ICWA

Two Unpublished Michigan Court of Appeals Child Welfare Opinions

Kate Fort

Here.

This case was a conditional reversal for ICWA notice violations.

Here.

This case is not an ICWA case (father claimed Tuscarora but neither he nor child were eligible). There’s a lot going on in this case, especially given the medical concerns of the child. However, there are two reasons I post it: the first is the exchange between father and the referee when father wants to wait to have an attorney present– on page 3. The second is the reason the maternal grandmother was denied placement, detailed on page 4.

Attorney General Holder Announces ICWA Initiative

Kate Fort2 Comments

From the text of his speech:

Today, I am pleased to announce that the Department of Justice is launching a new initiative to promote compliance with the Indian Child Welfare Act.  Under this important effort, we are working to actively identify state-court cases where the United States can file briefs opposing the unnecessary and illegal removal of Indian children from their families and their tribal communities.  We are partnering with the Departments of the Interior and Health and Human Services to make sure that all the tools available to the federal government are used to promote compliance with this important law.  And we will join with those departments, and with tribes and Indian child-welfare organizations across the country, to explore training for state judges and agencies; to promote tribes’ authority to make placement decisions affecting tribal children; to gather information about where the Indian Child Welfare Act is being systematically violated; and to take appropriate, targeted action to ensure that the next generation of great tribal leaders can grow up in homes that are not only safe and loving, but also suffused with the proud traditions of Indian cultures. Ultimately, these children – and all those of future generations -represent the single greatest promise of our partnership, because they will reap the benefits of our ongoing work for change.  In the last six years, we have worked together in a shared effort to end misunderstanding and mistreatment, and to bring about a triumph of vision over the status quo; of ingenuity over incapacity; and of progress over stagnation.  We have laid an enduring foundation as we strive to empower vulnerable individuals, and give them the tools they need not to leave their communities, but to bolster them; not to abandon their ways of life, but to strengthen them.

Of course, there are many more challenges still before us.  And we’ve seen all too clearly that the barriers erected over centuries of discrimination will not be surmounted overnight.  But we face a brighter future today because we have placed our faith not in conflict or division, but in cooperation and respect; in the understanding that, though we live in different cultures, with different traditions, we share the same values.  We believe that sovereign nations have the right to protect their citizens from harm, and that no perpetrator of domestic violence should be granted immunity because of the color of his skin.

We understand that promises of autonomy have meaning, and should not be overturned through the changing desires of different federal Administrations.  And we recognize that any child in Indian Country – in Oklahoma, or Montana, or New Mexico – is not fundamentally different from an African-American kid growing up in New York City.  And neither child should be forced to choose between their cultural heritage and their well-being.

Two Additional Unpublished Notice Cases out of California

Kate Fort1 Comment

Apparently this is the week for notice cases with particular cause for posting.

Here. While the court in this case remands for notice violations in a guardianship case, it sadly does not also hold that Wikipedia is not a solid source for determining whether a tribe is federally recognized or not.

Here. And in this case, the appellate court wrote:

We begin with a concern not addressed by either party. California Rule of Court, rule 5.481(b) mandates that in asection 300 proceeding, the social services agency must send a “Notice of Child Custody Proceeding for Indian Child.” This form is designated ICWA–030. The ICWA–030 form sent by the Bureau here, however, differs from the ICWA–030 form available on the Judicial Council website.7 Significantly, that ICWA–030 form, which consists of 10 pages, requests identifying information on the biological mother (section 5c), the mother’s biological mother (section 5c), and the mother’s biological grandmother (section 5d).8 The ICWA–030 used by the Bureau, which was 12 pages, appears at first glance to be the same, but upon closer examination materially differs. It requests information on the biological mother (section 5c) and the mother’s biological mother (section 5c), but it then skips to the mother’s biological great grandmother and great, great grandmother (section 5d). Nowhere does it contain a section for information on the mother’s biological grandmother.9 By using what may be a faulty ICWA–030, the Bureau completely omitted all information on R.K.’s grandmother—Robin’s great grandmother.10
*6 Additionally, although the ICWA–030 requested information regarding R.K.’s mother, the Bureau omitted all information for her, stating “No information available” for every single category, including her name. This is, quite simply, inexplicable. At the very least, we can only assume that an inquiry of R.K. would have revealed her mother’s name and, quite likely, additional information called for by the notice. But it is also probable that the Bureau could have obtained the information from R.K.’s mother herself. At the outset of the dependency proceeding, R.K. informed the social worker that her mother was involved in her own dependency proceeding. Additionally, R.K.’s mother was present at the June 5, 2013, 12–month review hearing, as evidenced by the reporter’s transcript from the hearing. At one point, the court interrupted the proceeding to ask audience members to identify themselves, and one person responded, “I’m the mother of [R.K.]” Both of these circumstances suggest that R.K.’s mother was accessible had the Bureau made an effort to speak with her. Additionally, the Bureau omitted the current and former addresses and the place and date of birth for R.K.’s great, great grandmother.

