ICWA

Déjà vu All Over Again: AFCARS Comments Needed

Kate Fort

Here is the advanced notice of proposed rulemaking where HHS is reopening the FINAL RULE adopting new data elements on kids in foster care, including ones on ICWA.  Comments on how yes, really, we really do want ICWA data, just like we said the last two times are now due June 13.

Oh also, there’s another notice where HHS is proposing to delay implementation of the Final Rule for two more years. Those comments on that are due April 16.

 

Honestly, just reading the notices is infuriating–the Administration admits the final rule was the culmination of not one, but two separate notice and comment periods, plus a supplemental notice and comment period. This Administration, though, has identified this rule as one where the benefits might outweigh the costs. They have a few identified questions for comment, though it is pretty clear the Administration is seeking comments to support their contention the additional data elements would be too much work for agencies to collect.

I’m sure there will be additional posts on this in the near future.

Colorado Court of Appeals ICWA Notice Case

Kate Fort

Here.

The 2016 Guidelines recommend that if only the tribal ancestral group is indicated, then the Department should notify each of the tribes in that ancestral group to identify whether the parent or child is a member of any such tribe. 2016 Guidelines at 18. Thus, because ICWA’s intent is to provide notice to tribes so that the tribes themselves can decide whether children are tribal members, see B.H., 138 P.3d at 303-04, when a parent is unable to provide detailed information on potential tribal affiliations, the Department should provide notice to all identified tribes and the tribes that have been historically affiliated with those identified tribes, see Tribal Agents by Affiliation, https://perma.cc/K3DDKQR5.

ICWA Case Out of Alaska Supreme Court

Kate Fort

Here.

Parents appeal from a superior court’s order that the Office of Children’s Services (OCS) had satisfied the Indian Child Welfare Act’s (ICWA) requirements authorizing the removal of their daughter, an Indian child, from their custody. Because
the court relied on information that was not in evidence to make the required ICWA removal findings, we vacate the order authorizing removal.

Bill to Allow Tribes Access to Information Needed for Active Efforts in Passes in Michigan

Kate Fort

Here is SB 616.

Here is the press release.

Here is some news coverage.

This bill was driven entirely by the tribes in Michigan–especially the in-house ICWA attorneys and tribal social workers who have been expressing concern with not getting enough information to ensure a family is receiving active efforts prior to a foster care placement.

Supreme Court Cert Stage Briefing in R.K.B. v. E.T.

Kate Fort

As a reminder, this is the cert petition regarding the very long Utah Supreme Court decision which held there is a federal reasonableness standard for determining whether an unwed father is a parent under ICWA. That decision is here.

Another reminder–there are generally no cert stage amicus briefs filed in opposition to a cert petition. And a cert petition is just asking the Supreme Court to take the case. It doesn’t mean the Court has taken the case.

RKB Petition for Certiorari

R.K.B. NCFA Amicus ISO Cert Final

R.K.B. v. E.T. FINAL AMICUS BRIEF AAAA

Amicus Brief- Utah Adoption Council

Amicus Curiae Brief Goldwater

R.K.B v. E.T. Brief in Opposition

Eighth Circuit Oglala Sioux ICWA Case Oral Arguments

Kate Fort

Here.

News coverage here.

Law360 on ICWA and Recent Legal Challenges

Kate Fort

Here.

Fort says that a spate of suits involving the Goldwater Institute, while so far unsuccessful in winning a hearing by the U.S. Supreme Court, are diverting tribes’ resources into lawsuits and rehashing old arguments about the constitutionality of the law and the right of tribes to govern their members.

“I don’t think that any of that is to the benefit of American Indian kids or families,” Fort said.

