notice

Notice Case out of California [ICWA]

Kate Fort

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.

Notice and Enrollment Case from Colorado Court of Appeals [ICWA]

Kate Fort

Here

This is a really interesting opinion, and balances a lot of interests. The issue of how to get a child who is both eligible for tribal membership and in foster care leads to a lot of questions about who gets to make the decision of enrollment. The agency has technical decision making authority for the children, but may choose to not enroll the children–as they did in this case–thus denying the application of ICWA (and a whole host of other citizenship related benefits and responsibilities). It may even mean the child can never be members, since some tribes don’t allow adults over the age of 18 to enroll. The Colorado Court of Appeals has just decided that the Court must make the final decision in those cases about whether a child should be enrolled or not.

In this case, mom told the agency the dad had Chickasaw heritage. This was enough for the agency to send notice to the Tribe. The Tribe responded that both the dad and the children were eligible for membership in the tribe, send membership applications, and asked the agency to assist the parents in enrolling the children.

The agency did NOT enroll the children, and did NOT tell the court of the Tribe’s response. The court only became aware of the response in the petition for termination. The court found ICWA did not apply, and terminated mom’s rights. The Court of Appeals determined that was not appropriate, and has created the process of an “enrollment hearing,” where the agency must deposit the Tribe’s request for enrollment with the court, and then the court must have a hearing–

Thus, once the response from the tribe has been deposited
with the juvenile court as set forth in Part II.B, we conclude that the
court must set the matter for a hearing to determine whether it is in
the best interests of the children to enroll them in the tribe. See
People in Interest of L.B., 254 P.3d 1203, 1208 (Colo. App. 2004) (A
juvenile court “must conduct a hearing to determine the proper
disposition best serving the interests of the child.”).

¶ 23 Of course, at an enrollment hearing, as at any other hearing in
a dependency and neglect proceeding, the court must give primary
consideration to the children’s best interests. See K.D., 139 P.3d at
698; C.S., 83 P.3d at 640.

¶ 24 And, in determining the children’s best interests, the juvenile
court must hear and consider the positions of the parents, as well
as the department and the guardian ad litem (GAL), all of whom
have standing, as relevant here, to speak to the merits of the tribe’s
enrollment request.

Though everyone can be heard, the court goes on to say,

Thus, at an enrollment hearing, the juvenile court should not
treat an objection, even from a parent, as a veto. On the contrary,
any reason for objection must be compelling considering ICWA’s
intent to maintain or foster the children’s connection with their
tribal culture.

Of course, the Tribe sent that letter requesting assistance enrolling the children in October of … 2018. Which means, of course, the twins who were a month old in May, 2018 are now two years old, never had any ICWA protections, and will now have their case go back to the trial court for a membership determination and a re-do of their child welfare case.

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

Kate Fort

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.

Reason to Know Decision from Washington Court of Appeals [ICWA]

Kate Fort

Here.

ICWA and WICWA require a court conducting a 72-hour shelter care hearing to inquire whether the child is or may be an Indian child. A court substantially complies with that requirement if prior to the hearing the Department has begun a good faith investigation into the child’s Indian status, the parties elicit the relevant evidence during the hearing, and the court considers that evidence before ruling on shelter care.

Ok, sounds good.

The reason-to-know standard turns on evidence that the child is a tribal member, or the child is eligible for tribal membership and a biological parent is a tribal member. If there is a reason to know a child is or may be an Indian child, then ICWA and WICWA require the court to treat the child as an Indian child pending a conclusive membership determination by a tribe. A parent’s mere assertion of Indian heritage absent other evidence is not enough to establish a reason to know a child is or may be an Indian child. Because the Department’s good faith investigation before the shelter care hearing did not reveal evidence that a parent or a child was a tribal member, the court did not err in concluding that there was no reason to know the children were Indian children based on the evidence available at the time of the shelter care hearing, Of course, the Department has an obligation to continue its investigation before proceeding to a dependency or termination hearing.

Oohkay. Then what did the investigation reveal?

The investigation revealed that the mother was eligible in the Central Council of Tlingit and Haida, where her mother is enrolled, the Klawock Cooperative Association, and that father was potentially eligible at Umatilla.  This was not just the parent’s assertion (which frankly, given the specificity, should be enough*)–this included the testimony of the social worker who called Central Council. It turns out what this Court means by reason to know is actual evidence of membership:

Because the Department’s good faith investigation before the shelter care hearing did not reveal evidence that a parent or a child was a tribal member,

The children were removed on June 27. The first hearing (shelter care) took place on July 2-3. At that point, the state social worker had called Central Council and knew grandma was enrolled, but not mom. She then testified that “to her knowledge”, dad was not enrolled, but there is nothing in the opinion on how she would know that. The social worker then testifies it was possible the children were eligible for enrollment.  But then, the court’s shelter care order states there is “not a reason to know” the children are Indian children. When Central Council intervenes in the case on July 30, the Court then decided there was reason to know (well, yes, because then we all know).