Published (!) Notice Case out of Illinois

Kate Fort1 Comment

Here.

A long, complicated, aggravating notice case from the Illinois court of appeals.

Unpublished Notice Case Out of Michigan

Kate Fort1 Comment

Here.

In this case, the Kalamazoo court did not make an inquiry on the record.

Respondent accurately notes that the circuit court failed to make the required inquiry on the record. However, respondent suffered no prejudice as a result. There is no record evidence to support that the child had any Native American heritage.

Unpublished Notice Case Out of California

Kate Fort

Here.

In one line, this case summarizes why the Department’s failure to do notice properly harms kids and families:

[Infant]’s adjudication hearing was initially set for October 2013 but was continued approximately five months (due to the Department’s failure to properly serve notice under the ICWA) during which time the infant remained out of mother’s care.

And, for the record, in this case, “mother and maternal relatives had tribal enrollment numbers, and mother claimed father had Cherokee heritage. None of the ICWA notices sent reflected all of this information.”

ICWA and MIFPA Training in Macomb County

ilpc1 Comment

Today we did a (long) lunch session on ICWA and MIFPA for state court personnel in Macomb County. Thanks to the Macomb criminal and juvenile law committees for inviting us.

Kate Fort, Michelene Eberhard (chair of the criminal law committee), and Maribeth Preston from SCAO.

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Unpublished Michigan Ineffective Assistance of Counsel ICWA Case

Kate Fort1 Comment

Here.

Respondent-father appeals as of right from the trial court’s order terminating his parental rights to his child pursuant to MCL 712A.19b(3)(c)(ii) (other conditions exist that cause the
child to come within the court’s jurisdiction), (3)(g) (failure to provideproper care or custody), and (3)(j) (reasonable likelihood of harm). For the reasons set forth in this opinion, we affirm in part but remand this matter to the trial court to consider whether to conduct a Ginther hearing or to resolve the issues set forth herein by making a determination as to whether trial counsel was ineffective such that there exists a reasonable
probability that, but for counsel’s unprofessional errors, the result would have been different.

Unpublished Illinois ICWA Case on Termination Standard

Kate Fort

Here. Fairly long case to be unpublished, and odd reading for an ICWA case–separating out the language of “beyond a reasonable doubt” from the additional standard that “continued custody of the child by the parent . . . is likely to result in emotional or physical damage to the child.” Rather, the court held:

 The conduct by both parents shows the absence of concern, interest, and responsibility as to their children under both the clear-and-convincing and reasonable-doubt standards.

Alaska Legal Services Corp: Job Posting for Fairbanks Native Law Staff Attorney

Kate Fort

Here.

Fairbanks Native Law Staff Attorney – Alaska Legal Services Corporation is seeking a full-time staff attorney for its Fairbanks office to provide legal services to Tanana Chief Conference member Tribes and tribal members. This position primarily involves representation of individual and tribal clients in proceedings related to the Indian Child Welfare Act, as well as litigating other Native law matters on behalf of TCC Tribes and tribal members. Travel to both rural and urban areas may be required. Click here for full job description.