Indian Child Welfare Act

Cal. Appellate Court Terminates Parental Rights over Tribal Objections

Matthew L.M. Fletcher

Here is the opinion in In re S.H.

An excerpt:

On October 16, 2008, the juvenile court found the Indian Child Welfare Act applied based upon proof that mother is a member of the Manchester Point Arena Band of Pomo Indians (Tribe). The Tribe advised the juvenile court that, although minor is considered an adoptable child, it would only support legal guardianship as a permanent plan in order to protect her best interest in a continued tribal relationship.

The trial court bypassed the reunification services route, and the appellate court upheld, writing:

Having reviewed the record in this case, we would indeed conclude mother suffered no prejudice from the juvenile court’s refusal to consider granting her reunification services, as there is simply no evidentiary basis for doing so. In particular, while the department opposed mother’s request for consideration of reunification services after the dependency proceedings were reinstated and the original guardianship was terminated, it nonetheless addressed the reunification issue in a report dated May 6, 2010, in anticipation of the post-permanency planning review hearing. In this report, the department advised the court that mother “has been informed numerous times by the Tribe, and the Department concurs, that she would need to complete the attached ten-point treatment goal plan in order for any consideration of reunification for any of her children to be considered. She has not participated in any planning for reunification, much less participated in any of the ten-point plan.”8 The report also noted that mother remained consumed by anger, had made threats to minor’s foster family, and had generally been unsupportive of minor’s placement despite the negative impacts her conduct had on her relationship with both minor and the Tribe. This evidence of mother’s poor conduct in the post-permanency period, which mother does not appear to have addressed, is in addition to the clear and convincing evidence underlying the juvenile court’s initial decision to bypass services for her, including her role in the death of another child through abuse or neglect and in the severe physical abuse of minor’s half-sibling, her failure to make a reasonable effort to treat the problems that had led to the removal of minor’s half-siblings, and her failure to rehabilitate despite extensive efforts on her behalf by the department and the Tribe. Under these circumstances, there is no reasonable probability that mother would have obtained a more favorable result had the juvenile court reopened the reunification services issue before appointing the successor guardians.

 

 

Ninth Circuit Affirms Dismissal of Challenge to State/Tribal Court ICWA Jurisdiction in Alaska

Matthew L.M. Fletcher1 Comment

Here is the unpublished opinion in S.P. v. Native Village of Minto.

Here are the materials:

Parks Appellant Brief

Minto Appellee Brief

Parks Reply Brief

Federal Supplemental Brief

Minto Supplemental Brief

 

Book Review of Atwood’s “Children, Tribes, and States”

Matthew L.M. Fletcher2 Comments

Here, from the Law & Politics Book Review (h/t to Legal History Blog). An excerpt:

In CHILDREN, TRIBES, AND STATES: ADOPTION AND CUSTODY CONFLICTS OVER AMERICAN INDIAN CHILDREN, Barbara Ann Atwood provides a thorough and compelling discussion of US statutory law, case law and policy, and their effects upon American Indian tribal law, policy and culture in general, and specifically their dual application to American Indian children. In this well-researched treatise, Atwood painstakingly documents and analyzes over 200 years of US federal and state child welfare policy and procedure regulating the custody placement and adoption of the American Indian child.

Professor Atwood has been publishing scholarly legal articles in the subject-matter area of American Indian family law and policy for over 20 years. Although she has included portions of her prior works in this book, the articles are in substantially revised form – this book is far from a mere “re-hash” or compilation of her prior work.

From the book’s first sentence in the “Introduction” – “When sovereigns compete to determine the interests of children, fundamental questions of power and legitimacy inevitably arise” –Atwood sets the clear tone of the book. She confirms an underlying premise that “American law should respect the distinct worldviews held by Indian tribes and their richly diverse approaches to community, family, parenting, child welfare, and adoption [which are all divergent from US norms].” Early on, Atwood states that the Indian Child Welfare Act of 1978 “compels respect for Native culture within the United States.” Thereby she signals her plan to provide a well-documented critique of US federal, state and American Indian tribal child welfare law and policy. From chapter to chapter, this goal is met.

 

Nebraska Appellate Court Issues Opinion on ICWA Qualified Expert Witnesses

Matthew L.M. Fletcher

Here is the unpublished opinion in In re Erika J.

An excerpt:

In the case at hand, the only witness to provide any testimony that returning Erika and Tyler to Edward’s care was likely to result in serious emotional or physical damage to the children was Whipple-Benitez. Edward contends that Whipple-Benitez is not a psychologist or therapist and did not present any evidence that she was recognized by the tribal community. Whipple-Benitez is, however, a member in good standing of the tribe and has a bachelor of arts degree in accounting and a teaching certificate for Spanish. Whipple-Benitez is a Spanish teacher at a local high school and has previously worked with the Chadron Native American Center as a Native American community liaison providing family support and programs about cultural practices, celebrations, youth involvement, and future planning. Whipple-Benitez is also a liaison for the Circle of Pride youth group for Native American students and families, and she has worked with family support workers with Speak Out, providing family classes for Native American families who are in need of extra support with child-rearing or cultural practices. Additionally, the record indicates that Whipple-Benitez previously worked with the DHHS integrated care coordination unit conducting workshops, which required knowledge of the ICWA.

