ICWA – Page 47 – Turtle Talk

Big case out of Michigan’s Court of Appeals on an adoption with a very complicated fact pattern. The case was argued by MSU Law/ILPC alum Karrie Wichtman. The case held that MIFPA’s placement preferences in an adoption hold, even while ICWA’s failed under Adoptive Couple. It should also be noted that this was the analysis Jack Trope & Addie Smith followed in their article on Adoptive Couple and state ICWA laws.

MIFPA differs from ICWA in that it does not give a preference to eligible parties over ineligible parties. Rather, MIFPA requires that, absent good cause, the adoptive placement must be either with a member of the child’s extended family, a member of the Indian child’s tribe, or an Indian family, in that “order of preference.” MCL 712B.23(2). The record demonstrates that the Arbutantes have no familial connection to KMN; they are not connected to the Tribe, and they are not an Indian family. Therefore, absent a good cause finding, MIFPA precluded the trial court from placing KMN with the Arbutantes.

Unfortunately, the COA did not reinstate the abuse and neglect petition that started the case in the first place, leaving the child in legal limbo.

Reported California COA Opinion Reverses Termination of Parental Rights for Violation of ICWA

February 25, 2015February 25, 2015Matthew L.M. Fletcher

Ventura County Human Services Agency initially told the juvenile court that ICWA doesn’t apply to Alaska Natives (or, as stated in the opinion, “Eskimo families”).

Here is the opinion in In re H.G.:

In re HG — B255712

The UPDATED BIA ICWA Guidelines

February 24, 2015February 25, 2015Kate Fort2 Comments

Updated Guidelines!

From the website here. Press release here.

The new Guidelines, not updated since 1979, look really good. For example, there are fifteen examples of active efforts, which are explicitly separated out from ASFA findings. There is some clear language around determining putative fathers. They clarified 1922’s emergency removal provisions. They took out the “advanced stage of the proceedings” exception for transfer to tribal court. And quoting now,

There is no exception to the application of ICWA based on the so-called “existing Indian family doctrine.”

Thank you to everyone for all of the work on this. This is huge.

Also, thanks to C.N. for the heads up.

Additional Call-in For Tribes on AFCARS Proposed Rules

February 23, 2015February 22, 2015Kate Fort

If you missed Friday’s call, here is another opportunity to call in. In addition, the government is taking written comments on the rule changes through April 10. This is a chance to get the federal government to add ICWA-related reporting requirements to AFCARS, which applies to states and some tribes. By adding ICWA reporting requirements, the federal government has the opportunity to force states to better track ICWA compliance.

Colleagues:

As we announced earlier this week, the Children’s Bureau will hold national informational calls with stakeholders, states and tribal representatives on the Notice of Proposed Rule Making (NPRM) on the Adoption and Foster Care Analysis and Reporting System (AFCARS) that was published in the Federal Register on Monday, February 9, 2015.

The first call with states and stakeholders was held on Wednesday, February 18^th. The second call for states and stakeholders will take place on Friday, February 20, 2015 from 1:00-2:00 p.m. Eastern.

We are pleased to announce that we have added a second informational call for tribal representatives. The two informational calls with tribal representatives will take place on Friday, February 20, 2015 from 3:00-4:00 p.m. Eastern and Wednesday, March 4, 2015 from 3:00-4:00 p.m. Eastern.

Attached is the presentation that we use during the calls. This presentation is the same for all calls and will be available on the Children’s Bureau website shortly. The agendas with updated call-in information are attached. The content of the agendas has not changed.

This is a reminder that these calls provide an overview of the NPRM for informational purposes only. We will not take questions during any of the calls. If you wish to comment on the NPRM, please submit comments to www.regulations.gov on or before April 10, 2015. The text of the NPRM can be found here: http://www.gpo.gov/fdsys/pkg/FR-2015-02-09/pdf/2015-02354.pdf

Please forward this information to interested parties.

ICWA Notice Case Out of New Jersey

February 23, 2015February 23, 2015Kate Fort

Here.

