Indian Child Welfare Act

Minnesota COA Orders Trial Court to Transfer ICWA Case to Leech Lake Tribal Court

Matthew L.M. Fletcher

Here is the unpublished opinion in In re R.L.Z. (Minn. App.). An excerpt:

On appeal from the district court’s denial of a tribe’s motion to transfer this proceeding to terminate parental rights to tribal court, appellant Leech Lake Band of Ojibwe (the Band) argues that good cause to deny its motion did not exist because: (a) the Band filed its motion promptly after receiving notice of the proceedings, which were not at an advanced stage at that time; (b) the record before the district court did not indicate that transfer would create undue hardship on the parties or the witnesses; and (c) the district court improperly based its denial of the Band’s motion on the child’s best interests. We reverse.

Nebraska Court of Appeals Decides ICWA “Active Efforts” Case

Matthew L.M. Fletcher

Here is the court’s opinion in In re Louis S. An excerpt:

Chad does not appeal the § 43-292 statutory grounds for termination of parental rights, or that such termination was in the children’s best interests. His grounds for appeal lie strictly with the additional requirements of the ICWA–active efforts and proof  of serious emotional or physical harm. As stated previously, we find that active efforts were made and that the children would suffer serious emotional or physical harm if Chad retained custody. Therefore, we affirm the decision of the juvenile court terminating Chad’s parental rights to these children.

Ninth Circuit Requires Alaska Courts to Provide Full Faith and Credit to Native Villages’ ICWA Judgments

Matthew L.M. Fletcher1 Comment

Here is the opinion in Kaltag Tribal Council v. Jackson, unpublished. This is one the cases highlighted by NARF lawyers in their opposition to Sarah Palin (here). An excerpt:

Plaintiffs-Appellees Kaltag Tribal Council (“Kaltag”), Selina Sam and Hudson Sam (collectively, “Kaltag plaintiffs”) filed this case in district court against Karleen Jackson, Bill Hogan, and Phillip Mitchell, employees of the State of Alaska, Department of Health and Human Services. The Kaltag plaintiffs alleged that an adoption judgment issued by the Kaltag court is entitled to full faith and credit under § 1911(d) of the Indian Child Welfare Act (“ICWA”), and that the Alaska employees were required to grant the request for a new birth certificate. The district court granted the Kaltag plaintiffs’ motion for summary judgment and denied the Alaska employees’ summary judgment motion. The Alaska employees appeal. We have jurisdiction under 28 U.S.C. § 1291 and we affirm.

Michigan COA Decides ICWA Case — Conditional Remand

Matthew L.M. Fletcher

Here is the unpublished opinion in In re Toia. An excerpt:

Under the circumstances, and because we conclude that the trial court properly terminated respondents’ parental rights under Michigan law, we conditionally affirm the trial court’s termination order, but remand for further proceedings to ensure compliance with the ICWA notice provisions and a determination whether the ICWA applies, consistent with the procedure prescribed in In re IEM, supra at 450. If the trial court determines that appropriate notice was provided and that the ICWA does not apply, the termination orders may stand. However, if the trial court determines that the ICWA does apply, the trial court shall conduct such further proceedings as are consistent with the act.

ICWA Applies Even If Adoptive Parent is the Only Indian

Matthew L.M. Fletcher

Here is the opinion in B.R. v. G.R. from the California Court of Appeals, First District. Interesting case….

An excerpt:

This appeal presents the issue of whether the Indian Child Welfare Act (25 U.S.C. § 1901 et seq.) (ICWA), applies when the minors’ presumed father in a juvenile dependency proceeding alleges that his adoptive father has one-quarter ancestry in a federally recognized Indian tribe. We hold that the ICWA notice provisions do apply in these circumstances, and conditionally reverse the juvenile court’s order terminating parental rights so that notice of the proceedings may be given to the tribe in question.

Oregon Court of Appeals Decides ICWA Case Involving Yurok Children

Matthew L.M. Fletcher

Here is the opinion in In re J.S.B., where the Oregon Court of Appeals reversed a trial court decision terminating parental rights. An excerpt:

The issue then is whether, under the circumstances of this case, the juvenile court was required at the August hearing to make the assessments required by ORS 419B.476(2)(a).  Mother, for her part, sought reunification at both the June and August hearings.  The juvenile court, apparently relying on its earlier findings in the June hearing, did not undertake to reconsider mother’s circumstances for purposes of reunification at the time of the August hearing, even though that opportunity through mother’s advocacy presented itself.  We conclude, in light of the policies of the ICWA to afford an opportunity for reunification at every dispositional step that could result in contributing to the permanent removal of children subject to its protections, that it was incumbent on the juvenile court at the August hearing to either make new findings under ORS 419B.476(2)(a) or to find that the circumstances regarding reunification had not changed since the last hearing held under ORS 419.476(2)(a).  Otherwise, the policies articulated in 25 USC sections 1901 and 1902 could be frustrated in a hearing held pursuant to ORS 419.476(2)(b) and (c) by a court’s reliance to deny reunification on circumstances that no longer exist at the time of the instant hearing. For that reason, we conclude that the August 2008 judgments are also defective and must also be reversed so that the juvenile court can make the determinations that ICWA contempates.

