Amazing turn out.
Susan Harness Kicks Off Overflow MIFPA Training in Grand Rapids
Amazing turn out.
ICWA
Unpublished ICWA Burden of Proof Case out of Michigan
Here.
The record demonstrates that although the trial court found that DP and AP were Indian children under the ICWA, the trial court did not apply the heightened “beyond a reasonable doubt” evidentiary standard of proof at the termination hearing as required under ICWA. Id.; 25 USC 1912(f). The record further demonstrates that although a representative of DP and AP’s Indian tribe testified at the termination hearing, the witness was never qualified as an expert and, importantly, the witness did not testify that respondents’ “continued custody of” DP and AP was “likely to result in serious emotional or physical damage to the” Indian children. 25 USC 1912(f); In re Morris, 491 Mich at 100 n 9. In both Docket No. 318105 and 318163, petitioner concedes that the trial court “committed reversible error” by applying the incorrect evidentiary standard of proof, and petitioner requests that we reverse the trial court’s termination of respondents’ respective parental rights to the Indian children and remand for further proceedings consistent with applicable ICWA provision. On the record before us, we agree that the trial court committed plain error affecting respondents’ substantial rights. In re Utrera, 281 Mich App at 8- 9; see In re Morris, 491 Mich at 100 n 9. In both Docket No. 318105 and 318163, we reverse the termination of respondents’ respective parental rights to the two Indian children, DP and AP, and remand for proceedings in compliance with ICWA, 25 USC 1912(f).
Published Definition of Indian Child Case out of California
Here.
State Judges Respond to Oglala Sioux Tribe Motions for Summary Judgment
Here are the new materials in Oglala Sioux Tribe v. Van Hunnik (D.S.D.):
128 Defendants Response to 1922 Motion
129 Defendants Response to Due Process Motion
The motions for summary judgment are here.
The evidentiary exhibits are here.
The DOJ amicus brief is here.
Notice Violation Case out of Illinois
That’s right–out of Illinois. According to Westlaw (ICWA & “Indian Child Welfare Act”), there are a grand total of 11 ICWA cases from the Illinois appellate courts.
Here is the most recent. The appeals court reversed and remanded due to ICWA notice violations (for one child–the other was not the biological child of the father):
At the dispositional hearing on April 26, 2011, the trial court found Dwight to be unfit and awarded guardianship of N.L. to DCFS. Among the reports submitted for the court’s consideration was a social history report, dated March 23, 2011, indicating that Dwight is a registered member of the Minnesota Chippewa Tribe, White Earth Reservation (the Tribe).
***
The trial court questioned the State about the children’s eligibility for tribal registry and was advised that the State had already received notices that both minors were ineligible for registry with the Tribe. The State was ordered to provide documentation of its compliance with the statute at the status hearing on December 18. No documents addressing the issue of tribal registry for the minors were submitted at that or any subsequent proceeding until the hearing on the State’s motion to supplement the record during the pendency of this appeal.
***
The State’s Tribe letters suggest that the Tribe was provided with the minors’ names and dates of birth and imply that Dwight’s name was provided with reference to N.L. The State’s Tribe letter for N.L is dated September 16, 2011, and that for M.L. is dated February 25, 2013. In its order granting the State’s motion to supplement the record, the court expressed concern with Dwight’s solicitation of new evidence while the case was on appeal. However, many of the documents the State was allowed to include with its supplementation were dated after the termination hearing and after Dwight’s notice of appeal.
Dwight filed a motion with this court to supplement the record with his own Tribe letter– from the same person who had signed the State’s letters– showing that N.L. and M.L. were eligible for tribal membership. He acquired this letter as a result of his solicitation for evidence related to the appeal. This court allowed Dwight to submit his Tribe letter with his case pending our decision of the propriety of its inclusion in the record. Dwight’s Tribe letter states that the minors are eligible for tribal membership and suggests that the Tribe was provided with the dates of birth for both minors, the correct spelling of N.L.’s name, and the names and dates of birth for both Dwight and Emily.
For reference, here’s the list of the Illinois appellate ICWA cases:
Active Efforts Case Out of Washington Court of Appeals
Here.
Despite Louch’s argument that visitation is a remedial service under ICWA, that term is not defined in the federal or state version of ICWA. Louch cites no state or federal case holding that visitation itself is a remedial service for purposes of ICWA. Visitation as part of a parenting class or other therapy might be part of a remedial service, but consistent with T.H., visitation in and of itself is not “remedial.”
Finally, even assuming visitation is a remedial service, “ICWA does not require the State to continue making active efforts to remedy parental deficiencies at the expense of physical or emotional damage to the child.”43 Numerous courts have held that active efforts under the federal ICWA does not mean persisting with futile efforts.44***
He also claims that, due to his severe mistrust of the child welfare system, the Department was required to “determine a different approach” to working with him in order to engage him in services.48 But services were coordinated through the Nooksack Indian Tribe, and Louch cites no authority supporting his argument that the Department did not engage in active efforts by failing to provide access to the specific cultural activities referenced above.4
According to the opinion, the child in this case was placed with an American Indian family who are also taking care of her two other siblings.
Expert Witness ICWA Case Out of Alaska
Here.
