ICWA

Kathryn Fort on Tribal-State Cooperation and the Indian Child Welfare Act

Matthew L.M. Fletcher

Our own Kathryn Fort has posted her new paper, “Waves of Education: Tribal-State Cooperation and the Indian Child Welfare Act,” on SSRN. It is forthcoming in the Tulsa Law Review.

Here is the abstract:

This article focuses on the relationship and agreements between tribal and state judicial systems in Michigan. In tracing that work, the article demonstrates the cyclical nature of tribal-state court relations, and the way the welfare of Indian children binds together tribal and state judicial systems, regardless of either side’s participation. Federal intervention in this area under the auspices of the Indian Child Welfare Act (“ICWA”) virtually forces tribes and states to work together. How the personnel in the tribal and state systems interact has a huge impact on the children of the tribes in Michigan.

Twice in the past twenty years representatives of the tribal and state judiciaries in Michigan have come together to negotiate agreements, create rules, and draft legislation. Once the work is done, however, how do the courts handle these kind of agreements? Part of the problem with state ICWA laws elsewhere is the courts’ unwillingness to affirm a state law that differs from ICWA. Tribes and states willing to do the work to create a state ICWA law that is tailored to state laws, while providing more than the minimum standards created by the federal ICWA, have at times been greeted with hostility in the courts. Regardless, the relationships that develop through the process of drafting these laws and agreements benefit both tribal and state systems.

Unpublished ICWA Opinion out of Nebraska

Kate Fort

In re Zylena R..

The court found that the denial of transfer to tribal court was not an abuse of discretion by the trial court. In this case the blood quantum requirements of the tribe initially led to a determination that the children were not eligible for membership, though it turns out the determination was in error. Because of the error, the tribe was late to intervene, and the trial court denied transfer. The State and the GAL opposed transfer, and the court used a best interests standard to deny transfer. It’s not a pretty opinion and touches on a number of the usual issues involved in these cases (permanency, termination of parental rights, whether foster care placement and termination proceedings are separate or intrinsically linked).

Second ICWA-Related Argument at Michigan SCT on Wednesday

Matthew L.M. Fletcher1 Comment

Here is the issue in In re Gordon:

Courtney Hinkle first came to the attention of Children’s Protective Services after she was suspected of neglecting her months-old infant. When the child was one year old, CPS learned that he had been treated for second-degree burns to his hands, allegedly caused by a fall into a fireplace, and that Hinkle had not obtained follow-up medical care for him as directed. CPS filed a court action, and the child was taken into protective custody and placed in foster care. After attempting to provide services for Hinkle and concluding that she did not benefit from them, the Department of Human Services filed a petition seeking termination of Hinkle’s parental rights. At the conclusion of the termination hearing, the circuit judge found that DHS had established grounds for termination, and that termination was in the child’s best interests.

Hinkle appealed to the Court of Appeals, contending that DHS and the circuit court failed to comply with the notice requirements of the Indian Child Welfare Act (ICWA), 25 USC 1901 et seq., and failed to create a complete record of their attempts at compliance. Under the ICWA, child custody proceedings involving foster care placement or termination of parental rights to an “Indian child,” 25 USC 1903(4), are subject to specific federal procedures and standards. ICWA requires that an interested Indian tribe receive notice of termination proceedings involving an Indian child, 25 USC 1912(a). Under the ICWA, an “Indian child” is any unmarried individual less than eighteen years of age who is either (1) an Indian tribe member or (2) both eligible for Indian tribe membership and an Indian tribe member’s biological child. 25 USC 1903(4). The question whether a person is a member of a tribe or eligible for membership is for the tribe itself to answer. In re NEGP, 245 Mich App 126, 133 (2001). The failure to comply with the Indian tribe notice requirements may lead to invalidation of the proceedings. 25 USC 1914.

The circuit court record disclosed that Hinkle informed the judge that her family was part of the Saginaw Chippewa Indian tribe in Mt. Pleasant. Hinkle stated that she and her child were not tribal members, and that her biological mother was not a member of the tribe, but that her mother’s siblings were, including the aunt who was caring for her son during his foster care placement. She stated that she and her mother were awaiting word as to their own eligibility for tribal membership. The circuit judge directed DHS to investigate the child’s possible tribal membership and to notify the tribe of the proceedings. At a later hearing, the caseworker stated that she mailed a certified letter to the tribe, but had not heard back as to the child’s membership. At a subsequent hearing, the caseworker informed the court that Hinkle’s mother had been told that the family was not eligible for tribal “benefits.” The foster mother stated that she was a tribal mother, and that she tried to obtain information regarding the child’s status from the tribe, but that the tribe refused to release that information to anyone but DHS or the court. The court directed the caseworker to contact the tribe again. The ICWA notice issue was not mentioned again at any hearing and the file contains no mention of any further communications with the tribe.