Nebraska Court of Appeals Affirms Denial of Transfer of ICWA Case to Tribal Court

Matthew L.M. Fletcher1 Comment

Here is the opinion in In re the Interest of Leslie S. An excerpt:

The juvenile court found good cause to deny the motion to transfer, relying on the facts that a previous motion to transfer had been denied, that the case had advanced to the stage where a motion for termination of parental rights had been filed, and that the court had jurisdiction over multiple cases involving several of the children. The court also found that the transfer would not be in the children’s best interests.

Upon our de novo review, we are unable to say that the juvenile court abused its discretion in denying the motion to transfer. One of the stated circumstances set forth in the non-binding regulations noted above is clearly present in this case; namely, the advanced stage of the proceeding. Francis did not file the motion to transfer until well after 2 years following the filing of the juvenile petition, during which time Francis did very little to participate in the case. At the time of the hearing on this motion to transfer, proceedings had begun to terminate both parents’ parental rights. In addition, the fact that other cases involving some of the children were to remain in the juvenile court is essentially a forum non conveniens matter, which is a valid basis for good cause to deny transfer. See In re Interest of Brittany C. et al., 13 Neb.App. 411, 693 N.W.2d 592 (2005). We observe that because Francis is the biological father of only Iyn and Rena, he did not have standing to seek a transfer relative to Leslie, Glory, and Crystal. Neither the Tribe nor Kinda has appealed from the juvenile court’s decision. Accordingly, our opinion applies only to the ruling relative to Iyn and Rena.

Alaska Supreme Court Decides ICWA Case

Matthew L.M. Fletcher

Here is the opinion in Jon S. v. State of Alaska, Dept. of Health and Social Services. An excerpt:

A father challenges a superior court order finding his daughter, an Indian child under the Indian Child Welfare Act (ICWA), to be a child in need of aid and terminating his parental rights. We conclude that the record contains sufficient evidence to support the superior court’s findings that: (1) the daughter was a child in need of aid; (2) the father failed to remedy the conduct or conditions placing her at harm; (3) the state met its active efforts burden; (4) returning the daughter to the father would beyond a reasonable doubt be likely to cause her serious emotional harm; and (5) termination of parental rights was in the best interests of the child. We therefore affirm.

And here is the court’s conclusion in relation to the ICWA “active efforts” requirement:

We analyze the state’s active efforts based on its “overall handling of the case,”  including efforts by Jon’s parole officers. Because the record and testimony show that OCS and Jon’s parole officers made active efforts throughout 2005 and 2006, actively continued trying to locate Jon between October 2006 and April 2007, provided visitation with Melissa once Jon was located again, and actively pursued placement with Jon’s family from October 2006 through November 2007, we hold that the superior court did not clearly err in finding that the state made active efforts.

Maryland High Court Decides ICWA Active Efforts Case

Matthew L.M. Fletcher

By a 5-2 margin, the Maryland Court of Appeals in In re Nicole B. (opinion) refused to overturn a lower court decision applying the “reasonable efforts” standard instead of the standard articulated in the Indian Child Welfare Act, “active efforts.” An excerpt from the dissent:

I disagree with the majority’s decision to avoid answering the certiorari question in this case, i.e,whether “reasonable efforts” as used in the Federal statute, differ from “active efforts” as used in the Family Law Article. Second, I do not believe it is appropriate for this Court to usurp the role of the trial court and to make first level findings of fact. The trial court used the wrong standard when it concluded that the Department made reasonable efforts to achieve reunification with the children’s parents. Accordingly, I would hold that the ICWA requirement that active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family have proved unsuccessful is a different standard than that set out in § 5-525 of the Family Law Article of the Maryland Code which requires that reasonable efforts have been made.

Minnesota Court Vacates Transfer of ICWA Case to Tribal Court

Matthew L.M. Fletcher

Here is the opinion in In re Welfare of R.A.J., in which the Minnesota Court of Appeals affirmed a trial court’s vacature of its own order to transfer a case to tribal court. The state court had denied efforts by the Leech Lake Band to transfer the case to tribal court, only transferring the case when the tribe agreed to certain conditions. We wonder whether a state court can place conditions outside of the scope of ICWA in order to agree to transfer a case to tribal court, a case it probably should transfer in the first place. We also wonder how a state court can re-acquire jurisdiction under ICWA without tribal consent.

The court’s syllabus:

The district court had jurisdiction to vacate its order transferring a child-welfare proceeding to tribal court before tribal court proceedings commenced, when the district court found that “misrepresentations were intentionally and wrongfully advanced [to the district court] to gain [its] agreement to transfer” the proceeding.

And an excerpt detailing the “misrepresentations” leading to the vacature of the court’s transfer:

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