notice

Arizona Court of Appeals on Notice [ICWA]

Kate Fort

1 CA-SA 22-0076 Tohono v. Hon Fridlund SQ – Opinion

Under Arizona law, tribes shall receive notice in voluntary proceedings:

Arizona Revised Statutes § 8-535(A) provides that after a petition for termination of the parent-child relationship has been filed, “notice of the initial hearing and a copy of the petition shall be given to . . . the tribe of any Indian child as defined by [ICWA].” The statute does not limit the notice requirement to involuntary proceedings.

***

Because neither A.R.S. § 8-535 nor the Arizona Rules of Juvenile Procedure limit an Indian tribe’s right to notice or intervention solely to involuntary parental terminations, those tribal rights extend to voluntary termination proceedings. Since the Nation was not provided notice of the initial termination proceeding, nor was it allowed to intervene, we vacate the parental termination order, grant the Nation’s motion to intervene, and remand to the superior court for further proceedings consistent with this opinion

 

Thank you to everyone who sent this to me within approximately 20 minutes of it being released.

Colorado Supreme Court On Inquiry and Notice

Kate Fort

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.

Colorado’s Recent Struggles with Notice Standard [ICWA]

Kate Fort

21ca0381-pd

21CA0659-PD

21CA0764-PD

Colorado has long had a very low bar to trigger the reason to know provision of ICWA. The B.H. case from 2006 has long been a model for other states that involve the question of what information does a court need to trigger the “reason to know” requirement of 25 U.S.C. 1912(a). And here, in a recent CO Court of Appeals case, is what the current debate over how the regulations have changed the standards boils down to:

But an assertion of possible Indian heritage alone does not fall within a “reason to know” factor that would permit a participant or the court to assume the child is an “Indian child” under section 19-1-126(1)(a)(II). Thus, this type of an assertion does not require formal notice to a tribe or tribes to determine whether the child is an “Indian child.”

In re A-J.A.B., 2022 COA 31, P58

The state law referenced is the Colorado adoption of 25 C.F.R. 23.107(c), the regulations that are supposed to guide courts regarding the “reason to know” standard. However, this is a fundamentally different standard than that articulated by B.H.:

Because membership is peculiarly within the province of each Indian tribe, sufficiently reliable information of virtually any criteria upon which membership might be based must be considered adequate to trigger the notice provisions of the Act.

138 P.3d 299, 304

The court of appeals states that state law has changed enough that B.H.’s reasoning was done under a different standard than the one in effect today (ICWA, of course, has not changed).

Much like the discussion in the In re Z.J.G. case, we are again debating the points of the six factors the regulations articulate as giving a court reason to know, and how they (according to the CO Courts of Appeals) narrow the reason to know standard, rather than guide it.

We agree with the E.M. division that information about the child’s heritage does not constitute “reason to know” that the child is an Indian child under section 19-1-126(1)(a)(II)(A). Information about a possible affiliation with two tribal ancestral groups does not satisfy one of the six reason to know factors

2022 COA 31 at P71

It is honestly stunning to me (though it should not be), that the passage of federal regulations means we are all now re-litigating notice issues that had long been settled. Last week, the Colorado Court of Appeals held

We conclude that a parent’s assertion of Indian heritage, standing alone, is insufficient to trigger ICWA’s notice requirements but, rather, it invokes the petitioning party’s obligation to exercise
due diligence under section 19-1-126(3). We further conclude that the exercise of due diligence under this provision is flexible and depends on the circumstances of, and the information presented to the court in, each case. Nonetheless, the record needs to show that the petitioning party earnestly endeavored to gather additional information that would assist the court in determining whether there is reason to know that the child is an Indian child.

People in re J.L., 2022 COA 43, P3

And now, “due diligence” is an “earnest endeavor” on the part of the state when a parent tells the Court they have tribal relations. However, in both cases the court of appeals sent the case back due to the lack of “due diligence” to follow up on these statements by the parents. The Court in A-J.A.B. gives a very detailed remand instruction regarding due diligence, and what the Court will need by date certain.

To lower my blood pressure and end this post, I will remember what the Washington Supreme Court held, when faced with very similar facts and laws:

We hold that a court has a “reason to know” that a child is an Indian child when any participant in the proceeding indicates that the child has tribal heritage. We adopt this interpretation of the “reason to know” standard because it respects a tribe’s exclusive role in determining membership, comports with the canon of construction for interpreting statutes that deal with issues affecting Native people and tribes, is supported by the statutory language and implementing regulations, and serves the underlying purposes of ICWA and WICWA. Further, tribal membership eligibility varies widely from tribe to tribe, and tribes can, and do, change those requirements frequently. State courts cannot and should not attempt to determine tribal membership or eligibility. This is the province of each tribe, and we respect it.

In re Z.J.G., 471 P.3d 853, 865.

North Carolina Supreme Court on Reason to Know [ICWA]

Kate Fort

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/

Reported N.C. ICWA Notice Case

Kate Fort
528a20-1Download

There’s not much groundbreaking about this ICWA notice case, but this information did catch my eye. A letter from the BIA apparently stated:

The Bureau of Indian Affairs specified in relevant part as follows:

a. The BIA acknowledges that you have notified the family’s identified Tribe(s) Tuscarora, Tonawanda, Mohawk, Seneca, Oneida, EBCI, Cayugo, Onondaga, and Keetoowah based on your inquiry with the family according to 25 U.S.C. § 1912.

b. You have identified that Onondaga and Keetoowah have not responded. At this point, you have done due diligence and completed your ICWA responsibilities.

