ICWA

A Particularly Troubling Unpublished Notice Case from California

Kate Fort

More than the usual troubling CA notice cases, that is. Particularly the part about not having to do *any* notice, regardless of the court’s confusion about the history and location of the Pascua Yaqui Tribe.

Here.

The social worker reported Audrey said her father, Luis H., has some Yaqui Indian heritage, but she had not spoken with him and did not have sufficient information to fill out the form. When the social worker telephoned Luis, he said his mother was born in Sonora, Mexico,and  mother’s father was Yaqui. He said he did not know if any family member was registered with a tribe, but reported no family member practiced any tribal customs.

***

At the contested jurisdictional/dispositional hearing on July 30, Audrey again indicated her only potential Indian heritage was from the Yaqui Tribe in Mexico. County Counsel said as a precautionary measure the Agency would provide ICWA notice to the Yaqui Tribe in the United States and, on August 1, it sent notice to the Pascua Yaqui Tribe in Arizona. The court, however, found ICWA notice was not required because there was no reason to believe Mason is an Indian child in that Audrey had indicated her only potential Indian heritage is through the Mexican Yaqui Tribe, and the Mexican Yaqui Tribe is not a federally recognized tribe governed by ICWA.

Cherokee Nation Changes Placement Preferences Under ICWA

Kate Fort

Article here.

The tribal resolution, which passed unanimously, states: “In any adoptive placement of a Cherokee child under state law, a preference shall be given, in the absence of good cause to the contrary, to a placement with a biological parent or parents; a member of the child’s extended family; other members of the Cherokee Nation; or other Indian families.”

Oregon Court of Appeals Applies ICWA to Guardianships

Kate Fort1 Comment

But does not require contemporaneous active efforts when ordering one.

Here is the opinion.

Given our conclusion that the guardianship was a “foster care placement”  under ICWA, we now consider whether the juvenile court was required under ICWA to make an “active efforts” finding at the proceeding in which that guardianship was  established. Mother argues that, because the guardianship is a foster care placement, the  juvenile court was required to include an active efforts finding in the guardianship  judgment. Although we disagree with DHS’s argument that the guardianship was not a  “foster care placement,” we conclude nonetheless that DHS satisfied ICWA’s “active  efforts” requirement at the 2011 permanency hearing. Therefore, the juvenile court was  not required to make an “active efforts” finding in the guardianship judgment.

ICWA Transfer Case Out of Nebraska

Kate Fort

Here.

We conclude that Cameron and Amanda failed to timely
appeal from the orders denying the motions to transfer the cases to tribal court. As such, this court is without jurisdiction to address Cameron and Amanda’s argument that the juvenile court erred in that respect. Upon our de novo review, we find that the State presented clear and convincing evidence that termination of Cameron’s and Amanda’s parental rights to S, L, H, and J was in the children’s best interests. Accordingly, we affirm the orders of the juvenile court.

Oklahoma ICWA Interpretation Case: In re T.S.

Kate Fort2 Comments

We posted recently about the Supreme Court’s contempt for Congress. In this case that looks like an active efforts case, but turns into a long opinion interpreting many provisions of ICWA (active efforts, foster care placement, emergency removal) out of Oklahoma, it appears this contempt isn’t limited to the Supreme Court. This could be particularly harmful in ICWA cases. Opinion here.

From the trial court regarding active efforts in foster care placement:

The juvenile court announced his conclusion of ′′a lack of congressional intent in seeking foster care placement that active efforts have been proven unsuccessful. I think that was meant just for termination of parental rights proceeding.′′ Commenting ′′other courts have attempted to make rather constrained ways of finding active efforts have been met,′′ the court found ′′there has been offering of parenting classes to Father, even the placement of these children with their mothers is certainly an attempt to prevent the breakup of the Indian family, although they are not in [Father’s] care and he can’t have them returned to him on his demand.′′ After he acknowledged the opinion testimony of the qualified expert witness, Ms. Watashe, that ′′[active efforts] don’t apply but they have been met,′′ the court found ′′those things allow the Court to go forward with a finding that active efforts have been met here. I don’t find that they’ve been proven unsuccessful, but I don’t know how they could be at this stage. Again poor wording by Congress. Take that up.′

Footnote 10

And a troubling use of Baby Girl from the Oklahoma Appellate Court (this is a case where the children were with father, and removed on an abuse charge. NOT the fact pattern of Baby Girl):

Our decision to affirm is supported by the U.S. Supreme Court’s recent interpretation of ¶ 1912(d) in an adoption proceeding opposed by the Indian child’s biological father, a member of the Cherokee Nation who was never married to the child’s mother. See Adoptive Couple v. Baby Girl, 133 S.Ct. 2552, 2562- 2563 (June 25, 2013). In pertinent part, a majority of
the U.S. Supreme Court interpreted ¶ 1912(d) to apply ′′only in cases where an Indian family’s ′′breakup′′ would be precipitated by the termination of the parent’s rights,′′ and found such interpretation was confirmed by ¶ 1912(d)’s ′′placement next to ¶ 1912(e) and ¶ 1912(f), both of which condition the outcome of proceed- ings on the merits of an Indian child’s ’continued cus- tody’ with his parent.′′ (Emphasis added.) Id. Construing these adjacent provisions together, the Court further found:
None of the provisions create parental rights for unwed fathers where no such rights would otherwise exist. Instead, Indian parents who are already part of an ′′Indian family′′ are provided with access to ′′remedial services and rehabilitative programs′′ under ¶ 1912(d) so that their ′′custody′′ might be ′′continued′′ in a way that avoids foster-care placement under ¶ 1912(e) or termination of parental rights under ¶ [**59] 1912(f). In other words, the provision of ′′remedial services and rehabilitative programs′′ under ¶ 1912(d) supports the ′′continued custody′′ that is protected by ¶ 1912(e) and ¶ 1912(f). (Emphasis added; citation and footnote omitted.)
In this contested deprived child proceeding subject to ICWA, even if State had provided Father access to the specific services and programs after the show cause hearing and he had successfully commenced those programs, foster care placement could not have been avoided in light of the clear and convincing evidence supporting the juvenile court’s ¶ 1912(e)’s finding, i.e. at this stage of the proceeding Father’s continued custody was likely to result in serious emotional or physical damage to the children.

