Indian Child Welfare Act

Minnesota Supreme Court Releases In re R.S.

Matthew L.M. Fletcher1 Comment

Here is the opinion:

Opinion – Published

The court’s syllabus:

1. The plain language of 25 U.S.C. § 1911(b) (2006) is not ambiguous and, with respect to an Indian child not residing or domiciled within the child’s tribe’s reservation, permits transfer to tribal court of only foster care placement and termination of parental rights proceedings.

2. The provision of the 2007 Tribal/State Agreement requiring transfer of “any child placement/custody proceedings” is void to the extent that it purports to require transfer of preadoptive and adoptive placement proceedings involving an Indian child not residing or domiciled on the reservation of the child’s tribe.

3. With respect to an Indian child not residing or domiciled on the child’s tribe’s reservation, Rule 48 of the Minnesota Rules of Juvenile Protection Procedure, providing for transfer of “the juvenile protection matter” to the tribal court of an Indian child’s tribe, is limited to foster care placement and termination of parental rights proceedings.

Reversed and remanded.

A link to streaming video of the oral argument.

Here is our posting on our amicus brief and the lower court decision.

Part One of Three Part NPR Investigation in ICWA Compliance

Matthew L.M. Fletcher6 Comments

Utterly devastating.

Here. An excerpt:

Key Findings Of This Investigation

* Each year, South Dakota removes an average of 700 Native American children from their homes. Indian children are less than 15 percent of state’s the child population, but make up more than half the children in foster care.

* Despite the Indian Child Welfare Act, which says Native American children must be placed with their family members, relatives, their tribes or other Native Americans, native children are more than twice as likely to be sent to foster care as children of other races, even in similar circumstances.

* Nearly 90 percent of Native American children sent to foster care in South Dakota are placed in non-native homes or group care.

* Less than 12 percent of Native American children in South Dakota foster care had been physically or sexually abused in their homes, below the national average. The state says parents have “neglected” their children, a subjective term. But tribe leaders tell NPR what social workers call neglect is often poverty; and sometimes native tradition.

* A close review of South Dakota’s budget shows that they receive almost $100 million a year to subsidize its foster care program.

Derrin Yellow Robe, 3, stands in his great-grandparents' back yard on the Crow Creek Reservation in South Dakota. Along with his twin sister and two older sisters, he was taken off the reservation by South Dakota's Department of Social Services in July of 2009 and spent a year and a half in foster care before being returned to his family.

John Poole/NPR Continue reading →

Michigan COA Decides ICWA Active Efforts/Expert Witness Case

Matthew L.M. Fletcher

Here is the unpublished, per curiam opinion.

Michigan COA Decides ICWA Active Efforts Case

Matthew L.M. Fletcher

Here is the opinion in In the Matter of Dawson:

Dawson

Nebraska COA Decides ICWA Transfer Case

Matthew L.M. Fletcher

Here is the court’s opinion in In re Melaya F.

Tenth Circuit Affirms Dismissal of Federal Court ICWA Challenge on Res Judicata Grounds

Matthew L.M. Fletcher

Here is the opinion in Yancey v. Thomas.

Excerpt:

We are not persuaded. We agree with the Thomases that Yancey’s action is barred by res judicata and that the state-court rulings must be given full faith and credit under § 1738.

The briefs:

Yancey Appellant Brief

Thomas Appellee Brief

Lower court materials here.

Okla. SCT Holds Adoption without Consent is Not Termination of Parental Rights under ICWA

Matthew L.M. Fletcher1 Comment

Here is the opinion in In re G.D.J.

An excerpt:

¶36 Section 1912 of the ICWA requires the use of a “beyond a reasonable doubt” standard of proof, for certain purposes, in a proceeding to terminate parental rights. As discussed above, our statutes prohibit a trial court from taking any action that results in a termination of the parent-child relationship in a proceeding to determine a minor child eligible for adoption without the consent of a natural parent. Therefore, a “clear and convincing” standard of proof is all that is necessary in such a proceeding. The higher standard of proof is relevant to the specific determination, the continued custody of the child by the parent or Indian custodian, is likely to result in serious emotional or physical damage to the child. The hearing on the petition for adoption, which has not occurred in the present case, will be a proceeding which may result in the termination of a parent-child relationship, and is the only proceeding in which the court may grant a final decree of adoption. At the hearing on the petition for adoption, evidence relevant to matters included in subsection (f) of Section 1912 must be proven “beyond a reasonable doubt” in order to support a determination that parental rights should be terminated, including the testimony of an expert witness. Continue reading →

Cal. Appeals Court Reverses State Court ICW Decision for Lack of Notice

Matthew L.M. Fletcher3 Comments

Here is the unpublished opinion in Pit River Tribe v. Superior Court. An excerpt:

Petitioner Pit River Tribe (the Tribe) seeks an extraordinary writ to vacate the order of the juvenile court at a postpermanency planning hearing (Welf. & Inst Code, § 366.28), at which it found good cause to deviate from the placement preferences set forth in the Indian Child Welfare Act (ICWA).  (25 U.S.C. § 1901 et seq.)  The Tribe contends the good cause finding was in error because there was a failure to comply with the ICWA’s notice and placement requirements.  Because the social services agency failed to use the services of the Tribe to secure a placement conforming to the ICWA placement preferences, failed to expeditiously evaluate the relatives recommended by the Tribe for placement, failed to assist in obtaining a criminal record exemption or adequately explain why it did not do so for one of the ICWA-compliant placement options, and failed to apply the Tribe’s social and cultural standards when assessing the relative’s home, we are compelled to agree.

Illinois Appellate Court Affirms Denial of Transfer of ICW Case to Bad River Chippewa Tribal Court

Matthew L.M. Fletcher

Here is the opinion in In re M.H.

Michigan Appellate Court Decides ICWA Notice Case

Matthew L.M. Fletcher

Here is the unpublished opinion in In re J.L. Gordon.