California COA (Los Angeles) Reverses Guardianship Case for Violation of ICWA Notice Requirement

Here is the opinion in In re S.E.:

In re S.E.

An excerpt:

A.A.-E. (Father) and S.S. (Mother) appeal from an order of the juvenile court establishing guardianship of their son, S.E. Both parents contend that the Los Angeles County Department of Children and Family Services (DCFS) failed to comply with the inquiry and notice requirements of the federal Indian Child Welfare Act of 1978 (ICWA) (25 U.S.C. § 1901 et seq.) and the analogous California statutes governing custody proceedings involving Indian children. (Welf. & Inst. Code, § 224 et seq.) We conclude that the inquiry and notice conducted was not in full compliance with the requisites of the statute. We reverse for the limited purpose of full compliance with ICWA, as explained below.

Also:

Although we are sympathetic to DCFS‟s contention that Mother‟s objection will result in regrettable delay in the proceedings, we cannot say that the failure to thoroughly  investigate the child‟s Indian heritage constitutes harmless error. The information which was omitted here pertained directly to the ancestor Mother and the maternal grandmother affirmatively claimed was Indian. Under these circumstances we cannot say that the omission was harmless and that providing the ancestor‟s name might not have produced different results concerning the child‟s Indian heritage. (Cf. In re Antoinette S., supra, 104 Cal.App.4th 1401 [omission of information concerning non-Indian relatives is harmless error if the notice included all known information about the Indian parent and relatives].) Where the information was known, its inclusion was required regardless of the lack of a preprinted line on the Judicial Council form asking for it.

Public Radio Spots on Baby Veronica Case

Minnesota (with Colette Routel)babyveronica

and New Mexico (with Fletcher)

and Michigan (with Fort)

NPR (with Marcia Zug and Mary Jo Hunter)

New Scholarship on the “American Indian Child Welfare Crisis of the 1960s and 1970s”

Margaret D. Jacobs has published “Remembering the ‘Forgotten Child’: The American Indian Child Welfare Crisis of the 1960s and 1970s” in the American Indian Quarterly. Email me for a pdf.

Here is an excerpt:

On Christmas Day 1975, Marcia Marie Summers was born to Charlene Summers, a member and resident of the Standing Rock Sioux Nation in North Dakota. A few months later, a white couple from Indiana approached the young mother and offered to care for her infant while Summers attended school. (Just two months before, the couple had filed an adoption petition in the Standing Rock Tribal Court for another Indian child, but the court had denied their request.) Assuming she was making a temporary arrangement, Summers agreed and signed a document giving the Indiana couple power of attorney over Marcia Marie in parent-child-related actions. Immediately, the couple departed with the baby from the reservation and returned to Indiana. Summers realized that the couple intended to permanently adopt her daughter, so she asked the Standing Rock Tribal Court to intervene. When the couple ignored the tribal court’s order to return the child to her mother, Summers and tribal authorities requested the help of the Association on American Indian Affairs ( AAIA). Their attorney filed a writ of habeas corpus on Summers’s behalf in the Washington County, Indiana, Circuit Court, and the judge ordered Marcia Marie returned to her mother, noting the tribe’s exclusive jurisdiction in the case.

Like Summers, in the 1960s and 1970s, thousands of other American Indian parents, grandparents, and caretakers suffered the removal of their children and their placement in non-Indian foster or adoptive homes. Unlike Summers, however, many Indian families struggled for years to regain their children, and some were never able to effect their return. By the late 1960s, many Indian tribes had become deeply troubled by this practice. In 1968, having endured an inordinate number of such cases, the Devils Lake (now Spirit Lake) Sioux Tribe of North Dakota requested that the AAIA conduct an investigation into the practice. The AAIA found that of 1,100 Devils Lake Sioux Indians under twenty-one years of age living on the Fort Totten reservation, 275, or 25 percent, had been separated from their families. Suspecting that this practice devastated other Indian communities as well, the AAIA engaged in a painstaking process to amass similar data from state social services agencies and private placement agencies across the nation. They discovered that in most states with large American Indian populations, 25 to 35 percent of Indian children had been separated from their families and placed in foster or adoptive homes or in institutions at a per capita rate far higher than that of non-Indian children.

