Here.
NYTs on Lack of Indian Foster Families
Here.
ICWA
TruthOut Rips Media for Mischaracterizing Baby Veronica Case
Michigan ICWA Bill (MIFPA) Passes State House of Representatives–Will Likely Become Law
Some good news in this legislative session–the Michigan Indian Family Preservation Act just passed in the House and, having already passed in the Senate, is heading to the Governor’s office for him to sign. Bill status and versions are available here.
NICWA Press Release Responding to Dr. Phil Episode On ICWA
NATIONAL INDIAN CHILD WELFARE ASSOCIATION RESPONDS TO THE DR. PHIL SHOW’S COVERAGE OF SOUTH CAROLINA INDIAN CHILD WELFARE ACT CASE
Portland, Ore.–On October 18, 2012, the Dr. Phil show aired an episode that focused on a disputed custody case involving an American Indian child, Veronica. The case pits a loving father’s attempts to parent his daughter against a non-Indian couple from South Carolina–the Capobiancos–and their attorneys who orchestrated an illegal attempt to adopt Veronica. The National Indian Child Welfare Association (NICWA) is gravely disappointed in the heavy slant toward the Capobiancos’ recounting of the situation and interpretation of the legal issues in the case.
Veronica’s father, who has been relentlessly vilified in the media as a “deadbeat dad” is, in fact, a loving parent and a decorated Iraq war veteran. Rather than acknowledge his right to protect his daughter from a media firestorm that has proven deeply biased, the Dr. Phil show instead allowed personal attacks on his character and speculation on his parenting–from those who admittedly have had no contact with him–to continue unchallenged. We find these attacks unsupported by court records and unacceptable.
Veronica’s pre-adoptive placement was kept secret by her mother and attorneys representing the Capobiancos. Her placement with them was not revealed to Veronica’s father for four months–just days before he was sent to Iraq. Upon learning of his daughter’s proposed adoption, the father quickly moved to affirm his rights to parent Veronica. After three decisions supporting his rights in the South Carolina courts, he has been parenting her since January 2012.
Dr. Phil and several of his guests ignored the fraudulent process attorneys representing the Capobiancos used to help them gain custody of Veronica during their unsuccessful attempt to adopt her. That Veronica is American Indian was known by the Capobiancos and their attorneys, as was the fact that any adoptive process involving her would be covered by the Indian Child Welfare Act (ICWA). Instead of delving into why the Capobiancos were advised to circumvent the law, putting Veronica at high risk, Dr. Phil instead chose to rebuff the two guests with the most knowledge of this case and experience in such matters, Assistant District Attorney of the Cherokee Nation Chrissi Nimmo and Les Marston, attorney and tribal judge.
NICWA understands this case is emotionally-charged and has attracted worldwide attention. Nonetheless, we must reject the subjective definitions of what is in Veronica’s best interest that Dr. Phil disappointingly reinforced. Not only did the discussion of Veronica’s “best interest” completely discount the importance of her cultural identity and rights as a tribal citizen, it more shockingly ignored the significance of her being raised within a loving home with her father, sister, stepmother, and loving grandparents–and among a community that includes extended family and tribal members who love her. As Nimmo correctly stated, if Veronica was a non-Indian child, existing state and federal laws would have afforded the father an opportunity to seek custody of her and not reward those who violated the law.
Furthermore, NICWA firmly believes that Veronica’s best interest is not served by the continued negative media campaign currently pursued by the Capobiancos and their public relations firm. We have no doubt they love Veronica, but in this case, the ends they hope to accomplish certainly do not justify the means. Dr. Phil’s portrayal only serves to put Veronica at further risk.
The show’s characterization of ICWA was also filled with misinformation and inaccuracies. ICWA is a law that has helped protect thousands of American Indian children and keep them with their families. Veronica’s story illustrates the clear ongoing need for federal protections like ICWA for American Indian children who continue to be the victims of questionable, and sometimes illegal, attempts to adopt them out.
To learn more about how you can support the National Indian Child Welfare Association’s efforts to strengthen protections for American Indian children and families and to access more information on this case, please visit our website at http://www.nicwa.org.
Cheyenne River Sioux Tribe v. Honorable Jeff W. Davis: ICWA Case
Decision here.
The Cheyenne River Sioux Tribe filed a writ of mandamus to the South Dakota Supreme Court, trying to stop the practice of the lower courts using 25 USC 1922 to justify ignoring ICWA’s requirements for weeks after a removal of a child. The Supreme Court dismissed the writ.
In this case, the original removal was on July 6. At a hearing on July 23, the judge stated that the hearing was a “continuation of the emergency hearing, and that ICWA placement preferences were not yet applicable.” The Supreme Court upheld this decision, and the inapplicability of ICWA to emergency or temporary custody proceedings.
After the court justified ignoring the plain language of the section (applying it to all Indian children, and ignoring the “imminent physical damage or harm” requirement of a 1922 action), the court went on to state:
Tribe also asserts a violation of state law in the temporary custody hearing based upon an alleged lack of evidence of a need for temporary custody as required by SDCL 26-7A-18. Tribe ignores, however, that the temporary custody hearing proceeded on the State’s petition for temporary custody and the accompanying police report and ICWA affidavit from a DSS specialist . . . While these documents might not constitute evidence within the normal bounds of the Rules of Evidence, those rules are not applicable at a temporary custody hearing.