Do people regularly get letters where the BIA states the agency has “completed [its] ICWA responsibilities?” I haven’t seen this entered as evidence in other cases, so I’m curious. According to the record, this came from the BIA regional office in Tennessee.

California Inquiry and Notice Case [ICWA]

Kate Fort
In re T.G.Download

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. 

Application of ICWA Case out of Arkansas Court of Appeals

Kate Fort
Borah v. Arkansas Dep’t of Human ServicesDownload

This is an interesting and frustration case on the law. There are a few states, and I believe both Arkansas and Missouri are two, where a parent has to preserve any ICWA issue for appeal. That is not the case in a number of other states. But in this case, the agency and state attorney agree there was error in not noticing the Tribe (Klamath) on the TPR, and that this failure could upend any permanency findings under 25 U.S.C. 1914. They ask the court to remand for notice. However, the Court held:

Accordingly, we cannot rely on Dominguez to remand in this instance. Unlike the situation in Dominguez, the final order herein terminated both parents’ rights, leaving no parental right unaddressed. Here, the application of the ICWA cannot be addressed on remand without reversing the circuit court’s TPR order. We hold that the ICWA issue is not preserved for appellate review.

Adjudication orders are immediately appealable. Ark. Sup. Ct. R. 6-9(a)(1)(A) (2019). A parent’s failure to appeal rulings made in an adjudication order precludes appellate review of those findings in an appeal from a subsequent order. Ashcroft v. Ark. Dep’t of Human Servs., 2010 Ark. App. 244, at 8, 374 S.W.3d 743, 747. No party appealed the circuit court’s findings that the ICWA did not apply or that neither Amanda nor A.W. were members of an Indian tribe. Further, we have held that compliance with the notice requirements of the ICWA must be raised below in order to be preserved for appellate review. Lauman v. Ark. Dep’t of Human Servs., 2010 Ark. App. 564, at 2.

I’m also just going to leave the facts here about the ruling, re. application of ICWA:

The court noted that Amanda had provided a roll number for the Klamath Modoc tribe at the probable-cause hearing, that the Klamath Modoc tribe had been notified on February 12, and that the tribe had not responded nor contacted DHS; therefore, the court found that “at this time,” the ICWA “does not apply.” In a separate finding, the circuit court stated, “[Amanda] does not have membership in or descent from an Indian tribe; the legal father does not have membership in or descent from an Indian tribe; the juvenile does not have membership in or descent from an Indian tribe.”

Notice Case from Montana [ICWA]

Kate Fort
In re M.T.Download

This is the year of notice and reason to know. Courts are finally wrestling with what the regulations do and do not require–and there is considerable concern about what to do if there is no response from a tribe. 

Whenever a court “knows or has reason to know” that a child is an “Indian child” under ICWA, the court is to verify the child’s status prior to conducting termination proceedings. 25 U.S.C. § 1912(a); In re L.D., 2018 MT 60, ¶ 13, 391 Mont. 33, 414 P.3d 768 (internal citations omitted). Whether a child is eligible for tribal membership is a question of fact dependent upon the child’s actual ancestry, and an Indian tribe provides the determination conclusively as a matter of law. 25 C.F.R. § 23.108(b); In re L.D., ¶ 14 (internal citations omitted); In re Adoption of Riffle, 273 Mont. 237, 242, 902 P.2d 542, 545 (1995).

¶22 It follows that a district court does not have authority to make a de novo conclusion regarding eligibility. 25 C.F.R. § 23.108(b); In re L.D., ¶ 14 (internal citations omitted). Instead, the district court must determine “(1) whether the court has reason to believe that a subject child may be an ‘Indian child’ and (2) whether an Indian tribe has conclusively determined that the child is a member or eligible for tribal membership.” In re L.D., ¶ 14 (internal citations omitted). Absent a conclusive tribal determination, a court abuses its discretion by terminating parental rights if there is “reason to believe” the child is an Indian child. In re L.D., ¶ 14 (internal citation omitted).

In this case, however, the issue was the Agency didn’t contact the Tribe at all, leading to the remand.

We hold the District Court abused its discretion in terminating Mother’s parental rights without a conclusive tribal determination of tribal membership status and enrollment eligibility in the United Keetoowah. Since the United Keetoowah is a federally recognized Cherokee tribe,3 and the Department did not contact the tribe, the District Court made a de novo determination regarding M.T. and L.T.’s United Keetoowah tribal eligibility, a determination which is in the sole province of the tribe.

Notice Case out of California [ICWA]

Kate Fort
In re Dominic F.Download

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.  

Crosscut Article on Greer Case

ilpc

Here

ICWA was thereafter applied to the case, but the damage was done — the children were placed in foster care without the normal protections the law would have offered them. Now, the Central Council of Tlingit and Haida Indian Tribes of Alaska are challenging the decision in the Washington State Supreme Court. If the court’s decision is upheld, advocates say the case could significantly weaken the use of ICWA in Washington by raising the bar for what qualifies as a “reason to know” that a child is “Indian” in the eyes of the law.

Kathryn Fort, director of Michigan State’s Indian Law Clinic, who is arguing on behalf of the tribes in the case involving Greer and Graham, says that it shouldn’t be so difficult. The burden of checking in with a tribe is low, she says, but the outcome has immense implications for the family, children and tribe.

Briefing and oral arguments here.