MIFPA

Unpublished ICWA Case from MN, Judge Jesson Concurrence

Kate Fort

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 This is an unpublished termination of parental rights out of the Minnesota Court of Appeals.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

Kate Fort

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

Kate Fort

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.

Two ICWA Cases from the Michigan Court of Appeals

Kate Fort

Unreported Notice case (parent challenge, no indication child was eligible for tribal citizenship): In re Applewhiate

Reported case: In re JJW_Opinion

The MSU Indian Law Clinic/ICWA Appellate Project co-authored the Tribe’s brief in In re JJW.

2017 Michigan Indian Family Preservation Act and ICWA Court Resource Guide

Kate Fort

Here. From the Michigan Court Improvement Program.

New and updated for 2017! Now with MIFPA and the Regulations!

MI Supreme Court Administrative Hearing on ICWA Pro Hac Rule

Kate Fort

Announcement here.

All of the comments submitted on this rule were in support of it–I’m pretty sure I thanked everyone personally, but thank you again to everyone who did.

Proposed Court Rule in Michigan to Waive Pro Hac Fees and Other Limits for Out of State Tribal ICWA Attorneys

Kate Fort1 Comment

Here.

In ICWA cases, the tribe has a right of intervention in whatever state court is hearing the case of the tribal child. While it is true that the “tribal representative” does not have to be attorneys, when they are attorneys, there may be concerns about practicing without finding local counsel or using the local “pro hac” rule. Michigan has proposed a court rule that would waive those requirements for tribal attorneys representing the tribe in a state court where the attorney is not barred. This proposed rule is in direct response a number of requests from tribal ICWA attorneys nationwide. We are hopeful other states will consider a similar rule (though in Nebraska this is right is guaranteed by statute, which is another great fix). This rule was proposed by the Michigan Tribal-State Judicial Forum.

Also, if you are an out of state attorney who would benefit from this proposed Rule (or in state) please send in comments by March 1.

ICWA Published Notice Case out of Michigan

Kate Fort1 Comment

Here.

Given the multiple references in the record to possible Cherokee heritage, the DHHS had adequate information to make an “initial determination” that C.J. “may be a member” of the Cherokee tribe, implicating a duty to “exercise due diligence to contact” the Cherokee tribe “in writing so that the tribe may verify membership or eligibility for membership.” MCL 712B.9(3) (emphasis added). This was not done. Furthermore, assuming that the DHHS was “unable to make [such] an initial determination” relative to the Cherokee tribe, there is no indication in the record, nor does the DHHS argue on appeal, that the tribe or tribes located in Kalamazoo County were given written notification, which is a minimal requirement under the final sentence in MCL 712B.9(3).FN9 Indeed, the DHHS does not even present an appellant argument under MCL 712B.9(3), despite respondent’s partial reliance on the provision. Accordingly, MCL 712B.9(3), along with 25 USC 1912(a) and MCL 712B.9(1), serves as a basis to order conditional reversal in regard to C.J. On remand, notice must be sent to the Cherokee tribe and, if one exists, to any tribe or tribes in Kalamazoo County.

As for FN9, where the Michigan Court of Appeals admits it does not know if there is a tribe in Kalamazoo County–if only there was a way to find out that information.

Thanks to everyone who sent this one in.

Doe v. Jesson, now Piper, Partially Survives Motion to Dismiss

Kate Fort

Here. This is the federal case challenging the Minnesota Indian Family Preservation Act.

The Court finds that it has jurisdiction to hear the Does’ complaint, but only against the government defendants. The Court will dismiss Commissioner Moose from the case because he is a tribal officer and not a state officer; does not enforce MIFPA; and is not restricted by the constitutional clauses at issue here. But even though the Court may proceed to the merits of the Does’ complaint against the government defendants, the Court will not decide the merits now. The parties necessarily and understandably devoted nearly all of the briefs to the numerous preliminary issues. Although the jurisdictional questions were well briefed, the Does’ equal protection and due process claims received less attention than they deserved. Accordingly, in deciding these motions the Court will express no opinion on the merits – only on the preliminary matters. It may be that Defendants’ positions on the merits are correct – or incorrect – but those questions will be decided another day.

Published Burden of Proof ICWA/MIFPA Case out of Michigan Court of Appeals

Kate Fort

Here.

As set forth above, the relevant provisions of the ICWA and the MIFPA are essentially identical; that is, each requires proof by “clear and convincing evidence” to remove an Indian child and place him or her into foster care, 25 USC § 1912(e), MCL 712B.15(2); proof sufficient to satisfy the trial court that active efforts have been made to terminate parental rights, 25 USC § 1912(d), MCL 712B.15(3); and proof “beyond a reasonable doubt” that continued custody will harm the child, 25 USC § 1912(f); MCL 712B.15(4). Thus, as with its federal counterpart, the Legislature, in enacting the MIFPA, set forth specific evidentiary standards in MCL 712B.15(2) and (4), while declining to do so in MCL 712B.15(3). The inevitable conclusion, therefore, is that, like Congress, the Legislature intended for the “default” evidentiary standard applicable in child protective proceedings—i.e. clear and convincing evidence—to apply to the findings required under MCL 712B.15(3) as to whether “active efforts” were made to prevent the breakup of the Indian family. Accord In re JL, 485 Mich. at 318–319; In re Roe, 281 Mich. at 100–101. Therefore, because a default standard of proof applies to MCL 712B.15(3), it is not unconstitutionally vague.