Everyone knows (ahem) that three-five days is not enough time for a full notice as required by the law (by mail, return receipt requested). Those of us who do this work ALSO know it may take a tribe longer than that to determine membership. The purpose of the Regs (to treat potential/reason to know Indian children as Indian children until determined otherwise) was to ensure those children were treated as Indian children until membership is all sorted out. The Washington Court of Appeals manages to do the opposite–equating “reason to know” with just plain old “know”. Why does this all matter? The legal standard applied at the shelter care hearing:

Specifically, the information before the court at the shelter care hearing as a
result of the Department’s good faith investigation did not establish a reason to know Z.G. and M.G. were Indian children. Because there was no reason to know,
the normal serious threat of substantial harm standard applied at the shelter care hearing.

Unless a Tribe responds the parent is absolutely a member at that first phone call from the state (not even legally required notice), or the parent happens to have legal evidence of membership on him or her, Washington will claim there is no reason to know, and apply a lower burden of proof than the emergency standard required by ICWA under 1922.

*I decided not to rant about why the parent’s testimony isn’t enough/why parents in court aren’t listened to, but imagine I did.

Published Notice Case from California Court of Appeals [ICWA]

Kate Fort

Here

One might think, given that as of the end of July, California had more than 70 ICWA notice violation cases and in 41 one of them (fifty six percent of the time) the appellate court sent it back down to get inquiry and notice correct, the state agency might spend less time arguing why they shouldn’t do notice at all and instead just do notice right the first time. Also, this is one of those cases that makes me furious given that the Tribe intervened in mother’s case when SHE was a dependent child. But instead, let’s look at what the state argued it should do rather than give notice to the Picayune Rancheria:

It is well established that a non-Indian parent has standing to assert an ICWA notice violation on appeal. (In re Jonathon S. (2005) 129 Cal.App.4th 334, 339.) Nonetheless, the County argues that this court does not have jurisdiction, the case is not ripe for appeal, and parents do not have standing because they did not first bring a petition for invalidation in the juvenile court.

***

The County argues that because this specific remedy [25 U.S.C. 1914]  for ICWA violations exists, appeal is an improper remedy. It argues that a petition for invalidation is the exclusive remedy available for ICWA notice and inquiry violations and, as such, parents were required to unsuccessfully pursue such a petition in the juvenile court prior to seeking relief on appeal. Because they did not do so, it reasons, this court is without jurisdiction to hear their appeal.

Yet despite arguing that a petition for invalidation is the exclusive remedy for an ICWA violation, the County also argues parents do not have standing to file such a petition for invalidation. It argues the petition is only available to parents of Indian children—not parents of a potential Indian child for whom ICWA inquiry and notice was not effectuated. (emphasis added)

***

We also decline the County’s invitation to reexamine the “non-forfeiture doctrine”—or, more accurately described as the principle that a parent is not foreclosed from raising an ICWA inquiry or notice violation even if the issue could have been more timely raised by appeal from an earlier order.

***

Again, the County suggests we revisit established case law and depart from the requirement that the agency give ICWA notice to tribes when there is reason to know a child may be eligible for membership and require notice only when the court knows or has reason to know the child is definitively a member (or knows a parent is definitively a member and the child is eligible for membership). We decline the invitation.

Therefore,

Here, having reason to know the minor may be an Indian child, the juvenile court ordered the County to provide notice to the Picayune Rancheria of the Chukchansi Indians tribe in accordance with the ICWA. The County knew that the maternal grandfather was a member of that tribe and that he lived on the tribe’s reservation. It also knew, or should have known, that mother was found to be an Indian child when she was a dependent of the court and that the Picayune Rancheria of the Chukchansi Indians tribe had intervened in that case. We conclude, as did the juvenile court in this case, that the County was required to send ICWA notice to the Picayune Rancheria of the Chukchansi Indians tribe in this case. (emphasis added)

And the kicker (court’s emphasis not italics, mine in red):

Here, the County sent notice to the Picayune Rancheria of the Chukchansi Indians tribe on January 25, 2016, of the “Pre-Jurisdictional Status Conference,” which was scheduled for February 9, 2016. The juvenile court was apprised that the tribe had not received the notice but proceeded with the hearing, which was ultimately held on February 23, 2016. Thereafter, no notice of any subsequent hearing was ever sent to either the tribe or the BIA. Nonetheless, the court held the jurisdiction and disposition hearing on February 23, 2016, sustained the petition, removed the minor, and ordered reunification services. After that hearing, the County “resent” notice—apparently resending the same documents (i.e. the family history, section 300 petition, and notice of the then-passed February 9, 2016 hearing date)—thus, only providing the tribe with notice of a hearing which had already passed. The tribe received that notice on March 3, 2016. On April 26, 2016, less than 60 days thereafter, the juvenile court held an unnoticed ICWA compliance hearing and found the ICWA did not apply.

