ICWA – Page 49 – Turtle Talk

NICWA Job Posting: ICWA Legal Advisor

November 18, 2014Kate Fort

The National Indian Child Welfare Association (NICWA) in Portland, Oregon, is recruiting for a full-time ICWA legal advisor. The ICWA legal advisor at NICWA is responsible for managing the dissemination of information relating to Indian child welfare to the general public and to NICWA membership. NICWA offers a generous benefit package. The position is open until December 5.

Nebraska Supreme Court ICWA Decision on Active Efforts

November 17, 2014Kate Fort1 Comment

Here.

As covered on Friday by NICWA and others, the Nebraska Supreme Court ruled on the active efforts standard. Specifically,

The sole issue presented is whether the active efforts standard of 25 U.S.C. § 1912(d) of the federal Indian Child Welfare Act of 1978 (ICWA)1 and § 43-1505(4) of the Nebraska Indian Child Welfare Act (NICWA) applies when a juvenile court physically places an Indian child with his or her parent but awards another entity legal custody of the Indian child. The question is whether this disposition in an involuntary juvenile proceeding is “seeking to effect a foster care placement” within the meaning of ICWA/NICWA. Upon further review, we agree with the Nebraska Court of Appeals and hold that at any point in an involuntary juvenile proceeding involving an Indian child at which a party is required to demonstrate its efforts to reunify or prevent the breakup of the family, the active efforts standard applies in place of the reasonable efforts standard applicable in cases involving non- Indian children.

MIFPA/ICWA Expert Witness and Active Efforts Case out of Michigan COA

October 24, 2014October 24, 2014Kate Fort1 Comment

Here.

The court conditionally reversed the trial court because of a lack of proper expert witness testimony (citing ICWA, MIFPA and the Guidelines). It also finds that the agency made active efforts–even if there was no testimony for each element in the MIFPA definition of active efforts.

Interestingly, this case also addresses what child protective orders may be appealed (or not) in Michigan, and advises the Michigan Supreme Court to revise the Michigan Court Rules to allow for an appeal of right of a removal of a child:

We also suggest that the Supreme Court consider modifying MCR 3.993 in order to permit a parental appeal of right, at least under some circumstances, from removal order when a child is removed from his or her parents at a stage prior to adjudication. Where a parent’s action or neglect threatens a child’s safety sufficient to justify removal at the outset of a child protective proceeding, it is neither surprising nor objectionable that such removal would correlate with a higher likelihood of termination. However, as several recent cases have shown, the decision to remove a child can substantially affect the balance of the child protective proceedings even where the initial concerns are eventually determined to have been overstated.

In such cases, the parent may find his or her parental rights terminated not because of neglect or abuse, but because of (1) a failure to adequately comply with the Department’s directives and programs and (2) a loss of bonding due to a lack of parental visitation.

Unpublished Expert Witness Case out of Nebraska

October 23, 2014Kate Fort

Here.

In this case, the State called Patterson to testify that returning Eyllan to Nathaniel’s care was likely to result in serious emotional or physical damage to him. Patterson is currently employed as a school psychologist. Her educational background includes an education specialist degree and a bachelor’s degree in social work. Previous to her current employment position, she has worked as a social worker who specialized in and worked exclusively with Native American families. As a part of this employment, she provided expert testimony in NICWA cases, developed activities for children living outside of their tribe to maintain “cultural connectiveness,” and worked with tribes to facilitate enrollment of Indian children. In addition,Patterson has experience providing parental supervision, parenting education, and in-home counseling for Native American families. Patterson testified that she continues to have knowledge of “the prevailing social and cultural standard for rearing children within the Native American community.” She also indicated that she has experience with the Sioux Tribe, which is the tribe in which Eyllan is eligible for enrollment.

One side note–the Nebraska Court of Appeals only cites to the Nebraska ICWA rather than the federal ICWA (they do also cite to the BIA Guidelines via an NE Supreme Court case). Without reading through the whole statute, the state version does appear to essentially mirror the federal one. However, this week I had a conversation about how important it turned out to be for Michigan, specifically regarding investment in state education and state training on ICWA issues, to have a state ICWA law passed. Cases like this reinforce that belief.

Unpublished Notice Case out of California

October 8, 2014October 8, 2014Kate Fort

We don’t post all of the unpublished ICWA notice cases, but they are obviously still out there. An appellate court cannot determine if ICWA notice has happened if there is nothing in the record at the trial court level:

Nor can we find that the error was harmless. While father filed an ICWA–020 form indicating that he was not aware of any Indian ancestry, no such form appears in the record with respect to appellant. Similarly, the record contains no copies of either the certified notices sent to the Cherokee tribes in 2009 or 2010 or any responses from those tribes. Finally, it does not appear that any proof of the juvenile court’s ICWA finding from the prior matter was submitted to the juvenile court in this matter. Consequently, it was not possible for the juvenile court in the present case to assess the propriety of the notice given, whether all three federally recognized Cherokee tribes received notice, whether either of the two Cherokee tribes besides the Cherokee Nation responded, or precisely what the juvenile court’s finding that ICWA did not apply was based on. (Cf. In re Jennifer A. (2002) 103 Cal.App.4th 692, 703 [finding prejudicial error where Agency stated in a report that it had sent notices to tribes in compliance with ICWA, but no evidence was presented to juvenile court concerning Agency’s communications with tribes].)

Case here.

Montana ICWA Case: Notice, Active Efforts and a Look at Adoptive Couple Citations

October 3, 2014Kate Fort1 Comment

Here.

A footnote in the case,

The record does not clarify whether G.S. ever had custody of M.S. The record is silent regarding G.S.’s relationship with M.S. prior to his incarceration. We recognize that 25 U.S.C. 1912(d) does not apply where the “breakup of the Indian family” has long since occurred. In re J.S., 2014 MT 79, P29, 374 Mont. 329, 321 P.3d 103 (citing Adoptive Couple v. Baby Girl, 570 U.S. __, 133 S.Ct. 2552, 2559 (2013)). Although the District Court asked during the April 22, 2013 hearing, before Baby Girl was decided, how the ICWA standard for termination applies in a situation where the child was never in the parent’s custody, the parties did not dispute that ICWA’s active efforts were required. Because this potential issue was not raised, we will not address it in this appeal.

got me looking for other cases that have cited Adoptive Couple. According to Westlaw, that would be 19 cases, including this one. Striking four of them as not child welfare cases, all 15 remaining were involuntary proceedings. Five from California, two from Montana, and one in Alaska, Nebraska, Oklahoma, North Carolina, North Dakota, Minnesota, Michigan, and Virginia. Three cases “distinguished” Adoptive Couple, though that included the Alexandria P. case, so distinguishing Adoptive Couple doesn’t necessarily mean the court followed ICWA. Seven of the cases only cited the case (including this one).

Those that used the Adoptive Couple reasoning (instead of citing the case for fairly standard ICWA language) include:

Native Villiage of Tununak v. State (holding that the adoption preferences of ICWA didn’t apply if the preferred placement didn’t “formally” move to adopt the child);

In re J.S. (applying the “continued custody” reasoning to a guardianship); and

In re Elise W. (discussing whether the case would change notice requirements when a parent never had custody)(unpublished case out of California’s First District).

In re T.S. (discussing when active efforts must start, in light of 1922 and 1912(d))