California Placement Preference Case Dismissed for Lack of Ripeness

Kate Fort

Here. Child was from White Earth, and both tribal counsel and expert witness argued for relative placement. Department argued mother did not have standing and forfeited the relative placement issue even though child was “not suitable for adoption” and ICWA applied. Court disagreed but still dismissed:

Here, although A.C. had earlier requested assessment as a caregiver for the children, she withdrew her request in May 2012. She was again referred to the relative assessment unit on June 19. The record does not indicate whether that referral, only one month before the hearing on review, had yet been finalized. The orders appealed from do not address that issue. Because the assessment was still pending at the time of the hearing, we conclude the issue is not ripe for appellate review.

Tulsa World Coverage Of Cherokee Nation Filing in Legal Fees Case

ilpc

Here.

Also the ICT article is here.

NCJFCJ Seeks Senior Policy Analyst

Kate Fort

Or as some us might call it, “Gina Jackson’s Job.”

The National Council of Juvenile and Family Court Judges (NCJFCJ) seeks a Senior Policy Analyst in their Juvenile Law’s Child Abuse & Neglect program.

The minimum requirements for this position include a degree from an accredited university and at least five years of experience in child welfare, domestic violence, or juvenile/family law-related field. Preference will be given to candidates with a graduate degree in social work, public administration, law, political science, sociology, or closely related field preferred (a JD is particularly desirable). Substantial experience working with tribes and tribal courts, along with experience and knowledge of delinquency, dependency, or domestic violence systems, ICWA, and VAWA are key ingredients for the Senior Policy Analyst position.

This position will serve as the primary staff liaison to the Tribal Court Judicial Leadership Committee and as an internal staff resource on tribal court/tribal issues. A strong emphasis is on providing public presentations and/or on-site technical assistance to tribal and state courts as well as critical thinking, analytical ability, writing policy briefs and papers, and working collaboratively with partners and system representatives. Applicants must have strong organizational skills with both a broad vision and attention to detail, comprehensive computer skills, and a willingness and ability to travel nationwide. Occasional lifting up to 50 lbs. may be required

For more information visit here.

Prof. Karen Tani Writes About “Remembering the ‘Forgotten Child'” in Light of Adoptive Couple at Jotwell

Kate Fort

Here.

These revelations are sure to disturb any reader, but the point of Jacobs’s important article is not to expose adoption proponents as disingenuous or malevolent. It is to place an ongoing phenomenon—Indian children’s disproportionately high rate of separation from their families—in proper historical context. (P. 154.) “It is no coincidence,” Jacobs writes, “that the IAP arose during the era in which the federal government promoted termination [of tribal nations’ special status] and relocation policies for American Indians.” (P. 152.) Adoptions enabled the federal government to terminate its responsibilities, child by child, by shifting them to “the ultimate ‘private’ sector.” (P.154.) By extension, Jacobs argues, adoptive families also advanced the government’s long-term “effort[] to eliminate Indianness.” (P. 154.) This, Jacobs demonstrates, was the backdrop for the ICWA. When tribal leaders and advocacy organizations convinced Congress to enact the new law, it was a small victory in a long war. And when plaintiffs invoke the ICWA today, they raise a hard-won shield.

We agree that Margaret Jacobs “Remembering the ‘Forgotten Child’: The American Indian Child Welfare Crisis of the 1960s and 1970s” 37 American Indian Quarterly 136 (2013) is an excellent and important article.

ICWA Jurisdiction Case out of North Carolina

Kate Fort1 Comment

Here.

Finding the tribe, not the state, has exclusive jurisdiction over child welfare issues arising on tribal land. Also interesting is the state courts’ continued resistance to recognizing tribal-state agreements surrounding ICWA (pp 9-12) (see, eg, In re R.S. (Minn. 2011)).

For purposes of the ICWA, Ellen’s domicile was that of her
parents. See Miss. Band of Choctaw Indians v. Holyfield, 490
U.S. 30, 48, 104 L. Ed. 2d 29, 46 (1989). At the time DSS filed
the juvenile petition on 8 November 2011, respondents were
domiciled in Cherokee, North Carolina, within the Tribe’s Qualla
Boundary land trust.4 Therefore, this case is governed by 25
U.S.C. § 1911, which grants exclusive jurisdiction to the tribal court, “except where such jurisdiction is otherwise vested in
the State by existing Federal law.” 25 U.S.C. § 1911(a).