ICWA

Utah Court of Appeals ICWA Active Efforts Case

Kate Fort

Here.

Contrary to Father’s assertions, the testimony of the
ICWA expert witness from the Navajo tribe does not undermine
the juvenile court’s determination that further services directed
to Father would be futile. The ICWA expert witness testified that
she tried to contact Father toward the beginning of the case, but
that his number was out of service. She also testified that Father
was in need of services to address parenting, substance abuse,
and domestic violence issues, and that he was not ready to take
custody without those services. With regard to the active efforts
requirement, the expert testified that she ‚would like to see a
little more effort by‛ DCFS, but that Father ‚needed to stay in
contact with‛ DCFS.

Lead Litigation Attorney for Goldwater Institute Appointed to Arizona Supreme Court

Kate Fort

Here.

Bolick currently represents some non-Indian parents who are suing to overturn the federal Indian Child Welfare Act which requires require state courts when placing Indian children for adoption to give preference to a member of the child’s extended family. That is followed by priority by other members of the child’s tribe and, ultimately, other Indian families. Bolick also named DCS as a defendant because it follows that policy.

Lawsuit documents here, as always.

2015 ICWA Appellate Cases by the Numbers

Kate Fort4 Comments

While a few cases might yet come in, we have our final list of 2015 appealed ICWA cases sorted. A note on the data–these are cases that are on Westlaw, and mentioned ICWA. If you know we are missing a case based on the numbers, *please* let me know so we can add it. We collect the case name, the date, the court, the state, whether the case is reported or not, the top two issues, up to three named tribes, the outcome of the case, and who appealed the case. These are standard state court ICWA cases, and do not include any of the ongoing federal litigation.

There were 201 ICWA cases in 2015. 35 of them were reported. As usual, California has the most number of cases, with 156 (146 unreported).The next highest state was Michigan, with 7 cases (3 unreported), Alaska with 6 (3 unreported), Arizona with 5 (4 unreported). The rest, with 2 reported are Idaho, Nebraska, New Mexico, and Washington.

With 1 reported are Alabama, Arkansas, Montana, New Jersey, New York, North Dakota, Ohio, Texas, and Wyoming.

California further breaks down with the highest number of cases (57) in the 2nd Appellate District (which includes L.A. County), followed by 33 in the 4th, 29 in the 1st, 16 in the 3rd, 15 in the 5th, and 6 in the 6th. Only the 2nd and 4th reported out any cases.

Supreme Courts in Alaska, Idaho, Montana, Nebraska, North Dakota, and Wyoming all heard ICWA cases. 98 of the 201 total cases were affirmed, 82 remanded (nearly all California notice cases), 5 dismissed, and 16 reversed.

The top issues in reported cases break down as follows: Notice (13), Determination of Indian Child (5), Active Efforts (4), Qualified Expert Witness (4), and Placement Preferences (3), Inquiry (1), Transfer to Tribal Court (1).

70 different tribes were represented in the cases, which include any time a parent claims tribal affiliation of any sort (so Cherokee has 58 of the 203 total cases as first tribe claimed, 21 as second tribe claimed and 5 as third, for a total of 84). In 31 cases, the tribe was unknown, in 4 the tribe was unnamed by the court. For those 31, 25 of the cases dealt with a lack of inquiry and/or notice.

Finally, of the 35 reported cases, mother appealed 15, father 10, both parents 4, tribe 4, and GAL 1.

Active Efforts and Burden of Proof ICWA Case out of NM Court of Appeals

Kate Fort2 Comments

Here.

The court held that the burden for active efforts is clear and convincing evidence. In addition, that active efforts consists of more than reasonable efforts, citing to the 2015 Guidelines and other state court decisions. In this case, the court held there was not clear and convincing evidence that the state provided active efforts:

The testimony at the TPR demonstrates that the Department took the affirmative steps of meeting with Father to create a treatment plan, and referring Father to a parenting class. It appears the Department pointed Father in the direction of service providers, but did little else to assist Father in implementing the treatment plan. Father was not offered services aside from the one parenting class. The Department took a passive role by shouldering Father with the burden of not only independently locating and obtaining services, but also ensuring the service providers were communicating with the Department about his progress.

Two Recent ICWA Related Reports

Kate Fort

Children’s Bureau (part of the U.S. Dept of Health and Human Services, Administration for Children and Families) Report analyzing the Child and Family Service Plans (CFSP) for tribal-state consultation and collaboration on ICWA compliance.

Link.

PDF(nearly 300 pages).

(I’m going to note that while the CFSPs are required by the Feds for funding, the states self-report the information in the CFSPs. Whether tribes would agree with what the states reported, or whether what they reported would be considered “consultation,” is not addressed in this report.

It might be worth it for tribes to review this report or their state’s individual CFSP [which are usually available online] to see what they say, and perhaps let the Children’s Bureau know if the tribe disagrees. This is one of the few areas where federal funding is remotely tied to ICWA compliance. In case you’re wondering, here is what the federal Administration for Children and Families considers consultation. ACF Consultation Policy )

Casey Family Programs Oklahoma Case File Review report.