 

New Mexico Notice and Time Frame Case from Court of Appeals [ICWA]

Kate Fort

Children, Youth & Families Department v. Tanisha G. and Isaac G.

This is an interesting and remarkable case, and a way to deal with continued notice violations and delay by an agency. Here are the highlights of this disturbing case of agency overreach:

CYFD took Child, then age four, into custody on January 26, 2018, after the 12 Bernalillo County Sheriffs Office executed a warrant for Father’s arrest, leaving no caregiver in the home to care for Child.

***

Parents were served with the petition on February 6, 2018. By that time, Father  had been released from custody and the charges against him dropped; his arrest was apparently the product of mistaken identity.

Meanwhile,

In the ensuing seventy-seven days, the parties appeared for three hearings: a status conference on February 27, 2018, and two adjudicatory hearings that had been set for April 2, 2018, and April 24, 2018, respectively. The district court declined to 14 commence the adjudication on either April 2 or April 24, however, because although CYFD had mailed ICWA notices to several tribal entities on February 8, 2018, and the tribal entities had received those notices shortly thereafter, CYFD had not filed proof of service to establish receipt in the record.

On April 25, 2018, Parents filed separate motions to dismiss, arguing that 19 CYFD had failed to commence the adjudication within sixty days as required by the Abuse and Neglect Act.

THEN,

The district court heard the motions to dismiss on the morning of May 24, 6 2018, at which time CYFD orally moved for an extension of time to commence the adjudicatory hearing. The district court denied CYFD’s request, noting that the court and parties had attempted multiple times to commence the adjudication, that CYFD’s failure to comply with ICWA’s notice requirements had precluded the court from timely adjudicating the matter, that the court had reminded CYFD that the time limits were running, and that CYFD had failed to file a motion to extend the time limits when the parties were last in court.  The district court granted the Parents’ motions to dismiss the petition with prejudice.

Hours later, Father filed an emergency motion for contempt of court, stating that arrangements had been made for Child to be reunited with Parents at 11: 15 a.m., but CYFD refused to return Child. The district court conducted an emergency hearing at 3:00 p.m., during which CYFD stated that it intended to file a motion to reconsider or, alternatively, to stay the judgment. The district court admonished CYFD for keeping Child without jurisdiction and ordered reunification before 5:00 p.m. that day, which occurred. CYFD appeals the district court’s dismissal order.

The Court of Appeals upholds the lower courts dismissal and ADDS THIS:

Finally, we briefly address CYFD’s assertion that the district court “was … inexplicably dismissive of [CYFD]’s concerns for Child’s welfare, which is not only an abuse of discretion, but demonstrates a conscious disregard by the [district] court of its statutory duty to ensure that ‘a child’s health and safety shall be the paramount concern.'” Contrary to CYFD’s characterization, however, we note that the district court heard from Father’s attorney that the conditions in the home had been remedied. The guardian ad litem (GAL) reiterated that Parents’ attorneys had suggested that the home was now clean and safe for Child. The GAL stated that Child and Parents share a strong bond and that Child was suffering from anxiety due to his separation from Parents. The GAL believed it was safe to return Child to  Parents. Moreover, the criminal allegations against Father, which had brought Child into CYFD’s custody in the first place, were a product of mistaken identity and had been dismissed months earlier. Based upon this testimony, we disagree with CYFD’s characterization that the district court disregarded Child’s health and safety.

Notice Case out of Alabama [ICWA]

Kate Fort

Here.

Sometimes even I am struck dumb by the notice cases:

A second form, dated in 2017 and signed by C.L.B., was also introduced into evidence. C.L.B. testified that his mother had assisted him in completing the 2017 form. On the 2017 form, C.L.B. listed Cherokee and “Ojibwa-(Chippewa)” as the tribes in which he, B.E.B., or one of B.E.B.’s paternal grandparents might have membership.

Star Pope testified that, at the direction of C.L.B., she had inquired of the paternal grandmother of B.E.B. regarding with which tribes C.L.B.’s family might be affiliated. She testified that the paternal grandmother of B.E.B. had informed her that C.L.B. was not affiliated with the Cherokee or Sioux tribes but that she had identified the Chippewa or Ojibwe tribe as a possibility. Pope testified that she had contacted authorities in several different states and that she had eventually been directed to a central location to which, she said, she had mailed a letter requesting information concerning whether B.E.B. would be recognized as an Indian child or have benefits under the ICWA. DHR introduced into evidence a letter dated May 4, 2016, that had been mailed to the ICWA representative from the Chippewa Indians of Mackinac, Michigan . . .