To minimize the delay in securing permanency and stability for Ann, the trial court shall ensure that the notices are sent forthwith. The judgment terminating parental rights shall be deemed affirmed if after being served with the requisite notices under the ICWA: (1) no tribe responds to the notices within the time provided under the ICWA; (2) no tribe determines within the time allotted under the ICWA that Ann is an Indian child as defined by the ICWA; or (3) the court determines, after the tribes have been given an opportunity to intervene, that the ICWA does not to apply to this matter. If Ann is determined to be an Indian child under the ICWA, the judgment terminating parental rights shall be vacated and the trial court shall hold further proceedings consistent with the ICWA. All proceedings shall be conducted as expeditiously as practicable in accordance with the overarching goal of attaining permanency for Ann.

Call for Tribes on Changes to Adoption and Foster Care Analysis and Reporting Systems

February 18, 2015Kate Fort

Call in information and agenda here.

This is an information session [for tribes] for the Children’s Bureau to provide an overview/summary of the Adoption and Foster Care Analysis and Reporting System (AFCARS) Notice of Proposed Rulemaking (NPRM), which was published in the Federal Register on February 9, 2015

From NICWA’s press release:

A Notice of Proposed Rule Making on AFCARS was published in the Federal Register on Monday, February 9, 2015, announcing that ACF intends to change some of the AFCARS reporting requirements. The full text of this Notice of Proposed Rule Making and proposed changes can be found here and an overview is available here.

Currently, there is no requirement for states to report data related to the Indian Child Welfare Act (ICWA) as a part of AFCARS. In addition, AFCARS does not require states to identify children in their care who are eligible for ICWA’s protections. Without this data there is no national information about how and when ICWA is followed in state child welfare systems

NICWA Conference: Workshops for Legal Professionals

February 18, 2015Kate Fort

The National Indian Child Welfare Association’s (NICWA) 33^rd Annual Conference: Protecting Our Children National American Indian Conference on Child Abuse and Neglect features a wide range of workshops for legal professionals looking to expand their knowledge of ICWA, including Looking Forward: Policy and Practice to Protect Against the Adoptive Couple v. Baby Girl Decision and many others.

There will also be a legal professionals coffee hour sponsored by ILPC and TICA, on Monday, April 20^th at 5:30 pm. NICWA’s own ICWA expert Addie Smith, Kate Fort from the ILPC, and other leaders in the field of federal Indian law will be in attendance. Come and see us!

Agenda is here.

Montana Supreme Court ICWA Case

February 16, 2015February 17, 2015Kate Fort

Here.

We conclude that Mother received fundamentally fair procedures prior to the termination of her parental rights. She never raised any objection to the lack of a formal adjudicatory hearing, and her stipulations reflect her assent to the determination that H.T. was abused or neglected. The child’s Tribe was notified of the proceedings at the early stages, indicated its desire to monitor the case, and did not participate after it received appropriate, timely notice of the termination hearing. Proper expert testimony was presented at the termination hearing. Because the District Court applied the wrong statutory standards in its final order, however, its judgment is vacated. We remand for entry of a new order on
the issue whether Mother’s parental rights should be terminated.

National Council for Adoption ICWA Webinar

January 15, 2015Kate Fort2 Comments

Here. Addie Smith of NICWA will be doing the presentation, which is a very good thing.

via A.H.

Contested ICWA Adoption Case out of Alaska Supreme Court

December 27, 2014December 27, 2014Kate Fort2 Comments

Here.

An example of how state law is going to determine how potential Baby Girl cases are decided:

A married couple sought to adopt an Indian child over the objection of the biological father, who wished to maintain visitation rights. The couple and the biological mother appeal the superior court’s denial of the adoption, claiming that the biological father’s consent to the adoption was unnecessary. Under AS 25.23.050(a)(2)(B), the consent of a noncustodial parent is not required for adoption if that parent unjustifiably fails to support the child. But the superior court did not clearly err by concluding that the biological father had justifiable cause for his failure to support the child. We affirm.