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And finally, if you are wondering what ICWA/MIFPA inquiry looks like in Wayne County, here is a colloquy from an unpublished case four years ago: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

 

ICWA/MIFPA Case from the Michigan Court of Appeals

We are wrapping up a training in Montana where every person in the room answered the ICWA pop quiz question: “Do ICWA protections apply to non-Native parents of Indian children?” correctly. Luckily the Michigan Court of Appeals answered it correctly as well. The Court of Appeals also provides an excellent discussion of why Adoptive Couple v. Baby Girl did not apply to this, and similarly situated cases. There is a lot of useful language in this case for attorneys who continue to run into these issues in trial court across the country.

In re Beers/LeBeau-Beers

The trial court applied the appropriate heightened standards or
burdens when terminating respondent-mother’s parental rights, but it failed to apply them when terminating the parental rights of respondent-father, ostensibly because the Indian heritage of the children is solely through their mother’s bloodline. Respondent-father argues that ICWA and MIFPA standards govern the termination of his parental rights, considering that TB is his biological child and an Indian child, regardless of respondent-father’s personal heritage. We agree and conditionally reverse the termination of respondent-father’s parental rights to TB and remand for proceedings consistent with ICWA and MIFPA, as well as MCR 3.977(G).

In addition, however, the Court correctly analyzed whether Adoptive Couple v. Baby Girl applied to this case, and raised this issue sua sponte “whether the heightened standards of ICWA, MIFPA, and MCR 3.977(G) should apply to the termination of respondent-father’s parental rights when he never had legal or physical custody rights in regard to TB.”:

Given the equivocal nature of Justice BREYER’s concurrence [in Adoptive Couple], it cannot truly be said that a majority of the United States Supreme Court created an inflexible rule for purposes of “continuing custody” analysis under § 1912(f), as well as the analysis of § 1912(d). And even assuming the contrary, it certainly is not clear whether the Supreme Court would impose the rule based solely on whether a parent had physical custody, in the strictest sense of the term under the law, where a custodial-like environment existed on a practical level absent any technical custodial rights.

***

We hold that under the particular facts of the instant case, which are entirely dissimilar to those in Adoptive Couple where the father effectively abandoned the child from birth and even in
utero, the beyond-a-reasonable-doubt standard applies to the termination of respondent-father’s parental rights, although he never had legal or physical custody rights, as those terms are legally employed. When DHHS’s petition was filed in August 2015 and for a period thereafter, respondent-father, respondent-mother, and TB lived together as a familial unit wherein respondent-father was providing some care and custody for TB. And petitioner was providing
reunification services. The family unit dissolved only when TB was removed by court order, although respondents remained together. The removal of TB discontinued the custodial arrangement that had existed with respect to both respondents and TB, if not in law, in practice.

Consent to Termination of Parental Rights Decision in Michigan Supreme Court

Opinion here

The ICWA Appellate Clinic co-represented the tribe in this case.

This case involves a complicated question of state statute interpretation regarding a voluntary consent to a termination of parental right in the face of a state termination petition. In this case, the dad consented to termination before the termination hearing. The children were later placed in a tribal-approved foster placement, and the dad withdrew his consent to termination. The question was whether dad could do that under Michigan statute.

None of the protections in MCL 712B.15, [mirroring ICWA’s main protections in an involuntary proceeding] which are designed for contested and adversarial proceedings, remains relevant once a parent voluntarily releases his or her rights under MCL 712B.13. When the court accepted Williams’s release, and the proceedings went from adversarial to cooperative, the protections of MCL 712B.15 did not apply.

However, the Court also held,

That is, Williams may withdraw his consent, but because he is still subject to MCL 712B.15, DHHS may refile a termination petition. MCL 712B.15. And, under MCL 712B.13(3), a parent who consents during an involuntary termination proceeding is not entitled to “the return of the Indian child” to him or her.