How did it come to pass that the fostering and adoption of Indian children outside their families and communities had reached these crisis proportions by the late 1960s? State welfare authorities and Bureau of Indian Affairs ( BIA) officials alleged a dramatic rise in unmarried Indian mothers with unwanted children and claimed that many Indian individuals and families lacked the resources and skills to properly care for their own children. Claiming to be concerned with the best interests of the Indian child, the BIA promoted the increased fostering and adoption of Indian children in non-Indian families. Indian families and their advocates charged instead that many social workers were using ethnocentric and middle-class criteria to unnecessarily remove Indian children from their families and communities. Through creating their own child welfare organizations and legal codes, as well as working for the Indian Child Welfare Act ( ICWA), Indian activists and their allies sought to bring Indian child welfare under the control of Indian nations.

Additional Responses to South Dakota Motions to Dismiss Oglala Sioux Tribe ICWA Class Action

Here:

OST11(Reply to DSS MTD)

OST12(Reply to Vargo MTD)

The initial response to the motions to dismiss is here.

California Court of Appeals Decides ICWA Customary Adoption Case

Here is the opinion in In re C.G.:

In re C.G.

An excerpt:

We hold that to preserve claims related to the failure to follow the tribal customary adoption procedures, a parent must object on those grounds in the juvenile court. Here, father failed to object to those procedural errors. Further, any such errors were harmless here. Accordingly, we affirm the juvenile court‟s order.

Illinois Court of Appeals Decides ICWA Tribal Intervention Appeal

Here is the opinion in In re K.T.

An excerpt:

Respondent is the mother of K.T. K.T. is a member of the Seminole Indian tribe. The State filed a juvenile petition alleging that K.T. was neglected because her environment was  injurious to her welfare, in part, as a result of respondent’s behavior. At respondent’s combined adjudication and dispositional hearing, the Illinois Department of Children and Family Services (DCFS) notified the court that K.T.’s Indian tribe was interested in becoming a party to the case. Respondent then moved for a continuance so that the tribe could enter the case. The trial court denied respondent’s motion. We reverse and remand.

Oglala Sioux Tribe Response to Judge Davis Motion to Dismiss

Here:

OST9(ReplyToDavisMTD)

The motion to dismiss is here.

North Carolina COA Decides ICWA Notice Case

Here is the opinion in In re A.R.:

NC App Opinion

Update in Oglala Sioux Tribe ICWA Class Act: Motions to Dismiss Filed

Here are the new materials in Oglala Sioux Tribe v. Van Hunnik (D. S.D.):

Davis Motion to Dismiss

Malsom-Rysdon and Van Hunnik Motion to Dismiss

Vargo Motion to Dismiss

Prior posts here and here.

Ninth Circuit Dismisses Fred v. Washoe Tribe Appeal

Here is the unpublished opinion.

Briefs:

Washoe Tribe Opening Brief

Fred Brief

From the opinion:

This is an interlocutory appeal asserting jurisdiction in this court under the collateral order doctrine. The underlying claims relate to the Washoe Tribe’s decision to take custody of the plaintiff’s grandchildren due to allegations of abuse by the grandchildren’s mother (the plaintiff’s daughter). After pursuing tribal  remedies, the grandmother, Ms. Fred, filed suit against the Tribe in federal district court. The district court dismissed for failure to state a claim with leave to amend. The Tribe appeals the district court’s dismissal in its favor because the dismissal was without prejudice, arguing that the complaint should have been dismissed with prejudice for three reasons: 1) failure to exhaust tribal court remedies; 2) tribal sovereign immunity; and 3) lack of subject matter jurisdiction.

Prior posts on this case here and here.