Colorado Supreme Court On Inquiry and Notice

Unfortunately the Colorado Court did not continue its strong position on notice they had in the 2006 ex rel B.H. case.

Thus, as the divisions in A-J.A.B. and Jay.J.L. aptly noted, B.H. “required notice to tribes under a different criterion than the one in effect today.” A-J.A.B., ¶ 76, 511 P.3d at 763; Jay.J.L., ¶ 32, 514 P.3d at 319. As such, B.H. is inapposite.

¶56 In short, while assertions of a child’s Indian heritage gave a juvenile court “reason to believe” that the child was an Indian child under Colorado law in 2006, see B.H., 138 P.3d at 303–04 (emphasis added), the question we confront in this case is whether such assertions give a juvenile court “reason to know” that the child is an Indian child under Colorado law in 2022, § 19-1-126(1)(b) (emphasis added). We agree with the divisions in A-J.A.B. and Jay.J.L. that mere assertions of a child’s Indian heritage (including those that specify a tribe or multiple tribes by name), without more, are not enough to give a juvenile court reason to know that the child is an Indian child. And, correspondingly, to the extent that other divisions of the court of appeals have expressly or impliedly reached a contrary conclusion, we overrule those decisions.

Opinion Here 22SC29

The Indian Law Clinic at MSU represented the tribal amici in this case, the Ute Mountain Ute and Southern Ute Indian Tribes.

Reported Inquiry Case from California [ICWA]

E077791

So for the first time since 2015, I’m giving myself permission to only read the reported ICWA cases rather than all of the unreported ones. So what does California do? Start reporting way more cases! Five in this first quarter (as opposed to 1 in 2021).

This case itself notes that this is not a particularly unique, but that by reporting it, just the reporting might lead to compliance.

We publish our opinion not because the errors that occurred are novel but because they are too common. Child protective agencies and juvenile courts have important obligations under ICWA. Failing to satisfy them serves only to add unnecessary uncertainty and delay into proceedings that are already difficult for the children, family members, and caretakers involved. Delayed investigation may also disadvantage tribes in cases where it turns out ICWA does apply, as their opportunity to assume jurisdiction or intervene will come at a late stage in the proceeding.

Unfortunately, I don’t think just reporting a case will lead to compliance, especially when this is the final result:

We conditionally reverse the section 366.26 orders. On remand, the juvenile court shall (1) direct CFS to comply with the inquiry and notice provisions of ICWA and sections 224.2 and 224.3 and update the court on their inquiry and the tribes responses and (2) determine whether ICWA applies. If the court determines ICWA does not apply, the orders terminating parental rights shall be reinstated and further proceedings conducted, as appropriate.

(emphasis added)

I haven’t crunched the numbers, but I am not convinced conditional reversal helps with compliance. Vivek Sankaran made this argument in the In re Morris case here in Michigan, and the sheer numbers in California indicate conditional reversal doesn’t seem to do much to change practice. I’m not sure reporting the case will change that. I still believe we should be reporting far more of the ICWA cases than we currently do, given that only about 20% of total ICWA appellate cases are reported.

North Carolina Supreme Court on Reason to Know [ICWA]

59A21-1

DSS and the guardian ad litem for Carrie (GAL) disagree, arguing that respondent
conflates the existence of or possibility of a distant relation with an Indian with
reason to know that a child is an Indian child.

States and courts are really struggling with how much information from a parent gives the court reason to know there is an Indian child in the case–I think this is especially since the regulations now make clear that if you do have reason to know, you must treat the child as an Indian child until demonstrated otherwise. At the same time, there is real issue with lack of nuance on this issue–when a trial court takes the facts from a case like In re Z.J.G. and treats them the exact same way as the facts in this case, which is essentially what happened, then states really have to go send notice for both, which is what the WA Supreme Court held. You don’t do the reverse, which is what the North Carolina Supreme Court has done in this case.

Now, I got an email from California recently and there is a lot of discussion there about the state’s laws there distinguishing between “reason to believe” and “reason to know.” There are a LOT of bumps with implementation, but they are essentially requiring a level, or duty, of inquiry and further inquiry from their state workers to ensure they aren’t missing ICWA cases.

I’d love to get into why is the GAL arguing against the application of ICWA or ensuring the child has the information she may need to be a tribal citizen, but I do have to do some other things today . . . https://turtletalk.blog/2013/11/25/fletcher-fort-indian-children-and-their-guardians-ad-litem/

ICWA Inquiry Case from Franklin Co. Ohio

A county with at least one awful case has a much better inquiry decision here. Turns out this is not enough, judges:

[Judge]: The question was posted as to whether or not the
requirements of ICWA had been met and hopefully, someone
has that answer for us.