Unpublished Active Efforts Case out of California

Kate Fort

Here.

Though unpublished, this case addresses many of the issues surrounding active efforts, standards of evidence, 2015 Guidelines, and much of the frustration in child welfare.

For example, this is not active efforts:

Before the jurisdiction and disposition hearing, the Agency’s social worker, Sara Whitney, met with Amber while in custody at Las Colinas Detention and Reentry Facility. The social worker discussed services available to Amber as a member of a Native American tribe and provided contact information for specific service providers.

Nor is this:

Shortly thereafter, Whitney spoke with the parenting coordinator at one of Southern Indian Health’s partners, who indicated she would follow up with Amber to help her obtain counseling. Whitney then followed up with Amber and provided her with contact information for the parenting coordinator, as well as additional referrals for residential drug treatment services.

This case also highlights the way each state manages to remove children using just different enough procedures:

This case highlights a gap between federal law and the manner in which California’s dependency proceedings are conducted. “[B]ecause the ‘ “critical decision[s] regarding parental rights … [and] that the minor cannot be returned home” ‘ [are] made at the earlier review hearing, the issues at the section 366.26 hearing are generally limited to the questions whether the child is adoptable and whether there is a statutory exception to adoption.” (In re Matthew Z. (2000) 80 Cal.App.4th 545, 552–553.) “[U]nlike the termination hearings in most states, the purpose of the final termination hearing in California ‘is not to accumulate further evidence of parental unfitness and danger to the child, but to begin the task of finding the child a permanent alternative family placement.’ “ (Ibid.)

to make implementing federal standards incredibly difficult, because of the state-by-state, and case-by-case, determinations in our dependency courts:

Amber concedes, however, that the new BIA Guidelines are “consistent with statutes and Rules of Court from this State” and also recognizes that the Guidelines are not binding authority. As we recently held “[e]ven in light of the new guidelines information, the general principle still applies[ ] that ‘[t]he adequacy of reunification plans and the reasonable of [the Agency’s] efforts are judged according to the circumstances of each case.’ “ (A.C., 239 Cal.App.4th at p. 657.)

Stephen Pevar Speaking on Oglala Sioux v. Van Hunnik at the Michigan SCAO Training on MIFPA/ICWA

Image Kate Fort

IMG_6670

DOJ Wins Motion to Dismiss in NCFA v. Jewell (2015 Guidelines Litigation)

Kate Fort4 Comments

This is a big win–the Judge dismissed all claims, including the equal protection and substantive due process ones. In addition, there’s good language for the eventual ICWA regulations.

Here is the order.

This Court GRANTS Defendants’ Motion to Dismiss For Lack of Subject-Matter Jurisdiction and for Judgement on the Pleadings because: (1) Plaintiffs’ claims are precluded by this Court’s October 20, 2015 Memorandum Opinion in which the Court held that Plaintiffs lack standing to challenge the Guidelines, that the Guidelines are not justiciable as a “final agency action,” and that the Guidelines are non-binding interpretive rules; (2) BAF has not demonstrated any authority to support its equal protection, due process, or Indian Commerce Clause claims; (3) the 2015 Guidelines do not commandeer state entities; and (4) BAF has failed to plead a Bivens action.

(emphasis added)

And:

…even if the 2015 Guidelines were legislative rules, rather than interpretive guidelines that do not mandate state court compliance, the 2015 Guidelines still would not commandeer state entities to comply with its regulations… Just as Congress may pass laws enforceable in state courts, Congress may direct state judges to enforce those laws.

As a personal side note, there so many great people who have worked on this litigation since it was filed in May, and they all deserve thanks.

Update on Goldwater (ICWA Challenge) Filings

Kate Fort

DOJ filed their reply to Plaintiffs response on Defendants’ motions to dismiss. Arizona also filed a strong reply. Filing is completed in this matter, and a hearing on the motion to dismiss will be held on December 18th.

Plaintiffs filed a response to the amicus briefs from Casey Family Programs et al and NCAI et al. In addition, Citizens Equal Rights Alliance also filed an amicus brief in support of the Plaintiffs’ motion to certify the class.

The ICWA Legal Defense Memo has been updated and is available here.

Op-Ed On ICWA from Reps. Cole & McCollum

Kate Fort

From The Hill Congress Blog:

Prior to the passage of the Indian Child Welfare Act (ICWA) in 1978, it had become apparent that Native American children were systematically being taken from their homes and either put up for adoption or placed in foster care. The rate at which Native American children were taken was especially alarming to tribal nations that depend on their youth to preserve a truly unique heritage. Further, the disproportionate rate of these separations raised suspicions that they were based less in decisions about the well-being of children and perhaps more about separating youth from their tribal culture. In a repeat of the forced boarding school era, tribal nations were once again being told that to save their children, they had to be removed from their communities and cultures.