Here is the opinion in In re T.S. An excerpt:
Appellant claims that a statutory exception to adoption applied because the minor’s Indian tribe had identified guardianship as the permanent plan for the minor. (§ 366.26, subd. (c)(1)(B)(vi)(II).) In the published portion of the opinion, we reject this contention.
The New Mexico Supreme Court will hear State v. Marlene C. (link to court’s certiorari page). Here is the lower court opinion.
From the N.M. Court of Appeals opinion:
Mother appeals from an adjudication of neglect. Mother is a member of the Navajo Nation, and the Indian Child Welfare Act of 1978 (ICWA), 25 U.S.C. §§ 1901-1963 (2006), applies to Child. Although the parties to this case agree that ICWA does apply, they disagree about its specific application to issues of preservation and evidentiary requirements. We hold that under the circumstances of this case, ICWA permits Mother to challenge on appeal the sufficiency of the evidence presented at the adjudicatory hearing, and we further hold that the Children, Youth, and Families Department (Department) did not provide sufficient evidence to satisfy the requirements of ICWA. Accordingly, we reverse the adjudication of neglect and remand for further proceedings.
The South Dakota Supreme Court in People ex rel. J.I.H. held that the trial court abused its discretion in finding that the state had proved beyond a reasonable doubt that the rights of a Cheyenne River Sioux Tribe parent should be terminated.
An excerpt:
The trial court’s finding that termination of Father’s rights was the least restrictive alternative and in the children’s best interests hinged on Father’s incarceration. We recognize that “when assessing what options are available to prepare the parent for the return of a child, incarceration narrows the available options.” D.G., 2004 SD 54, ¶ 17, 679 NW2d at 502. Nonetheless, “[t]he decision to terminate requires evidence of sufficient magnitude to convince the trial court that the best interests of the children require the breakup of the family unit .” In re S.S., 334 NW2d 59, 61 (SD 1983) (emphasis added). “If, on a review of the record, it appears that the state’s compelling interest in the well-being and welfare of the children can reasonably be [e]nsured by less intrusive means, we must order that those alternatives first be implemented.” S.R., 323 NW2d at 888.
The record indicates that Grandmother was willing to be a long-term placement option for these children. Her home study had been approved, and only one final requirement remained for her to become a registered foster care provider. Grandmother’s sister also showed interest in being a placement option. Neither of these two possibilities was explored. Father was scheduled for release from jail in December 2008, which was seven months away from the date of the dispositional hearing. Due to his limited incarceration period, legal guardianship would have been a less restrictive alternative until Father was able to care for his children.
Notably, the children’s attorney did not advocate for termination of Father’s rights, and it cannot be ignored that the ICWA expert testified that termination of Father’s parental rights, at that time, was premature. We agree. Based on the circumstances of this case, the trial court erred in terminating Father’s parental rights.
The Indian Child Welfare Act of 1978: Protecting Essential Tribal Interests
University of Colorado Law Review, Vol. 60, No. 131, 1989
Patrice H. Kunesh
University of South Dakota
Tribal Self-Determination in the Age of Scarcity
South Dakota Law Review, Vol. 54, No. 398, 2009
Patrice H. Kunesh
University of South Dakota
Here is the opinion in In re Tamika R. An excerpt:
The respondent, Jackie Robinson, appeals from a Family Court decree finding his daughter Tameka to be dependent and committing her to the care, custody, and control of the Department of Children, Youth and Families (DCYF) with discretion as to placement. He argues that DCYF failed to present expert testimony in compliance with the federal Indian Child Welfare Act (ICWA). Mr. Robinson further argues that the trial justice’s finding of dependency was not supported by clear and convincing evidence. Finally, he submits that the trial justice’s “prosecutorial manner of questioning” deprived him of a fair and impartial trial. After examining the written and oral submissions of the parties, we are of the opinion that the appeal may be resolved without further briefing or argument. For the reasons hereinafter set forth, we vacate the decree of the Family Court.
Here is the opinion — In re Vaughn R
An excerpt:
We conclude that 25 U.S.C. § 1912(f) applies even though the child has been placed outside the parental home before the TPR proceeding is filed. Thus, in this case it applies even though Vaughn has been living with foster parents for several years. Because § 1912(f) applies, the County was required to prove beyond a reasonable doubt, by evidence that includes testimony of “qualified expert witnesses,” that returning Vaughn to Luis “is likely to result in serious emotional or physical damage” to Vaughn. We conclude the record does not provide a reasonable basis for deciding that the county social worker is a “qualified expert witness” within the meaning of § 1912(f). Accordingly, we reverse and remand for a new trial.
Because the correct burden of proof for the showing required by 25 U.S.C. § 1912(d) will arise on remand, we address the issue. We conclude that, unlike § 1912(f), § 1912(d) does not impose a burden of proof on the states, and, in particular, does not require proof beyond a reasonable doubt for the § 1912(d) showing relating to efforts by the County to provide the prescribed services. Therefore, the instruction to the jury that this showing has to be proved by clear and convincing evidence is a proper statement of the law.
Earlier, we posted the district court order in In re C.D.K., invalidating the adoption of a Cherokee child. Here is an update — the court has denied the motion to return the child, as well as motions from the respondents to stay the order. Instead, the court denied that continuing jurisdiction exists, and ended the matter altogether. In re CDK Order on Writ of Enforcement
An excerpt:
This matter is before the Court on Petitioner’s Motion for Writ of Execution and Motion to Expedite a Hearing on the Return of Custody, and on Respondents’ Motion for Stay of Execution Pending Appeal and Approval of Supersedeas Bond. Petitioner, in her Motion for Writ, requests that her biological child, C.D.K., be returned to her immediately, pursuant to her reading of the Court’s June 4, 2009 Order granting Summary Judgment. Petitioner also requests, in her Motion to Expedite, that the Court hold a hearing to determine return of custody. Respondents request a stay of execution pending their appeal to the Tenth Circuit. Because the Court finds that it has no further jurisdiction in this case, and because the Court’s previous orders do not provide sufficient grounds for immediate return of C.D.K. to Petitioner, the Court will deny Petitioner’s Motions. Because the Court does not believe that Respondents are entitled to an injunction of state court proceedings pending appeal, the Court will deny Respondents’ Motion, as well.
Here is the opinion from the California Court of Appeals (3rd District) in In re K.P.
An excerpt:
We decline to extend the ICWA to cover an allegation of membership in a tribe not recognized by the federal government. Neither HHS nor the juvenile court was under a duty to comply with the notice provisions of the ICWA.
The Montana Supreme Court upheld the lower court’s acceptance of testimony from an ICWA expert proferred by the state.
Here is the opinion in In re Trever I. An excerpt:
The father of Trever I. appeals from a judgment of the District Court (Lewiston, Beliveau, J.) terminating his parental rights. The father argues that the court (1) erred when it terminated his parental rights following the Department of Health and Human Services’s (Department) alleged failure to sufficiently investigate the father’s claim of Indian heritage and the applicability of the Indian Child Welfare Act of 1978 (ICWA), 25 U.S . C.S. §§ 1901-1963 (2004), and (2) abused its discretion when it denied his motion to continue the termination hearing. We affirm the judgment.
Turtle Talk 
You must be logged in to post a comment.