Applying the correct meaning of the phrase “professional person having substantial education in the area of his or her specialty,” we hold that Cosolito and Kirchoff should have been qualified as experts under the third BIA guideline. As social workers, both were “professional persons.” Both had “substantial education in the area of [her] specialty”: master’s degrees in social work, internships in relevant subject areas as required for their degrees, agency training, and continuing professional education. The experience of both witnesses further demonstrated the required “expertise beyond the normal social worker qualifications.” Cosolito described her work as an OCS supervisor overseeing hundreds of cases, identifying safety threats, and having ultimate responsibility for custody decisions; as an OCS line worker assessing reports of harm; and as a school administrator and social worker in Arizona working with the diverse behavioral and education needs of students and their families. Her testimony demonstrated regular and in-depth exposure to the very types of family and behavioral issues that were central to Candace’s case, including the possibility that Candace would be assaulted again, be re-traumatized, and engage in more self-destructive behavior.Kirchoff appeared even more amply qualified to testify about the risks of serious emotional or physical harm if Candace were returned to her home. Kirchoff had a lengthy work history as a mental health clinician, working with children with emotional and behavioral problems in a variety of institutional and agency settings, as well as a private practice of custody investigations and adoption home-studies. As Candace’s own clinician, treating her in both individual and group therapy, Kirchoff was uniquely qualified to testify with authority about Candace’s susceptibility to emotional harm.
Termination ICWA Case Out of Texas Court of Appeals
Here.
The opinion is 28 pages long and the court addresses notice (actual notice was sufficient even if not strictly ICWA compliant), active efforts (happened), state law requirements (harmonious with ICWA), standard of proof (met), jury instructions (adequate), expert witness testimony (was interesting) . . .
Having viewed the evidence in the light most favorable to the verdict, we conclude that the Department proved beyond a reasonable doubt that (1) active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and that these efforts have proved unsuccessful, (2) that the continued custody of K.S. by D.S. is likely to result in serious emotional or physical damage to K.S., and that (3) the finding is supported by testimony from an expert witness. See 25 U.S.C.A. §§ 1912(d), (f); Jackson, 443 U.S. at 319, 99 S. Ct. at 2789.
Three Remanded for ICWA Notice Deficiency Cases out of California
Cases from the Second District, the Fourth District and the First District.
From the Second District:
Before the next scheduled hearing on January 31, 2013, DCFS submitted the following documents to the court: signed return receipts for the entities noticed; a letter from the Bureau of Indian Affairs acknowledging receipt of the ICWA notice but indicating it does not determine tribal eligibility; a letter from the United Keetoowah Band of Cherokee Indians in Oklahoma declining to intervene in the case because there was no evidence T.M. was a descendant of anyone on the Keetoowah Roll based on the information supplied; a letter from the Cherokee Boys Club, Inc., on behalf of the Eastern Band of Cherokee Indians, declining to intervene in the case because T.M. was neither registered nor eligible to register as a member of the tribe based on the information supplied; and a letter from the Cherokee Nation seeking further information. The Cherokee Nation letter asked DCFS to “verify correct spelling of maternal great great grandmother Lual Made [D.], also need her date of birth. Relationship of Eleonora [H.] to the above named child. [¶] We need dates of birth for everyone involved, their relationship to the child or children in question, and maiden names of all females listed. It is impossible to validate or invalidate this claim without more complete information.” (Boldface and capitalization removed.)
At the January 31, 2013 hearing, which was presided over by a different hearing officer than Commissioner Lewis, the court stated the tribes were properly noticed and it had received letters back from the tribes indicating T.M. was not an Indian child. The court found the ICWA did not apply. The court did not acknowledge the Cherokee Nation’s request for further information.
Just spit balling here, but maybe the reason Cherokee Nation puts part of its response in BOLDFACE CAPITALIZATION is to help a state court out, so it doesn’t find ICWA doesn’t apply when it might.
ICWA Placement Preference Decision Out of California Involving Choctaw Tribe
Here.
This is a re-occurring and incredibly frustrating ICWA fact pattern–if the ICWA compliant placement is out of state, or far away from the parents, and the goal is reunification, it makes sense for the tribe and state to allow for a non-compliant ICWA placement near the parents. What happens, however, when reunification fails? As in this case, a court is often unwilling to remove the child from the home she has been in for anywhere from one to three years. Honest, actual, concurrent permanency planning could help with this, but while that is a best practice, it does not seem to be happening with any regularity at the state.
Concluding that the ICWA’s adoptive placement preferences do apply to this case, we then review the trial court’s order finding that the P.s failed to produce clear and convincing evidence of good cause to depart from those placement preferences. We determine that the court applied the correct burden of proof by requiring the P.s to prove by clear and convincing evidence that there was good cause to deviate from section 1915’s placement preferences. However, the court erroneously required the P.s to prove a certainty that Alexandria would suffer harm if moved, and failed to consider Alexandria’s best interests or her bond with the P.s in determining good cause.
***
We recognize that a final decision regarding Alexandria’s adoptive placement will be further delayed as a result of our determination of the merits of this appeal. That delay is warranted by the need to insure that the correct legal standard is utilized in deciding whether good cause has been shown that it is in the best interest of Alexandria to depart from the ICWA’s placement preferences.
As also often happens, the parties start arguing about the very constitutionality of ICWA, making this case a “not as bad as it could have been” case–the court didn’t find ICWA is unconstitutional, nor does Adoptive Couple apply (as the de facto parents argued) to this fact pattern. And yet, the trial court decision placing the child with her extended family is still overturned based on the child’s best interest standard. Getting courts to acknowledge that the best interests of a child ought to include the child’s whole life, not just the one transition in front of the court at that moment, is both vital and seemingly impossible.
For the (depressing) record, here is Evelyn Blanchard writing the same thing in 1977 in The Destruction of American Indian Families, ed. Steven Unger (Association of American Indian Affairs 1977).
(Happy to post redacted briefs if we receive any)
Turtle Talk 
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