[FCCS Attorney]: We did locate a log in which intake has asked
[appellant] if she participated with any Cherokee tribal
affiliation or membership. The answer was in the negative. And
then on June 15, 2018, subsequent to the complaint being filed
where [appellant] alleged some kind of Cher — Cherokee – * * *
heritage, [appellant] was put under oath on the record as noted
under [the juvenile court magistrate’s] order and she did state
that she did — was not eligible for membership and therefore,
no ICWA notifications would be required under the law. And at
that point the prosecutor had proceeded on the
adjudication/disposition as those notifications weren’t
required. But we did locate that; that is all in the record.
[Appellant] was put under oath again on June 15, 2018 and all
of that testimony is on the Court’s record. Thank you.

[Judge]: Thank you. Not being familiar with the whole ICWA
process, I trust that satisfies everyone’s concerns in regard to
ICWA?

[Appellant’s counsel]: Yes, Your Honor.

[Judge]: Very good then.

Pretty rare to be ok with admitting you just don’t know how to apply/aren’t familiar with a 40 year old law.

As such proper inquiry was not made here, we expressly make no
determination as to whether the juvenile court knows or has reason to know pursuant to 25
C.F.R. 23.107(c). We also expressly make no determination as to whether the children are
Indian children as defined in 25 U.S.C. 1903. Nevertheless, given the potential for
invalidation of a custody determination, we sustain the third assignment of error

California Inquiry and Notice Case [ICWA]

Ok, remember when I said this morning the California inquiry and notice process is in a . . . growth process? Here is another example. This case disagrees with the really not great In re Austin J. case and is from the same appellate district

In re T.G. returns to the low bar for notice and inquiry California appellate courts have traditionally adhered to. 

We agree the Department failed to adequately investigate Tamara’s claim of Indian ancestry and the juvenile court failed to ensure an appropriate inquiry had been conducted before concluding, if it ever actually did, ICWA did not apply to these proceedings. In reaching this result, we disagree with the holding in In re Austin J. (2020) 47 Cal.App.5th 870, 888-889 (Austin J.) that amendments enacted by Assembly Bill No. 3176 (2017-2018 Reg. Sess.) (Assembly Bill 3176) were intended to limit the Department’s robust duty of inquiry. Accordingly, we conditionally reverse the orders for legal guardianship and remand the matters to allow the Department and the juvenile court to rectify their errors and to take all other necessary corrective actions.

So again, if you are practicing in California, this is a vital area to be following. If you are not practicing in California, I think it’s worth seeing how the new changes to the state laws shake out on appeals this year (2021). If you are a tribal attorney, know that California is supposed to be contacting a tribe very early in the proceedings, even if it is not with a formal notice packet. 

Notice Case out of California [ICWA]

If you find the current published notice and inquiry cases out of California particularly confusing, join the club (and I’ve been trying to sort them out!). I think the important thing for tribal attorneys to know is that California is trying to do very early contact during the inquiry phase before they send formal notice. For some tribes this is very welcome, and for others, it’s a big change in practice. However, this does mean that California is trying to formalized very specific steps into law–from initial inquiry, reason to believe, further inquiry, reason to know, notice (I think). This means California case law probably won’t be particularly useful in this area in other state appeals.  

Notice Case out of California [ICWA]

Since April, the California courts of appeal have been wrestling with California’s new law defining “reason to know” from ICWA’s section 1912 and “reason to believe” (state law standard). In addition, the department has been regularly petitioning to make cases reported rather than unreported. Since April with the In re Austin J. case, California courts have been reshaping their very low bar for notice to tribes into a much higher one, with the caveat that the California standard of “reason to believe” does require contact with tribes though not necessarily formal notice. Given California’s outsized role in notice and inquiry ICWA cases, this is a trend that bears watching, with the understanding this is based on California state law, and not the federal ICWA.

Here is In re M.W., decided on May 11. The Department petitioned for publication on May 15 and it was published on June 5. Under the reason to believe standard, the social worker,

The report documented the social worker’s contact with the 12 tribes by telephone, fax, e-mail, and/or mail, the name of the designated agent for each tribe, the dates of attempted contact with each designated agent (all between May 15 and June 4, 2019), and that each tribe was provided with the minor’s “ICWA Family Tree.” As of the date of the report, four of the tribes had confirmed the minor was not an Indian child. As of the July 10, 2019 hearing, six additional tribes had confirmed the minor was not an Indian child, and the two remaining tribes (the Navajo Nation and the White Mountain Apache Tribe) had acknowledged contact but had not yet provided a definitive response.