Briefing Completed in Michigan Indian Family Preservation Act Case

Kate Fort1 Comment

At the Michigan Supreme Court:

Order Granting Review

Appellant (Father)’s Brief

Appellee (Macomb County/State)’s Brief

Sault Tribe Amicus Brief (MSU Indian Law Clinic, ICWA Appellate Project co-wrote this brief)

American Indian Law Section_AmicusBrief

Appellant Reply

Oral Argument Scheduling Order

Colorado Court of Appeals Case on Inquiry for ICWA

Kate Fort1 Comment

Here

This is a special one:

 In this case, the trial court first inquired about the applicability of ICWA at a termination hearing regarding J.A. after orally ordering termination of parental rights. For purposes of ICWA, this was the second child-custody proceeding involving J.A. Under 25 C.F.R. § 23.107(a), the trial court should have made that inquiry at the first hearing after the petition in dependency and neglect was filed and again at the start of the termination proceeding.

(emphasis in original)

It continues:

The Department asserts that mother did not provide a relative affidavit identifying her biological parents. It is true that the Department should try to provide sufficient information for the tribe to make the determination as to whether the child is a member or eligible for membership. L.L., ¶ 37. But the lack of complete information does not relieve the Department of its duty to send notice with the information it has. Accord 25 C.F.R. § 23.111(d)(3) (notice shall include direct lineal ancestors if known). Thus, we must remand the case to the trial court so the Department may comply with the notice requirements of ICWA.

At the termination hearing, mother’s counsel stated that he had spoken with mother’s adoptive family and determined that “the ICWA relationship that [mother] had brought to the [c]ourt’s attention was not viable.” But he did not elaborate, so we don’t know the basis for his representation. Moreover, it was for the Kiowa and Pueblo of Taos tribes, not mother’s adoptive family, to determine whether the children were members or eligible for membership.

(Emphasis added).

The Court of Appeals remanded the case, focusing on the Guidelines and Regulations:

We recognize that the 2015 Guidelines, unlike the regulations promulgated in 2016, were not binding on the trial court. But, as recognized by both the 2015 Guidelines and the 2016 Guidelines, early identification of ICWA applicability promotes proper implementation of ICWA at an early stage, protects the rights of Indian children and their families, prevents delays, and avoids sometimes tragic consequences. See 2016 Guidelines at 11; 80 Fed. Reg. at 10,148.

Regardless, as discussed above, the termination proceeding was subject to the 2016 Guidelines and regulations. And, more importantly, the Department failed to send notice to the appropriate tribes when mother identified a reason to believe the children were Indian children. Under these circumstances, the record does not support the trial court’s finding that ICWA does not apply.

(Emphasis added, if we had a nickel for every time any ICWA trainer said that, etc.)

Comments Open for Arizona ICWA Practitioner Pro Hac Vice Rule

Kate Fort3 Comments

UPDATED POST HERE.

The Arizona tribal-state judicial forum has submitted a proposed rule change to allow out of state ICWA practitioners to enter into cases without having to associate with local counsel or pay a fee. This proposed rule has a few more requirements than other similar state rules or proposals.

For example, can an Arizona practitioner tell us what this is or looks like in practice:

“(j) Completion of Course on Arizona Law. Before being admitted to the practice of law in Arizona, Arizona uniform bar examination applicants, applicants for admission by transfer of uniform bar examination score, and applicants for admission upon motion must complete a course on Arizona law, the content and delivery of which shall be approved by the Supreme Court.”

Rule 34(j)

The proposed rule (Rule 38 (2)(C)(iv)) requires the completion of this course before being able to use the pro hac vice exception in an ICWA case. The standard pro hac vice admission rule does not include this requirement (Rule 39), but it is required of those looking to be admitted to the state bar (Rule 34). It would be useful to know if this course is something like a formal semester long class (and therefore renders the rule change less useful for the immediacy of an ICWA/child dependency preceding), or is an afternoon course available online, for example.

Comments must be made by May 21, and you must register with the Arizona courts to submit them online. The proposed rule change page here. Updates on this and other state pro hac vice rules are here. If we receive any information on what the required course entails, we will do another post.