Indian Child Welfare Act – Page 28

Colorado Appeals Court Decides ICWA Notice Case

May 13, 2011Matthew L.M. Fletcher

Here is the opinion in In the Interest of J.C.R.

An excerpt:

A notice obligation arises under the ICWA when the court has reason to know or believe that an Indian child is involved in the case. State courts have read this notice obligation broadly, redressing violations when the child’s Indian status is unclear and when Indian descent has been merely asserted. See B.H., 138 P.3d at 303-04. And, because the ICWA protects tribal interests, otherwise sufficiently reliable information cannot be overcome by a parent’s actions or be disregarded as untimely. Id. at 304.

Here, however, there was no information provided by anyone during the proceedings, much less sufficiently reliable information, or even a mere assertion concerning the children’s possible Indian heritage. Thus, the trial court had no reason to know or believe that the children had Indian ancestry and, therefore, no reason to notify the children’s or parents’ tribe, or the Bureau of Indian Affairs concerning the proceeding.

Cami Fraser on Advising Parents in ICWA Cases

May 12, 2011Matthew L.M. Fletcher1 Comment

Cami Fraser has published an outstanding paper in the Spring 2011 edition of the Michigan Child Welfare Journal titled “Should this ICWA case be Transferred to Tribal Court? Issues for Parents’ Attorneys to Consider and Discuss with their Clients.” It appears here on page 2.

Briefing in California SCT Case Involving Application of ICWA to Juvenile Delinquency Cases

May 11, 2011May 9, 2011Matthew L.M. Fletcher

Here are the materials in In re W.B.:

W.B. Opening Brief

California Answer Brief

W.B. Reply Brief

Here are the petition stage briefs.

Washington Appellate Court Remands ICWA Indian Status Case

May 2, 2011Matthew L.M. Fletcher

Here is the unpublished opinion in In re T.B.

From the opinion:

P.R. appeals Kitsap County orders establishing a dependency for her three children and placing them in the care of others. She argues that there was insufficient evidence to prove that she was incapable of adequately caring for the children. See RCW 13.34.030(6)(c). She also contends that the Department of Social and Health Services and the court failed to comply with the requirements of the Indian Child Welfare Act, 25 U.S.C. § 1912 (ICWA). We find adequate evidence to support the dependency but remand for a proper determination of the children’s Indian status.

Michigan COA: “Indian in my family” Not Enough to Invoke ICWA

April 26, 2011April 25, 2011Matthew L.M. Fletcher

Here is the unpublished opinion in In the Matter of Plaunt.

An excerpt:

Second, respondent contends that the trial court erred and violated his procedural due process rights because it failed to follow the requirements of the Indian Child Welfare Act. We disagree. Under 25 USC 1903(4), an “Indian child” is “any unmarried person who is under age eighteen and is either (a) a member of an Indian tribe or (b) . . . eligible for membership in an Indian tribe and . . . the biological child of a member of an Indian tribe.” See also MCR 3.002(5). The trial court properly questioned respondent and the child’s mother concerning membership or eligibility for membership in an Indian tribe or band. The child’s mother indicated that the child did not belong to any Indian tribe or band. Respondent’s vague statement that he had “Indian in my family” but did not know if he was a member or eligible for membership in any Indian tribe or band was not sufficient to put the court on notice that the child was a member or eligible for membership in an Indian tribe or band. The fact that respondent may have had some Indian heritage did not make him an “Indian” under 25 USC 1903(3) and did not qualify the child as an “Indian child” under 25 USC 1903(4). See, e.g., In re Johanson, 156 Mich App 608, 613-614; 402 NW2d 13 (1986). The trial court did not err in concluding that the child was not a member or eligible for membership in an Indian tribe or band. Respondent was not denied his procedural due process rights.

Minn. COA Affirms Transfer of ICWA Case to Sisseton Tribal Court

April 22, 2011April 22, 2011Matthew L.M. Fletcher

Here is the unpublished opinion in In re Child of C.L.

The court’s syllabus:

Appellants Traverse County and the guardian ad litem of O.L. challenge the district court‟s transfer of jurisdiction over this termination-of-parental-rights (TPR) proceeding to the Sisseton-Wahpeton Oyate Tribal Court, pursuant to the Indian Child Welfare Act (ICWA). Appellants argue that res judicata barred the tribe‟s motion to transfer jurisdiction. Alternatively, appellants contend that the “advanced stage” of the proceeding constitutes “good cause” to deny the transfer. Because res judicata did not apply and because the proceeding was not at an “advanced stage,” we affirm.

Montana Supreme Court Decides ICWA Case (Active Efforts/Expert Witness)

April 22, 2011April 21, 2011Matthew L.M. Fletcher

Here are links to the materials in In re I.B.:

Colo. Appellate Court Remands ICWA Domicile Case Back to Trial Court

April 18, 2011April 17, 2011Matthew L.M. Fletcher1 Comment

Here is the opinion in In re the Parental Responsibilities of S.M.J.C.

An excerpt:

In this allocation of parental rights proceeding, the Oglala Sioux Tribe (the Tribe), acting through the Oglala Nation Tiospaye Resource Advocacy Center (ONTRAC), appeals from the order denying its motion to dismiss the proceeding pursuant to 25 U.S.C. § 1911(a), or, in the alternative, transfer the proceeding to the Tribe’s tribal court pursuant to 25 U.S.C. § 1911(b). We conclude that the record does not support the trial court’s finding that the child had been abandoned, and thus, the record does not support the court’s determination that the child’s domicile was that of his caregiver rather than that of his custodial parent. Accordingly, we vacate the order and remand the case to the trial court for further proceedings.