It would be interesting to know what rules do apply to temporary custody hearings in South Dakota.
SCAO Training on ICWA Qualified Expert Witnesses
The information is here.
Purpose: This training will help child welfare professionals understand the role of the QEW and will provide practice tips on how to effectively present QEW testimony. This will include testimony on tribal history, tribal perspective on children and childhood, cultural expectations, specific tribal family history, and the unique needs of the Indian child. In addition to improving foundational knowledge on the role of the QEW, the training will also help judges to evaluate the quality of the testimony as well as further aid attorneys in conducting direct and cross examination of the QEW. The morning session will feature a presentation on the role of the QEW in ICWA cases. The afternoon session will offer hands-on exercises demonstrating QEW testimony in an ICWA case.
Target audience: Judges (state and tribal); referees; other court staff; attorneys; DHS caseworkers; other DHS child welfare personnel; and private agency caseworkers.
Memorandum from Judge in ICWA Case out of South Dakota’s Seventh Circuit
We would call this a shocking opinion in case #A12-245 for various reasons, but here is one excerpt:
First, the Tribe does not have a fundamental right to fairness under ICWA, even though the parents and children do. ICWA serves as a procedural prophylactic which permits, or compels, a state court to transfer a child custody proceeding to tribal court so that the tribe may exercise its inherent sovereignty over its tribal members. The Tribe, at its option, could invoke that that jurisdiction and have the case transferred into tribal court. However, it elected not to do so. Consequently, state law prevails in the 48-hour hearing, and Indian parents who appear before the Court are subject to those rules at that stage.
Of course, if ICWA doesn’t apply at the 48 hour hearing, it’s hard to figure out how the Tribe would even know to move to transfer the case.
This is one of those most ICWA hostile opinions we’ve read in a while–especially the parts about proceeding informally, and the endless loop the court creates in not applying ICWA in emergency hearings.
In re Alvarez, Unpublished Michigan COA Opinion
A strange case with not great language about the non-Indian parent and active efforts.
Supreme Court Denies Cert in Nielson v. Ketchum (Cherokee ICWA Case)
Our prior post on the case is here.
In re T.S.W., Kansas ICWA Case on Finality for Appeal and Placement in Private Adoptions
Here.
The Kansas Supreme Court again comes out with strong language in support of ICWA. In addition, the case, which has a complicated procedural history given the actions of the private adoption agency, provides an interesting analysis of what is a “final order” in an ICWA case and a discussion of the collateral order doctrine:
Under the circumstances presented here, we conclude the district court’s order permitting a deviation from ICWA’s placement preferences did not dispose of the entire merits of the case and left open the possibility of future action by the district court with respect to T.S.W.’s placement. Thus, the Tribe has not appealed from a “final order, judgment or decree” under K.S.A. 2011 Supp. 59-2401a(b)(1), and we lack statutory authority to hear this appeal.
But that holding does not end our analysis. Alternatively, the Tribe urges us to exercise jurisdiction under the collateral order doctrine. That doctrine, which we sparingly apply, provides a narrow exception to the final order requirement. It “allows appellate courts to reach ‘not only judgments that “terminate an action,” but also a “small class” of collateral rulings that, although they do not end the litigation, are appropriately deemed “final.” [Citation omitted.]'” Kansas Medical Mut. Ins. Co., 291 Kan. at 611-12 (quoting Mohawk Industries, Inc. v. Carpenter, 558 U.S. ___, 130 S. Ct. 599, 605, 175 L. Ed. 2d 458 [2009]).
This case is also an illustration of the difficulties of ICWA and private adoptions. The adoption agency initially refused to consider any placements provided by the Cherokee Nation if the families couldn’t pay the $27,500 fee:
In this case, we need not extensively consider whether the Agency followed the placement preferences before seeking a deviation from those preferences. It did not. While the Agency made some effort to satisfy the second placement preference when it requested the Tribe provide available adoptive family profiles, the Agency impermissibly qualified its request in at least two ways. First, the Agency provided the Tribe with Mother’s extensive “criteria” for any prospective adoptive family. Second, the Agency specified that prospective adoptive families be able to pay the Agency’s $27,500 fee requirement. And while the Agency eventually indicated a willingness to modify its fee based on an unspecified sliding scale, the parties never agreed as to the parameters of that scale because Mother chose a non-Indian family based on profiles presented to her from the Agency.
Essentially, the Agency grafted its substantial fee requirement as well as Mother’s placement criteria (which ironically specified that the adoptive parents be Caucasian) onto ICWA’s placement preferences. Common sense dictates that ICWA’s placement preferences cannot be undermined in this manner. In fact, the Agency’s actions appear to fly in the face of Congress’ intent in enacting ICWA. See Holyfield, 490 U.S. at 37 (ICWA “‘seeks to protect the rights of the Indian child as an Indian and the rights of the Indian community and tribe in retaining its children in its society’ . . . by establishing ‘a Federal policy that, where possible, an Indian child should remain in the Indian community'” and ensuring that Indian child welfare determinations are not based on a white, middle-class standard that often forecloses placement with an Indian family).
The Court found that the agency and the lower court did not follow the placement preferences of ICWA, even after the Nation provided 17-20 (!) potential adoptive families for the child, and reversed the decision.
Turtle Talk 
You must be logged in to post a comment.