Instead, the child returns to the position the child was in before his or her parent consented to the termination of parental rights. Williams’s children were in foster care when he consented to the termination of his parental rights, his children will remain in foster care, and Williams will be once again subject to the procedures and protections of MCL 712B.15. DHHS may proceed with its termination case if it chooses, and if DHHS can satisfy the heightened requirements of MCL 712B.15, Williams’s parental rights can be terminated.

Briefing on the case is here.

ICWA QEW Opinion in the Minnesota Supreme Court

Opinion

The question of what Qualified Expert Testimony (QEW) actually is under ICWA comes up all the time. The Minnesota Supreme Court did a pretty deep dive into what it means in terms of termination of parental rights, and concludes,

Read straightforwardly, the statute provides that to terminate parental rights, a district court must determine that “continued custody of the child by the parent . . . is likely to result in serious emotional or physical damage to the child.” 25 U.S.C. 1912(f). This determination must be supported by evidence “beyond a reasonable doubt,” and part of the supporting evidence must be QEW testimony. Id. The statute is unambiguous.

. . .

The parents . .  suggest that the statute requires that the QEW testify specifically that “continued custody . . . is likely to result in serious emotional or physical damage.” 25 U.S.C. § 1912(f).  . . . If Congress wanted to impose a requirement that the expert utter a “magic phrase,” it could have done so. But as written, neither ICWA nor MIFPA require a specific QEW opinion that “continued custody . . . is likely to result in serious emotional or physical damage.” 25 U.S.C. § 1912(f); Minn. Stat. § 260.771, subd. 6(a). S

Accordingly, we conclude that in a termination proceeding governed by ICWA and MIFPA, a court cannot terminate parental rights unless it determines that evidence shows, beyond a reasonable doubt, that continued parental custody of the child is likely to result in serious emotional or physical damage to the child. That determination must be supported by QEW testimony.

Because the QEW admitted on the stand that she focused most of her testimony and affidavits on the mother (who was a tribal member) and not the father (who not an enrolled tribal member in any tribe), the court held her testimony did not support the termination as to father.

I get questions pretty frequently about QEW, QEW training, and whether a person should be a QEW. My answer is almost always the same–a QEW must be comfortable stating that the parental rights should be terminated, or that these children should be put in foster care. That information is what is required by statute, and why the state (or party seeking removal/termination) must put a QEW on the stand. The QEW is ultimately there to testify against the parents, regardless of any other testimony they may proffer.

Dismissal of the Watso v. Piper Case

There have been a long series of federal cases in Minnesota involving tribal court child welfare jurisdiction over non-member children residing on the reservation (Watso, Nguyen). Most recently, Watso v. Piper was dismissed. The magistrate’s decision (that was upheld), is particularly well written.

Magistrate Report

Memorandum Opinion and Order

Watso v. Jacobson here

Americans for Tribal Court Equality here

Bill to Allow Tribes Access to Information Needed for Active Efforts in Passes in Michigan

Here is SB 616.

Here is the press release.

Here is some news coverage.

This bill was driven entirely by the tribes in Michigan–especially the in-house ICWA attorneys and tribal social workers who have been expressing concern with not getting enough information to ensure a family is receiving active efforts prior to a foster care placement.

Briefing Completed in Michigan Indian Family Preservation Act Case

At the Michigan Supreme Court:

Order Granting Review

Appellant (Father)’s Brief

Appellee (Macomb County/State)’s Brief

Sault Tribe Amicus Brief (MSU Indian Law Clinic, ICWA Appellate Project co-wrote this brief)

American Indian Law Section_AmicusBrief

Appellant Reply

Oral Argument Scheduling Order

Unpublished ICWA Case from MN, Judge Jesson Concurrence

Here. This is an unpublished termination of parental rights out of the Minnesota Court of Appeals. Here is the concurrence in its entirety::

With a backdrop of historical trauma and a high number of Indian children being removed from their families and tribes by nontribal agencies, Congress passed the Indian Child Welfare Act (ICWA). See Miss. Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 32-37, 109 S. Ct. 1597, 1599-1602 (1989) (detailing the background for ICWA). Government must meet a high bar to terminate a parent’s parental rights in any case. ICWA and the Minnesota Indian Family Preservation Act require an even higher standard to terminate parental rights to an Indian child: proof beyond a reasonable doubt that returning the children to the parent will likely result in serious emotional or physical harm to the child. 25 U.S.C. § 1912(f) (2016) (ICWA); Minn. Stat. § 260.771, subd. 6(a) (2016)

