Indian Child Welfare Act

Cal. Court of Appeal — ICWA Notice Violations Not Reversible Error

Matthew L.M. Fletcher

Here is the opinion in In re E.W., from the California Court of Appeal, 4th District, Division 2. An exerpt:

Appellant V.P. (Mother) is the mother of E.W. and P.W. Mother appeals from the juvenile court’s order terminating her parental rights at a hearing held under Welfare and Institutions Code section 366.26 held on May 13, 2008.1 Mother makes a three-fold challenge under the Indian Child Welfare Act (ICWA): 1) DPSS did not provide proper notice to the Indian tribes; 2) DPSS did not receive responses from all of the noticed tribes or from the BIA; and 3) the juvenile court did not make a finding that ICWA did not apply. As discussed below, we find that any error was not prejudicial and so affirm the court’s orders.

Arizona Supreme Court on ICWA Burdens of Proof

Matthew L.M. Fletcher

Here is the opinion in Valerie M. v. Arizona Dept. of Economic Security.

An excerpt:

In this termination case governed by ICWA, the juvenile court did not err by instructing the jury that the state-law grounds for termination must be proved by clear and convincing evidence and that the Indian child’s best interests must be proved by a preponderance of the evidence. We affirm the opinion of the court of appeals.

Utah Court of Appeals Forces Lower Court to Comply with ICWA

Matthew L.M. Fletcher

Here is the opinion in State of Utah in the Interest of C.D. et al. from the Utah Court of Appeals. An excerpt:

The juvenile court’s December 5, 2007 Findings of Fact, Conclusions of Law, and Adjudication Order is affirmed in part, reversed in part, and the case is remanded for further proceedings. We affirm the juvenile court’s ruling that further efforts with Grandfather would be futile. However, we reverse on the placement issue and remand to the juvenile court so that the State can immediately either place the children in accordance with the ICWA’s preferences or create a record demonstrating its attempts to comply and good cause for deviating from those preferences.

Michigan Supreme Court Grants Leave to Appeal in In re Lee

Matthew L.M. Fletcher

This is an ICWA case involving the meaning of “active efforts” under Michigan law. The petitioner is the Michigan Dept. of Human Services, and tribe involved is the Sault Tribe. The docket number is 137653. Here are the opinions from the Michigan Court of Appeals:

in-re-lee-per-curiam-opinion

in-re-lee-partial-concurrence-dissent

From the order granting leave to appeal:

On order of the Court, the application for leave to appeal the October 16, 2008 judgment of the Court of Appeals is considered, and it is GRANTED. The parties shall include among the issues to be briefed (1) whether the term “active efforts” in 25 USC 1912(d) requires a showing that there have been recent rehabilitative efforts designed to prevent the breakup of that particular Indian family; and (2) whether the “beyond a reasonable doubt” standard of 25 USC 1912(f) requires contemporaneous evidence that the continued custody of the Indian child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child before parental rights may be terminated.

Continue reading →

Michigan Indian Legal Services Fall-Winter 2008 Newsletter

Matthew L.M. Fletcher

Here it is — mils-newsletter-fall-2008

It features an article by Karrie Wichtman, a Sault Tribe member and an MSU law student, called “Cooperative Law Enforcement Agreements: An Indian Country Law Enforcement Solution.”

Short Fiction: “Truck Stop” Now Available

Matthew L.M. Fletcher

Here is my short story (available in final form at BEPRESS), published in the UMKC Law Review as part of their Law Stories series, with the following abstract:

Every American Indian person — repeat, every American Indian person — is related to or knows someone or is someone who has been adopted out of or removed from their reservation family. A significant percentage of each recent generation of American Indian people has grown up among strangers, either adopted by non-reservation families or force-fed through a state foster care system. This is, of course, one of the fundamental issues Congress hoped to address when it enacted the Indian Child Welfare Act in 1978. This fictional narrative is my take on what it means for an Indian person to lose their family — and to regain it much, much later.