The Court of Appeals affirmed the trial court’s termination of Hinkle’s parental rights in an unpublished per curiam opinion. Hinkle did not demonstrate that the trial court and DHS failed to satisfy ICWA’s notice requirement, the Court of Appeals stated; there was ample evidence that the tribe had actual notice of the proceedings, the appellate court said. Moreover, “[g]iven respondent’s own statement in court that she received a response that she and her son were not eligible for tribal membership, the trial court was relieved from embarking on further ICWA tribal notification efforts,” the Court of Appeals concluded. Hinkle appeals.

And here are the briefs:

Petitioner-Appellee’s Response to Application for Leave to Appeal>>

Respondent-Appellant’s Application for Leave to Appeal
Respondent-Appellant’s Supplemental Brief>>

Michigan Indian Legal Services, Inc. and The American Indian Law Section of the State Bar of Michigans’ Amici Curiae Brief>>

ICWA, California, and “Family Lore”

Kate Fort5 Comments

A new phrase caught our eye while researching California notice cases for 2011 (far fewer than back in 2007, strangely enough, and far fewer ICWA cases nationwide). However, so far in 2011, the phrase “family lore” has popped up three times in ICWA cases in California cases. It cropped up twice (in the same unpublished case) in 2010, but not once from 2000-2009. And in case you were wondering, there have been 37 cases remanded for ICWA notice compliance so far this year in California. All three cases this year come out of the 2nd Appellate District, and have different judges. However, because they are all out of the same lower court (Superior Court of L.A. County), they share the same County counsel and Assistant County counsel (chief of the Dependency division), though each had different Principle Deputy County counsels. The phrase seems to be coming out of the juvenile court record in each case.

Here are the cases and how “family lore” is used:

In re Jeremiah L.

2011 WL 3964653 (Cal.App. 2 Dist. Sept. 9, 2011)

Father appealed whether the court had reason to know ICWA should apply. The court rejected his argument.

The Department was ordered to contact maternal great-grandmother on maternal grandfather’s side for further information. The court stated, ‘At this time the court has no reason to know that the children would fall under the Indian Child Welfare Act. It sounds like family lore at this point.’ *8

and,

The suggestion that maternal great great-grandmother was part Cherokee came from maternal grandfather, who was told this by maternal great-grandfather and maternal great great-grandmother. Maternal grandfather stated he would find out from maternal great-grandmother if there was further information. In these circumstances, the fact he did not make himself available to the social worker for a follow-up interview reasonably indicated that the story of Indian ancestry was nothing more than unfounded ‘family lore.’ *9

In re Hunter W.

2011 WL 3806151 (Cal.App. 2 Dist. Aug. 30, 2011)

The mother appealed claiming ICWA applied. The court rejected her argument.

The court held that it ‘does not believe that family lore, pursuant to case law, is reason to know a child would fall under [ICWA],’ and no notice need be given to any tribe or to the Bureau of Indian Affairs. The court ordered the parents to ‘keep [DCFS], their attorney, and the court aware of any new information relating to possible ICWA status.'” *9

and

However, as we have discussed, the court also concluded mother’s claim of Indian heritage through her father was too speculative to begin with, ruling that ‘[t]he court does not believe that family lore … is reason to know a child would fall under [ICWA].’ We conclude that this is an independent and valid reason for the court to find that ICWA did not apply. *10

In re Christina W.
2011 WL 635869 (Cal.App. 2 Dist. Feb. 23, 2011)

Mother and father appealed lack of notice for ICWA. Court reversed and remanded on the issue of notice (“Although the Father has not provided detailed information, his claim of Cherokee or Lakota ancestry was enough to satisfy the ‘minimal showing required to trigger the statutory notice provisions.'” *18).  This case also includes some of the juvenile court transcript.

‘Pursuant to 224.3, relative membership which is remote or family lore without any reason or family lore without any recent identification with any tribe is not reason to know. The court is finding, based upon this information that the court does not have, at this particular point, any reason to know that the [ICWA] is involved.’ *14 (quoting the juvenile court)

[California Welfare & Institutions Code 224.3 makes no reference to family lore nor to the remoteness of the relationship as a reason NOT to know an Indian child is involved].

In re J.T.
2010 WL 2505639 (Cal.App. 4 Dist. June 22, 2010)
Father appealed lack of inquiry to determine if ICWA applied. Court rejected the appeal.

Here, mother was asked about possible Indian ancestry, in both the current and prior cases, and denied it. Consequently, if she later discovered that family lore indicates Indian ancestry, or if she had previously known it but had chosen not to disclose it, it was up to her to disclose that information to the court or to the department in order to trigger a duty either to make further inquiry or to give notice. Such information was exclusively within her knowledge, and its disclosure was wholly within her control. (See ibid.) *7.