DHR also introduced a letter from the Bay Mills Indian Community dated May 19, 2016, in response to an inquiry from DHR; that letter indicated that B.E.B. was not eligible for membership in the Bay Mills Indian Community.

 

2019 ICWA Agents for Notice

Kate Fort

Here

This year’s version appears to correct the mistakes in the 2018 list. That means it is even more important to share this year’s list of agents for notice.

Montana Supreme Court on Reason to Know [ICWA]

Kate Fort

Here.

And a long excerpt:

Contrary to the Department’s assertion and the apparent corresponding view of the District Court, the “reason to know” standard does not necessarily require an evidentiary showing, and certainly not by the parents, that a child or parent may be eligible for tribal membership. See 25 U.S.C. § 1912(a); 25 C.F.R. §§ 23.107-08. Nor does ICWA require that an assertion of potential tribal eligibility be certain. Gerardo, 14 Cal. Rptr. 3d at 802; Kahlen, 285 Cal. Rptr. at 511. See also 25 C.F.R. §§ 23.107(a), (c), -108(a). Any more stringent construction as suggested by the State would defeat ICWA’s manifest purpose and command. Certainly, a “reason to know” is a low standard, but not an unlimited one. In re Jeremiah G., 92 Cal. Rptr. 3d 203, 207-08 (Cal. App. 2009); In re Z.H., 740 N.W.2d 648, 653-54 (Iowa App. 2007). A “reason to know” requires something more than a bare, vague, or equivocal assertion of possible Indian ancestry without reference to any identified Indian ancestors with a reasonably suspected tribal connection. See Jeremiah G., 92 Cal. Rptr. 3d at 207-08; Z.H., 740 N.W.2d at 653-54. Pursuant to 25 C.F.R. § 23.107(c)(1), Mother’s asserted belief that she may be eligible for enrollment in the Crow Tribe was minimally sufficient to constitute a reason to know that the children were Indian children under the circumstances of this case.

¶22 We are further troubled by the Department’s apparent view that it has no affirmative duty to make further inquiry or provide tribal notice and inquiry when parents are not cooperative. Lack of parental cooperation is immaterial, is not a basis for equitable waiver or estoppel, and does not otherwise relieve state agencies and courts of the duty to comply with ICWA requirements. Kahlen 285 Cal. Rptr. at 512. ICWA vests Indian children and related Indian tribes with a federal right, independent of but on par with the right of Indian and related Indian tribes with a federal right, independent of but on par with the right of Indian parents, to specified tribal notice and eligibility determinations regardless of the conduct or disregard of the parents. Miss. Band of Choctaw Indians, 490 U.S. at 49-53, 109 S. Ct. at 1609-11; Kahlen, 285 Cal. Rptr. at 512. The practical difficulty or inability of a state agency to identify the correct tribe or substantiate an assertion of requisite Indian ancestry does not relieve the agency of its duty to comply with ICWA requirements. See Kahlen, 285 Cal. Rptr. at 512.

Reason to Know [ICWA] Out of the Ohio Court of Appeals

Kate Fort

2019-ohio-178

In most states, this would most certainly be reason to know, and the agency would be required to do additional inquiry and notify a tribe. When we talk about inconsistent application of the law, this is definitely one of those areas.

With respect to Mother, the following exchange took place:

[MOTHER]: My dad is an Iroquois tribe, but I don’t know if he’s registered, but, I mean, his family is all native Americans and stuff. Yes, they are.

[COUNSEL]: But what we need to know is whether you yourself are registered with a tribe.

[MOTHER]: Oh, no.

[COUNSEL]: You’re not. Okay. That’s what we needed. Thank you, your Honor.

THE COURT: Okay.

[COUNSEL]: So ICWA does not apply then. THE COURT: Okay. You’re definitely not registered?

[MOTHER]: No, sir. (Jan. 16, 2018 tr. 5-6.) {¶23}

Thus neither L.D. nor S.D. are members of a tribe, and Mother, herself, is not a member of any tribe. Although Mother alleged that her father is an Iroquois, L.D. and S.D. are not his children; they are his grandchildren. As previously stated, the ICWA defines an “Indian child” as any minor child who is either a member of an Indian tribe or “is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe.” 25 U.S.C. 1903(4) (Emphasis added.) A grandchild of a member of an Indian tribe falls outside the definition and therefore does not qualify as an “Indian child” under the act. Therefore, the ICWA is inapplicable, and the trial court was not required to comply with its mandates.