Colorado Court of Appeals Reverses ICWA Case

Matthew L.M. Fletcher

Here, the Colorado Court of Appeals reversed a trial court decision to apply the ICWA burden of proof because the lower court did not make sufficient findings that the child at issue was an Indian child or eligible for membership with an Indian tribe.

In re People ex rel. L.O.L.

Barbara Atwood on Permanency for Indian Children under ICWA

Matthew L.M. Fletcher

Barbara Atwood has posted “Permanency for American Indian and Alaska Native Foster Children: Taking Lessons fromTribes” on SSRN. This paper is forthcoming from the Capital University Law Review. The abstract:

This paper, presented at Capital University’s 4th Annual Wells Conference on Adoption Law, addresses the implications of the child welfare goal of permanency for children who qualify as “Indian children” under federal law. The federal Adoption and Safe Families Act of 1997 currently promotes permanency for foster children through severance and adoption, despite the policies of the Indian Child Welfare Act of 1978 and the traditions of many North American tribes in which more fluid approaches to parenting and child-rearing are common. With tribal practices as a model, the paper advocates that state courts make greater use of customary adoption, extended family care, and guardianship as a culturally appropriate path to permanency.

Yancey v. Bonner — Complicated ICWA Case

Matthew L.M. Fletcher

Here is the opinion: dct-order-yancey-v-bonner

An excerpt:

Plaintiff is a member of the Muscogee (Creek) Indian Nation of Oklahoma. He is the father of Baby Boy L., who was born out of wedlock on October 4, 2002. In July 2002, the mother, who is not of Indian descent, decided to place the baby for adoption. Shortly after the birth, the Prospective Adoptive Parents took the child to Missouri, where he has since resided. On October 10, 2002, the mother relinquished her parental rights in Oklahoma County. On December 26, 2002, an adoption petition was filed in Cleveland County. The Plaintiff’s parental rights were terminated and he appealed to the Oklahoma Supreme Court, claiming that the trial court erred in holding that the Indian Child Welfare Act, 25 U.S.C. §§ 1901 et seq. (“the Act”), did not apply. The Supreme Court agreed, reversing the termination of the Plaintiff’s parental rights. The Prospective Adoptive Parents then filed a new application to terminate the Plaintiff’s parental rights. In February 2006, the trial court determined that the Act applied but that there was good cause to avoid the placement preferences of that Act, leaving the child in the custody of the Prospective Adoptive Parents. In January 2008, the Plaintiff filed a motion to transfer the case to Tribal Court. In February 2008, this motion was denied and the trial court terminated the Plaintiff’s parental rights, finding that his consent to the adoption was unnecessary. The Plaintiff appealed to the Oklahoma Supreme Court in March 2008 and filed the present complaint in May 2008. The adoption proceeding is still pending in Cleveland County District Court. The Plaintiff argues that the Defendant failed to follow the mandates of the Indian Child Welfare Act and is thereby depriving him of his rights under that statute and the Fourteenth Amendment to the U.S. Constitution.

And more:

Finally, the Plaintiff has a sufficient opportunity to raise his federal claims within the context of the state court proceeding. This prong requires the Plaintiff to demonstrate that state procedural law clearly bars him from raising these claims in the state proceeding. Pennzoil, 481 U.S. at 14; Moore, 442 U.S. at 432. The Plaintiff here has provided no evidence indicating state law bars him from litigating his claims under the Indian Child Welfare Act in state court. On the contrary, the Plaintiff has in fact raised such claims in the past in the state court system and received favorable results. (Dkt. No. 1.) Therefore, the Plaintiff has an adequate opportunity to raise his federal claims in the current state court proceedings.

Michigan COA Case on ICWA

Matthew L.M. Fletcher

The details of the case are recounted here.

The case is here, and captioned Empson-LaViolette v. Crago, and involves Pokagon Band Potawatomi tribal members.