Missouri Court of Appeals

ICWA Decision out of Missouri on Tribal Intervenor (Relator) Standing and Writ of Prohibition

Kate Fort
opinion_sd37148Download

From the facts in this opinion, it’s clear this is a pretty contested post termination of parental rights/foster care adoption case from the southern district of Missouri (Poplar Bluff, Springfield). What is not in the opinion but is available on the Westlaw decision page are the attorneys involved in the case. I’m sure it’s some local southern Missouri attorneys:

Attorneys for Relator – Heidi Doerhoff Vollet of Jefferson City, MO; James R. Layton of St. Louis, MO
Attorney for Respondent Judge – Scott S. Sifferman Acting Pro Se
Attorneys for Minor – William Petrus of Mt. Vernon, MO (GAL); Matthew D. McGill, David W. Casazza, Robert Batista, Todd Shaw of Washington, D.C.
Attorneys for Respondents Foster Parents – Toni M. Fields of Cassville, MO; Paul Clement, Erin Murphy of Washington, D.C.; Kevin Neylan of New York, NY

Huh.

Even so! In this case, the Court of Appeals found the Choctaw Nation had standing to to bring the writ of prohibition against the judge and the Court of Appeals entered the writ (Respondent is the trial judge)(also, this is why formal legal intervention is so important for tribes whenever possible)(also why it’s good to find local family law attorneys who can talk about things like “writs of prohibition” with expertise):

In his brief, Respondent argues that the Choctaw Nation does not have standing to seek this writ of prohibition. On two occasions, Respondent granted the Choctaw Nation the right to intervene in this protective custody proceeding under 25 U.S.C. § 1911(c), and also granted the Choctaw Nation the right to intervene in Foster Parents’ adoption proceeding. We see no error in these rulings. The Choctaw Nation has standing to seek
this writ of prohibition.

***

Respondent did not have the express or implied authority to interfere in the Children’s Division’s administrative review of a nonfinal administrative recommendation for adoption, and then substitute Respondent’s judgment for that of the Children’s Division and compel the Children’s Division to reach or adhere to a particular recommendation.

Termination of Parental Rights ICWA Case Out of Missouri

Kate Fort2 Comments

Here.

This case is illustrative of a lot of the things we talk about regarding practicing in an unfamiliar forum, and getting objections on the record.

The Tribe (Nenana Native Village) brought an appeal regarding the termination of parental rights, though the Tribe also has motions pending at the trial level to transfer jurisdiction and/or get the children in a preferred placement.

The state filed its petition against the Mom on June 11, 2015. The state sent notice on February 23, 2016. No reason for the eight month delay on notice is given in the opinion. In November of 2016 the state filed a petition to terminate parental rights. At that time, Mom agreed to voluntarily relinquish her parental rights. This is a regular issue under ICWA, because while Mom is voluntarily relinquishing, it is under state threat of termination. The Tribe argued that the state needed to at least follow 25 U.S.C. 1913’s requirements for voluntary relinquishment (it didn’t).

The court agreed the tribe had standing to bring the appeal (after much writing, but 25 U.S.C. 1914 ensures the tribe’s standing to appeal violations of 1911, 1912, or 1913), but disagreed that either the qualified expert witness was a problem, or that the state not following 1913 was a “manifest injustice”.

As a side note, the court also fundamentally misunderstands the difference between federal guidelines and federal regulations:

The Tribe’s argument on this point relies upon 25 C.F.R. Sec. 23.122(a), which provides guidance in interpreting Section 1912(f). Promulgated by the Bureau of Indian Affairs and published as regulations for interpreting the I.C.W.A., Section 23.122 notes that: [a] qualified expert must be qualified to testify regarding whether the child’s continued custody by the parent . . . is likely to result in serious emotional or physical damage to the child and should be qualified to testify as to the prevailing social and cultural standards of the Indian child’s Tribe. 25 C.F.R. Sec. 23.122(a).

We note that while “[t]hese guidelines are helpful[, they] are not binding upon state proceedings.” C.E.H., 837 S.W.2d at 953 (citing Matter of Adoption of T.R.M., 525 N.E.2d 298, 307 (Ind. 1988)). This is because the “primary responsibility for interpreting language used in the [I.C.W.A.] rests with the courts that decide . . . cases [involving Native American children].” Id.

Finally, case also illustrates a point Victoria Sweet and I have presented on a number of times–preserving the record for appeal. Part of the issue with the case is the lack of objection from the Tribe below about the QEW, her testimony, or the termination itself. There are a lot of reasons why this might happen, but I’m using this case to reiterate: if a tribe disagrees with something that is happening in trial court, SAY SO OUT LOUD IN COURT (on the record).  It might be terrifying to do so. The judge might get angry, but ultimately the proceeding will continue. Later, though, if the tribe decides to appeal, the issue is preserved. Absent that preservation, the court of appeals will use a lower standard to review the trial court (if it reviews it at all), and as in this case, use a “plain error” standard and find there is none.

This is an opinion full of incredibly annoying legal details the court wanted the Tribe do to, while the state failed to follow any of the legal details in ICWA.

Intratribal Dispute in the Missouri Court of Appeals

Matthew L.M. Fletcher

The case involves two factions of the Amonsoquath Tribe of the Cherokee Nation, a non-profit Missouri corporation. The case is captioned Jones v. Jones. Here is the opinion (or here — missouri-coa-opinion).

jones-appellant-brief

No response brief filed.

Missouri Courts Interpret Tribal Sovereign Immunity for First Time

Matthew L.M. Fletcher

The case is Ogden v. Iowa Tribe of Kansas and Nebraska. From the opinion:

In March of 2006, Larry Ogden, after communication with the tribal chairman of the “Iowa Tribe Executive Committee,” moved to Missouri to accept employment as manager of a truck stop near I-29 in Holt County, Missouri, known as the “Squaw Creek Eagles Nest Plaza.” Several months later, Ogden was terminated from employment. Ogden sued the “Iowa Tribe of Kansas and Nebraska” (“Iowa Tribe”) for breach of an employment agreement and for wrongful discharge. The Iowa Tribe filed a motion to dismiss the petition based upon tribal sovereign immunity. The trial court granted the motion to dismiss. Ogden appeals. We affirm.