Given her extensive background and continued involvement with the tribe and Native American families, we find that the record establishes that Whipple-Benitez was sufficiently qualified to testify as an expert witness under the requirements of the ICWA.

ICWA-Related Federal Civil Rights Claim Dismissed

Matthew L.M. Fletcher1 Comment

Here is the opinion in Belinda K. v. County of Alameda (N.D. Cal.):

Belinda K v County of Alameda.

Here is an excerpt:

Plaintiff’s Count Sixteen is a § 1983 claim based on her allegation that her ICWA right to competent counsel in the Superior Court dependency proceedings was violated. Plaintiff alleges that the defendants “conspired and agreed that appointed attorneys would not as a custom and practice produce any written pleadings for the defense of their clients, nor would they be paid for their time to consult with their appointed clients.” Compl. ¶ 212. Plaintiff alleges that appointed counsel appeared in court but provided no “substantive actual effort, no investigation of the facts or the law nor vigorous defense or responsive pleadings” on behalf of appointed clients. Compl. ¶ 214. Plaintiff is asserting a direct claim for violation of ICWA (on the basis of ineffective assistance of counsel and on a number of other bases as well) in the related action, J.H. v. Baldovinos, pending before this Court. In Count Sixteen’s § 1983 claim, Plaintiff seeks to hold defendants liable for money damages and attorney’s fees based on this alleged violation. These remedies are not available to Plaintiff in her direct ICWA claim.

Colorado Appellate Court Reverses Termination of Parental Rights for Failure to Give Proper Notice under ICWA

Matthew L.M. Fletcher

Here is the opinion in In re L.A.N.

An excerpt:

In this dependency and neglect proceeding, L.M.B. (mother) appeals from the judgment terminating her parent-child legal relationship with L.A.N., also known as L.A.C. (the child). Mother contends, and we agree, that the judgment must be vacated because the notice requirements of the Indian Child Welfare Act of 1978, 25 U.S.C. §§ 1901-1963 (the ICWA), were not met. Therefore, we vacate the judgment and remand for further inquiry and proper notice as provided in this opinion. However, because the child may not be eligible for tribal membership, or even if she is, the case may not be transferred to a tribal court, we also address mother’s contention that the court erred by denying her request for production of the file of the child’s therapist. We further conclude that the court erred in denying mother’s request, and that a remand is needed to address this issue.

Michigan Appellate Courts Issue another ICWA “Conditional Affirmance” Case

Matthew L.M. Fletcher

Here is the unpublished opinion in In re Orianwo/McCrary.

ABA Judges Journal Article on ICWA by Judge Tim Connors

Matthew L.M. Fletcher

The article is titled “Our Children are Sacred: Why the Indian Child Welfare Act Matters.”

Here:

JJ_SPR11_Connors

Iowa Court of Appeals Decides ICWA Notice Case

Matthew L.M. Fletcher

Here is the opinion in In re L.B.-A.D.

An excerpt:

Under the circumstances presented, we find the State has proved by clear and convincing evidence grounds for termination under section 232.116(1)(h). Additionally, we find no error in the juvenile court’s determination that termination of the mother’s parental rights was in the best interests of the children. However, because we determine the court erred in failing to give proper notice to the tribes in which the children could be determined to be “Indian children,” we remand the matter to the juvenile court, which shall give notice of the termination proceedings to the appropriate Indian tribes. See R.E.K.F., 698 N.W.2d at 150. If the tribes fail to respond within the appropriate timeframe or reply and determine the children are not eligible for tribal membership, the juvenile court’s original order of termination will stand. If a tribe responds and intervenes, reversal of the termination and further proceedings consistent with the requirements of the Iowa ICWA will be necessary. We therefore affirm the juvenile court‟s termination ruling on this condition. We do not retain jurisdiction.

Michigan COA, on Remand from Mich. SCT, Decides ICWA Notice Case

Matthew L.M. Fletcher1 Comment

Here is that opinion. An excerpt:

This termination of parental rights case returns to this Court on remand from the Supreme Court “for reconsideration of the respondent father’s appeal in light of the confession of error by petitioner Department of Human Services regarding the failure of it and the Wayne Circuit Court, Family Division, to comply with the notice requirements of the Indian Child Welfare Act (ICWA), 25 USC 1901 et seq.” In re C I Morris, ___ Mich ___; 796 NW2d 51 (Docket No. 142759, decided April 22, 2011). We readopt our original opinion and conditionally affirm the circuit court, but we remand this case with regard to both respondents for further proceedings consistent with this opinion.

Here is the Supreme Court’s remand order.