Indian Child Welfare Act

Minnesota Court of Appeals Decides Two ICWA-Related Cases

January 26, 2011Matthew L.M. Fletcher1 Comment

A10-1274 In the Best Interest of: M. R. P.-C., Minor Child.
In re the Matter of: Kathryn Michelle Pollard, et al., petitioners, Respondents, vs. Faye Michelle Crowghost, co-respondent, Appellant; Anthony Patrick Pollard, Co-Respondent.
Dakota County District Court, Hon. Judge Rex D. Stacey.
The district court has an affirmative obligation to inquire into whether the Indian Child Welfare Act (ICWA) applies to a custody determination when the facts suggest that the subject child may be an Indian child as defined by 25 U.S.C. § 1903(4) (2006).
Reversed and remanded. Judge Jill Flaskamp Halbrooks.

A10-1390 In the Matter of the Welfare of the Child of: R. S. and L. S., Parents.
Fillmore County District Court, Hon. Robert R. Benson.
I. The transfer-of-jurisdiction provisions of the Indian Child Welfare Act, 25 U.S.C. § 1911(b) (2006), and the Minnesota Indian Family Preservation Act, Minn. Stat. § 260.771, subd. 3 (2010), do not authorize or prohibit the juvenile court’s transfer to tribal court of a preadoptive-placement proceeding involving an Indian child who is not domiciled or residing within the tribal reservation.
II. Minnesota Rule of Juvenile Protection Procedure 48.01, subdivision 3, permits the juvenile court to transfer to tribal court a preadoptive-placement proceeding involving an Indian child who is not domiciled or residing within the tribal reservation.
Affirmed. Judge Natalie E. Hudson.

An excerpt:

The record supports the trial court’s findings because the most critical components of father’s treatment plan required him to participate in mental health therapy, have a substance abuse evaluation and follow all treatment recommendations, submit to random urinalysis (UA) testing, take parenting classes, and have regular visitation with the child. Although he had a mental health assessment, he refused to participate in therapy because he did not believe he needed it. Moreover, he did not have a substance abuse evaluation, did not submit random UAs, did not attend parenting classes, and had only two visits with the child, which the caseworker testified did not go well. And although the department made referrals to treatment providers and provided the other services father needed to comply with his plan when he lived in Leadville, he did not take advantage of those services.

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Idaho Supreme Court Decides Case re: Indian Child

November 28, 2010Matthew L.M. Fletcher

Here is the opinion in In re Doe, involving members of the North Fork Rancheria of Mono Indians.

Calif. Court of Appeals Decides ICWA Notice Case

November 20, 2010November 19, 2010Matthew L.M. Fletcher

Here is the opinion in In re C.B.

An excerpt:

We reverse for limited purposes, specifically to allow adequate notice to be provided to the Seneca tribes and to allow the court to determine, under the proper standard, the applicability of the parent-child relationship exception to termination of parental rights.

Colorado Appeals Court Remands ICWA Case for Failure to Document Compliance with Notice Requirements

October 31, 2010October 30, 2010Matthew L.M. Fletcher

Here is the opinion in In re E.C.

An excerpt:

For these reasons, the case is remanded for further proceedings on the ICWA issue. If the ICWA has been complied with, then the order shall stand affirmed, subject to any appeal by father of the ICWA determination. If the ICWA has not been complied with, then the court shall conduct any further proceedings necessary to determine whether the child is an Indian child. If she is determined not to be an Indian child, or if she is determined to be an Indian child and the tribe chooses not to intervene, then the order shall stand affirmed. If she is found to be an Indian child and the tribe seeks to intervene, then the order shall be deemed vacated. See People in Interest of N.D.C., 210 P.3d 494, 500 (Colo. App. 2009).

Michigan COA Decides ICWA Challenge re: Active Efforts and Tribal Court Transfer

October 22, 2010Matthew L.M. Fletcher

… and a challenge to the expert witness.

Here is the unpublished opinion in In re Swinson.

NARF Press Release on the Supreme Court’s Denial of Cert in the Kaltag Tribal Council Case

October 5, 2010Matthew L.M. Fletcher

Here: Kaltag press release

Federal Court Interpretation of 25 U.S.C. 1914 and Ineffective Assistance of Counsel

October 1, 2010Matthew L.M. Fletcher1 Comment

An effort to persuade a federal court to review a state court action in an Indian Child Welfare Act case partially succeeds in Kirk v. Baldovinos (N.D. Cal.):

Kirk DCT Order

Alameda County Motion to Dismiss

Kirk Opposition

Alameda County Reply

California Response to Order to Show Cause

The only federal claim remaining is the ineffective assistance of ICW counsel:

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