Determination of Indian Child ICWA Case out of Montana Supreme Court


In affidavits supporting the TIA and TLC petitions, Child Protection Specialists (CPS) noted they had no reason to believe that any of the children were subject to the Indian Child Welfare Act (ICWA). However, at a May 2016 show cause hearing, the District Court was notified that ICWA possibly applied to K.J. considering K.J.’s father received benefits from the Arapahoe Tribe. The benefits signaled potential for K.J. to meet the “Indian child” designation of ICWA. Yet, further correspondence with the Arapahoe Tribe conclusively determined that ICWA was inapplicable to K.J. The District Court granted the Department authority to investigate and work with the parents and children.

In October 2016, the Department again filed petitions for adjudication as YINC and TLC for all three children. CPS Mariesa Wallis submitted three identical affidavits in support which included the statement: “To the best of my knowledge and belie[f] the child is an Indian Child subject to [ICWA].” Wallis’ affidavit did not reference specific tribes or details concerning possible tribal affiliations. The petition and accompanying affidavits are the sole documents in the record suggesting J.J.C. or R.G. were Indian children.

Emphasis added. The Court found that ICWA did not apply (actually, that there was no reason to believe the child was an Indian children, which . . . seems like the wrong finding). Assuming, however, the communication with the Tribe was accurate, it is correct for the trial court to follow that determination rather than the state social worker’s affidavit.

Texas Court Decides ICWA Notice Case

Here is the opinion in In re J.J.C., where the court conditionally affirmed a trial court decision provided adequate notice is provided to relevant Indian tribes.

An excerpt:

We find that the trial court did have reason to believe that A.M.C. and J.J.C. were Indian children and that the trial court erred in failing to ensure that proper notice was given to the appropriate individuals and agencies. We abate this cause to the trial court as stated above. If, after notice and a hearing, the trial court determines that A.M.C. and J.J.C are not Indian children, then the termination order will be affirmed. If, after notice and a hearing, the trial court determines that A.M.C. and J.J .C are Indian children, then the termination judgment of the trial court will be reversed and the trial court must conduct a new trial applying the requirements and standards of the ICWA.