Indian Child Welfare Act

Mich. COA Decides ICWA-Related Case

Matthew L.M. Fletcher

The opinion in In the Matter of Coyle is here. The Court of Appeal concluded that ICWA’s tribal notice requirements did not apply. An excerpt:

Finally, respondent argues that petitioner should have notified the Cherokee tribe, and there was insufficient evidence that any tribe was notified. ***

In the present case, respondent stated during the preliminary hearing that her grandparents were Cherokee Indians. However, she never mentioned the Cherokee tribe again and never objected to references to the Chippewa Tribe of Sault Ste. Marie in several later hearings. Her statement that her father tried to get her grandparents’ tribe involved in 2003, followed by references to the Chippewa tribe trying to get involved in 2003, strongly indicated that her grandparents’ tribe was actually the Chippewa and she was mistaken when she called it Cherokee. Respondent did not give the trial court reason to believe her children might actually be members of a Cherokee tribe, in light of her repeated failure to object to references to the Chippewa and failure to request that another tribe or the Bureau of Indian Affairs be notified. Respondent also did not question petitioner’s assertions that the Chippewa tribe was contacted. Petitioner’s unchallenged assertions constitute sufficient evidence that notice occurred. The trial court did not commit any error requiring reversal.

Alaska Supreme Court Decides ICWA Case

Matthew L.M. Fletcher

The Alaska Supreme Court affirmed the termination of parental rights of a parent from the Native Village of Barrow. Here is the opinion in Marcia V. v. State of Alaska.

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.

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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.