In re Autumn K.

Unreported ICWA Placement Preference Case out of California

Kate Fort

Here.

Very difficult case with extensive testimony. Child was ultimately placed with distant cousins instead of grandparents with a history with the department. The court found good cause to deviate from the tribe’s preferences of matrilineal relatives.

Because there is so much testimony in this opinion, it gives a window into the way the lower courts are making these decisions, and how the court understands how children connect to their tribal communities:

[Foster parent] already encouraged [three year old child] to look at Chickasaw language flashcards and language applications, to make beaded necklaces, and to hunt, fish, and pick berries.

The Department’s report recommending good cause to deviate from placement preferences included this very frustrating statement:

It is unfortunate that that [sic] tribe is so distant and has not had the opportunity to meet Autumn and the people she considers to be parents. If they had, they may decide that it is in actuality in their tribe’s best interest to avoid placement disruption and the possibility of creating an attachment disorder in this young child who currently has such a bright future.

California COA Decides ICWA Placement Preferences Matter

Matthew L.M. Fletcher1 Comment

Here is the opinion (Cal. App.):

In re Autumn K

An excerpt:

This appeal challenges an order terminating the parental rights of mother Patricia M. and father Bryan K. to their daughter Autumn K. and placing the child for adoption. Because Autumn was of Chickasaw descent and thus an Indian child, the dependency proceeding fell within the provisions of the Indian Child Welfare Act, 25 U.S.C. section 1901, et seq. (ICWA). As such, there were particular substantive requirements with which the juvenile court was obligated to comply when selecting a permanent plan for Autumn. Most significantly, absent good cause to deviate from this requirement, ICWA obligated the court to place Autumn with a member of her extended family, a member of her tribe, or another Indian family. (25 U.S.C. § 1915.) Here, there were two potentially viable, ICWA-compliant placements: maternal grandmother Teresa, who had custody of Autumn’s six siblings and had sought placement of Autumn from the outset of the dependency case, and maternal aunt Beatrice. Despite that, the court, relying on a conclusion by respondent Del Norte County Health and Social Services Department (Department) that Autumn could not be placed in her grandparents’ home, placed Autumn in a non-Indian home with a distant relative.

On appeal, the parents contend the juvenile court erred for a multitude of reasons. We agree with one argument that necessitates reversal: the Department erred in determining maternal grandfather José had a nonexemptible criminal conviction such that Autumn could not be placed with her grandparents. We conclude two different statutory provisions instructed that the conviction was in fact exemptible, and the Department was thus obligated to evaluate the request for an exemption on its merits. We therefore reverse.