Tribe. Though it gave due notice to the Tribe of the pendency of the initial foster care and subsequent parental rights termination proceedings, there is no evidence that the Department ever formally sought or received a conclusive tribal determination that L.D. was or was not eligible for tribal enrollment. Instead, the Department passively relied on the inaction of the Tribe and the assertions or beliefs of the parents that L.D. was not eligible for tribal membership. However otherwise reasonable, this passive reliance was insufficient to satisfy the Department’s ICWA burden to actively investigate further and ultimately make formal inquiry with the Tribe for a conclusive determination of L.D.’s membership eligibility.

Also, with briefing (a rarity in ICWA cases)!

DA 17-0419AppellantBrief

DA 17-0419AppelleeBrief

DA 17-0419ReplyBrief

In re B.B./R.K.B. v. E.T. Cert Denied

Kate Fort

This morning the Supreme Court denied cert in the Utah Supreme Court case establishing a federal standard of reasonableness for a putative father to acknowledge or establish paternity.

Case page here.

Order list here.

Unpublished QEW Opinion out of Texas Court of Appeals

Kate Fort

Here.

This is the second time recently a well-reasoned QEW case has been unreported, which means it can’t be used as precedent. The first was in Washington. In re K.S., 199 Wash.App. 1034 (2017). This one is out of the Texas Court of Appeals.

First, because I’ve been getting a lot of emails lately about foster parent issues, here are the witnesses who testified:

Only three witnesses testified at the termination hearing: S.P., R.C.P.’s foster parent, and Glendalys Mojica Gonzalez, the caseworker assigned to the case. The Department did not designate or proffer any of the witnesses as an expert, and the trial court did not make any rulings or findings regarding expert witnesses.

The Court then analyses the 2015 Guidelines (which it appears would have been governing this case since it was started in October 2016, i.e. initiated prior to December, 2016. 25 CFR 23.143) and concludes none of those people are QEWs.

The failure of the Department to produce the kind of competent evidence expressly required under the Act to support termination constitutes a failure of proof. See City of Keller,
168 S.W.3d at 812 (“[W]hen expert testimony is required, lay evidence . . . is legally insufficient.”); see also Martin v. State, 222 S.W.3d 532, 537 (Tex. App.—Houston [14th Dist.] 2007, pet. denied) (reversing involuntary-commitment order as unsupported by legally sufficient evidence where State
failed to introduce expert testimony as required by involuntary-commitment statute). Therefore, even viewing all of the evidence in the light most favorable to the verdict, because the record does not contain the statutorily required qualified-expert testimony, we conclude that the evidence is legally insufficient to meet the standard of proof under section 1912(f). See Jackson, 443 U.S. at 319; see also In re V.L.R., 507 S.W.3d at 796–97 (reversing judgment terminating parental rights because not supported by testimony of qualified expert witness as required under ICWA); Doty-Jabbaar, 19 S.W.3d at 877 (same).

Transfer to Tribal Court Case out of the Ohio Court of Appeals

Kate Fort

Here.

This is a procedurally complicated case, with a hostile GAL. The conclusion of the appellate court is disappointing:

It is not for this court to decide where and with whom C.J., Jr. should live. However, we have been asked to decide the legal question of who should make the custody determination concerning this child. Based on the foregoing, that decision should be made by the Ohio court after a full evidentiary hearing taking into account the best interests of C.J., Jr., any competing interests of the other parties to this litigation, and the full participation of GRIC. Whether the trauma that might result from removing C.J., Jr. from the only home he has known since he was two years old should outweigh the interest of GRIC in having him transported across the country and raised as part of the GRIC must be determined with all the wisdom, compassion, and experience of the juvenile court.

This article has quotes from the tribal attorney in the case.