Supreme Court Asks Solicitor General for Views on Kaltag ICWA Case

Matthew L.M. Fletcher1 Comment

Interesting development, and better than a grant, I suppose, but the Supreme Court has asked the Office of Solicitor General to express the federal government’s views in the Hogan v. Kaltag Tribal Council case — also known as a CVSG. Order list here.

It is extremely likely that the Court will decide whether or not to take the case based on the brief filed by the OSG.

Other materials here.

Published Active Efforts Case in California

Kate Fort

This question was debated often in my ICWA class this year–what would  active efforts consist of for a sex offender and/or pedophile parent (father, in this case)?  The California Court of Appeals, 4th district, held there are none required:

Nevertheless, his history clearly demonstrates the futility of offering reunification services: He is a registered sex offender with a prior conviction for lewd and lascivious acts on a child under the age of 14.  . . . The parents do not suggest any services which might have been offered to the father under the circumstances and we cannot conceive of any services which could usefully be offered to a registered sex offender with a prior conviction for molesting a child and a current finding of molesting a different child. For these reasons, requiring the court to provide services to the father would be at best an idle act which would not further the legislative purposes of ICWA.

While this quote is from the section of the case discussing active efforts prior to removal to foster care, the court came to the same conclusion for active efforts prior to termination.

Oddly, the court is also confused as to whether the father is Cherokee or Choctaw, using them interchangeably at one point.

In re K.B. Opinion

In re Lee Oral Argument

Kate Fort3 Comments

The Michigan Supreme Court heard the oral argument today in the In re Lee case, which we’ve referenced before. The case involves both the issue of active efforts and the beyond a reasonable doubt standard required by the Indian Child Welfare Act. Specifically the Court asked whether active efforts have to be recent and for each individual Indian child and whether the beyond a reasonable doubt standard required contemporaneous evidence of the emotional or physical harm to the child if he remains with his parent.  Both the American Indian Law Section and the Children’s Law Section of the Michigan bar filed amicus briefs in the case.

Continue reading →

Michigan Court of Appeals Ruling in ICWA Case

bnewland2 Comments

We are told that the following report contains numerous inaccuracies, so please take the description of the case with a grain of salt. The majority opinion is here. The concurring/dissenting opinion is here.

From MIRS:

Federal Law Keeps Indian Mother, Baby Together

A Native American mother with a history of dating abusive men will be allowed to keep her newborn daughter, despite the cries of state social workers that a reunification could put the baby in physical and emotional danger.

The Court of Appeals ruled today that [Mother] should be given custody of 11-month-old [Daughter] based on a strict federal law the stresses the preservation of Indian households.

A ruling signed by appellate judges William WHITBECK and Jane MARKEY reverses a lower court ruling by saying that social workers didn’t do everything it could have under the Indian Child Welfare Act (ICWA) to keep the family together. Continue reading →

“Comanche Princesses” and ICWA

Matthew L.M. Fletcher

The California Court of Appeals held the mere invocation that a distant ancestor was a “Comanche princess” likely does not rise ot probable cause that a child may be an Indian child under the Indian Child Welfare Act.

Opinion in In re Shane G.

Justin L. v. Superior Court of Los Angeles County

Kate Fort

The Second Appellate Court in California issued a partially published opinion (Justin L. v. Superior Court) (or here). Part of the published part includes the following:

We are growing weary of appeals in which the only error is the
Department’s failure to comply with ICWA. (See In re I.G. (2005) 133
Cal.App.4th 1246, 1254-1255 [14 published opinions in 2002 through 2005, and
72 unpublished cases statewide in 2005 alone reversing in whole or in part for
noncompliance with ICWA].) Remand for the limited purpose of the ICWA
compliance is all too common. (Ibid.) ICWA’s requirements are not new. Yet
the prevalence of inadequate notice remains disturbingly high. This case presents a particularly egregious example of the practice of flouting ICWA. The
Department concedes it sent no notices, notwithstanding the juvenile court’s
specific order that it do so. And, we have been given no indication that the
Department has attempted to mitigate the damage it caused in failing to attend to
ICWA’s dictates by sending notices while this proceeding was pending.

I am not sure if the court is referring to cases only heard by the Second Appellate Circuit, or why the court only listed information from 2005. In the three years since then, departmental compliance hasn’t gotten much better. In a survey of state court ICWA cases for 2007 (1/07-2/26/08), California only published 19 ICWA cases but had 308 ICWA cases total. While nationwide, 161 ICWA cases were remanded for ICWA violations, a vast majority–85%–of those were California notice cases. In addition, of all the non-California ICWA cases nationwide, only 9 out of 58 cases were notice cases, and only 2 of those were remanded or overturned.