Scant attention was given to this high standard during trial. This is troubling. Only one witness was asked to opine on the ultimate question of proof beyond a reasonable doubt. And, as the majority points out, that witness equivocated. And even after this court remanded the case to the district court, asking the court to directly address this question, the district court did not elaborate on the critical issue. It simply amended the findings to state that “[c]ontinued custody of [the children] by [mother and father] is likely to result in serious emotional or physical damage to the Children.”

I expect more when it comes to termination of parental rights for Indian children. We all should.

Yet I concur with the majority’s decision despite my view that, based on the nature of the expert testimony, this is a close case. I concur because the majority is correct that when we dive deep into the record we see children who suffered serious emotional damage with no realistic path to a different future with their parents. I concur because the tribe was unwilling to accept a transfer of jurisdiction to tribal court. I concur because the tribe supports termination of parental rights. And, most fundamentally, I concur because these children, like all children, deserve a permanent home, without additional delay.

But I remain concerned. In a state in which out-of-home placement for Indian children far exceeds the percentage for any other group of children, we need greater diligence in adhering to the high standards dictated by ICWA and the Minnesota Indian Family Preservation Act.

 

Michigan Court of Appeals Decides MIFPA Application to Removal of Child from the Home

Here is the opinion in In re Detmer/Beaudry. The question of whether an involuntary removal of a child triggers ICWA if the child is not placed in “foster home or institution or home of a guardian or conservator” 25 U.S.C. 1903(1)(i) is one that comes up pretty regularly. This case addresses that question under the Michigan Indian Family Preservation Act (MIFPA) and concludes that when a child is removed from respondent mother and placed with his non-respondent father, that removal still triggers MIFPA’s protections. The court focused on the dictionary definition of “removed” and found:

Thus, we understand “removed” in MCL 719B.15(2) to mean the instance when a court orders that a child be physically transferred or moved from the care and residence of a parent or custodian to the care and residence of some other person or institution. Based on this understanding, it becomes clear that the trial court erred with respect to AB. Over respondent mother’s objection, the trial court ordered that AB be physically placed with his nonrespondent father. AB had previously resided with respondent-mother and spent every other weekend with his nonrespondent father. The trial court’s order moved AB’s residence to his nonrespondent father’s home and conditioned respondent-mother’s visitation on the discretion of DHHS. Under our reading of MCL 712B.15(2), the trial court “removed” AB from respondent-mother.

***

Because AB was removed from a parent, the trial court was required under MIFPA to make findings on whether active efforts were made to provide remedial services, whether those efforts were successful, and whether respondent-mother’s continued custody of AB posed a risk of emotional or physical harm to the child. MCL 712B.15(2). The trial court was similarly required to hear testimony of a qualified expert witness concerning these matters. MCL 712B.15(2). The trial court made no such findings and heard no such testimony, and this was reversible error.

The ICWA Appellate Clinic at MSU Law co-authored the Tribe’s brief in this case.

Doe v. Jesson Case (MN Federal ICWA Case) Dismissed as Moot

Here is the opinion.

After two years, the Minnesota federal district court dismissed the voluntary adoption case challenging the provisions of the Minnesota Indian Family Preservation Act (MIFPA) allowing for notice and intervention of a child’s tribe in the proceedings. While the court states that the case presented Constitutional questions, the proceedings were moot and did not meet the standard for capable of repetition but evading review to keep the case live. There’s a nice discussion of that standard for practitioners who have been wondering how that might work in a child welfare case.

Plaintiffs have 30 days to file a notice of appeal if they so choose.

This is the last of the summer 2015 batch of federal ICWA challenges filed. All of them were ultimately dismissed. Carter v. Washburn is currently on appeal to the 9th Circuit.