I am curious to know how out of state tribes are feeling this system is working, given that while California may change its ways, tribes are generally set up to receive the paperwork to confirm a family’s tribal membership, and we already know that informal phone calls to confirm or deny a child’s eligibility can be problematic. Early outreach is great, if it works to give tribes MORE information and not less.

Inquiry and Notice Case out of California (Published!)[ICWA]

B300468

At the detention hearing, Father said he had Native American Indian heritage, but he was unable to identify the correct tribe. Father believed his heritage was through his paternal grandmother. He provided CWS and the juvenile court with the names of his father and grandmother.

***

Father argues CWS failed to comply with ICWA requirements and the juvenile court did not make findings on whether ICWA applied. He contends the court was “not authorized to proceed with foster care placement until ICWA notice has been sent and received.” He is correct.

***

Here, CWS had reason to know the children might be Indian children. Accordingly, CWS was required to comply with ICWA notification requirements at least 10 days before the disposition hearing, because the hearing was an involuntary proceeding in which CWS “was seeking to have the temporary placement continue[d].” (Jennifer A., supra, 103 Cal.App.4th at pp. 700-701; 25 U.S.C. § 1912(a).)

This is very different from the reasoning applied by the Washington Court of Appeals here.

California Misinformation in an ICWA Case

Opinion

There are too many unpublished cases to post here, but this one including the following quote, which I think is important for understanding how few people in the child welfare system have a handle on ICWA’s protections, even today. I’m sure all the tribal attorneys are surprised to find out they might have to appoint a parent an attorney:

The social worker informed Mother that if she was “found to have affiliation with the tribes, she could be appointed an attorney from the tribes and placement of the children could change.”

Column on Wayne County and ICWA in Chronicle for Social Change

Here

Some notes.

It’s a federal requirement to inquire about a child’s tribal citizenship regardless of state law. There are eight states with comprehensive state ICWA laws (the article is missing California and Wisconsin), and that doesn’t count states that have incorporated the regulations into law (Louisiana) or have other elements of ICWA in their laws.

I know the lawyer he is referring to–s/he did not drive 300 miles for every hearing, but when no one would call the tribe back or answer the phone for a hearing s/he sure did.

ICWA is a remedial statute designed to change state practice, not tribal.

It might be worth mentioning that Michigan has twelve federally recognized tribes, and while the total population of Native children might be small, we are still putting Native children in foster care at disproportionate rates–that said, it’s difficult to tell given the issues with our data collection.

And finally, if you are wondering what ICWA/MIFPA inquiry looks like in Wayne County, here is a colloquy from an unpublished case four years ago:

The Court: All right, the petition is authorized. The children have been
placed with relatives. What else? I guess— is that it? Did anyone ever ask
is there any . . . American Indian heritage in this family? American Indian
heritage?
Ms. Safran (attorney for respondent [parent]): Do you have any Indian heritage in your family?
The Court: Cherokee, Chippewa.
Ms. Safran: There might be some grand— on the grandmother’s side,
what was it? Some time— some type; attenuated.
Ms. Trott (attorney for petitioner [state]): Ms. Topp was told no at the
other—
Ms. Safran: Well, we didn’t have all the parties.
Ms. Topp (case worker): I talked to [respondent], as well, in the police station[,] and I was told no.
Ms. Safran: She doesn’t think—
The Court:  You don’t have any kind— are you sure it’s American, or, any
idea what we’re talking about? I mean, what kind of Indian? Cherokees,
Chippewa? I mean, there’s a whole bunch.
Unidentified speaker: I don’t— I don’t know; I can ask.
The Court: And . . . what relative? Grandma? Great-grandma?
Ms. Safran:  Your Honor, can we get a date because . . . they want me in
[Judge] Slavens[’ courtroom] and I can’t believe it.
The Court:  ­You’ve got to wait just one second. All right, you can investigate and see. That’s pretty distant; great-grandma is pretty far back. So, I’m
not gonna demand that we send notice.
Ms. Trott: This is on the paternal side? Or maternal? Of which father?
The Court: On the mother’s side or father? It better be a maternal because
right now— all right. You have the right to have this heard by a referee as
to all the children . . . or by a judge with or without a jury, and, of course,
continued right to an attorney at all hearings. We’re setting this for trial?
Ms. Trott:  Yes.

In re Harrell, No. 316067, 2014 WL 465718, at *6-7 (Mich. Ct. App. Feb. 4, 2014)