notice

Two Additional Unpublished Notice Cases out of California

Kate Fort1 Comment

Apparently this is the week for notice cases with particular cause for posting.

Here. While the court in this case remands for notice violations in a guardianship case, it sadly does not also hold that Wikipedia is not a solid source for determining whether a tribe is federally recognized or not.

Here. And in this case, the appellate court wrote:

We begin with a concern not addressed by either party. California Rule of Court, rule 5.481(b) mandates that in asection 300 proceeding, the social services agency must send a “Notice of Child Custody Proceeding for Indian Child.” This form is designated ICWA–030. The ICWA–030 form sent by the Bureau here, however, differs from the ICWA–030 form available on the Judicial Council website.7 Significantly, that ICWA–030 form, which consists of 10 pages, requests identifying information on the biological mother (section 5c), the mother’s biological mother (section 5c), and the mother’s biological grandmother (section 5d).8 The ICWA–030 used by the Bureau, which was 12 pages, appears at first glance to be the same, but upon closer examination materially differs. It requests information on the biological mother (section 5c) and the mother’s biological mother (section 5c), but it then skips to the mother’s biological great grandmother and great, great grandmother (section 5d). Nowhere does it contain a section for information on the mother’s biological grandmother.9 By using what may be a faulty ICWA–030, the Bureau completely omitted all information on R.K.’s grandmother—Robin’s great grandmother.10
*6 Additionally, although the ICWA–030 requested information regarding R.K.’s mother, the Bureau omitted all information for her, stating “No information available” for every single category, including her name. This is, quite simply, inexplicable. At the very least, we can only assume that an inquiry of R.K. would have revealed her mother’s name and, quite likely, additional information called for by the notice. But it is also probable that the Bureau could have obtained the information from R.K.’s mother herself. At the outset of the dependency proceeding, R.K. informed the social worker that her mother was involved in her own dependency proceeding. Additionally, R.K.’s mother was present at the June 5, 2013, 12–month review hearing, as evidenced by the reporter’s transcript from the hearing. At one point, the court interrupted the proceeding to ask audience members to identify themselves, and one person responded, “I’m the mother of [R.K.]” Both of these circumstances suggest that R.K.’s mother was accessible had the Bureau made an effort to speak with her. Additionally, the Bureau omitted the current and former addresses and the place and date of birth for R.K.’s great, great grandmother.

Published (!) Notice Case out of Illinois

Kate Fort1 Comment

Here.

A long, complicated, aggravating notice case from the Illinois court of appeals.

Unpublished Notice Case Out of Michigan

Kate Fort1 Comment

Here.

In this case, the Kalamazoo court did not make an inquiry on the record.

Respondent accurately notes that the circuit court failed to make the required inquiry on the record. However, respondent suffered no prejudice as a result. There is no record evidence to support that the child had any Native American heritage.

Unpublished Notice Case Out of California

Kate Fort

Here.

In one line, this case summarizes why the Department’s failure to do notice properly harms kids and families:

[Infant]’s adjudication hearing was initially set for October 2013 but was continued approximately five months (due to the Department’s failure to properly serve notice under the ICWA) during which time the infant remained out of mother’s care.

And, for the record, in this case, “mother and maternal relatives had tribal enrollment numbers, and mother claimed father had Cherokee heritage. None of the ICWA notices sent reflected all of this information.”

Unpublished Notice Case out of California

Kate Fort

We don’t post all of the unpublished ICWA notice cases, but they are obviously still out there. An appellate court cannot determine if ICWA notice has happened if there is nothing in the record at the trial court level:

Nor can we find that the error was harmless. While father filed an ICWA–020 form indicating that he was not aware of any Indian ancestry, no such form appears in the record with respect to appellant. Similarly, the record contains no copies of either the certified notices sent to the Cherokee tribes in 2009 or 2010 or any responses from those tribes. Finally, it does not appear that any proof of the juvenile court’s ICWA finding from the prior matter was submitted to the juvenile court in this matter. Consequently, it was not possible for the juvenile court in the present case to assess the propriety of the notice given, whether all three federally recognized Cherokee tribes received notice, whether either of the two Cherokee tribes besides the Cherokee Nation responded, or precisely what the juvenile court’s finding that ICWA did not apply was based on. (Cf. In re Jennifer A. (2002) 103 Cal.App.4th 692, 703 [finding prejudicial error where Agency stated in a report that it had sent notices to tribes in compliance with ICWA, but no evidence was presented to juvenile court concerning Agency’s communications with tribes].)

 

Case here.

Montana ICWA Case: Notice, Active Efforts and a Look at Adoptive Couple Citations

Kate Fort1 Comment

Here.

A footnote in the case,

The record does not clarify whether G.S. ever had custody of M.S. The record is silent regarding G.S.’s relationship with M.S. prior to his incarceration. We recognize that 25 U.S.C. 1912(d) does not apply where the “breakup of the Indian family” has long since occurred. In re J.S., 2014 MT 79, P29, 374 Mont. 329, 321 P.3d 103 (citing Adoptive Couple v. Baby Girl, 570 U.S. __, 133 S.Ct. 2552, 2559 (2013)). Although the District Court asked during the April 22, 2013 hearing, before Baby Girl was decided, how the ICWA standard for termination applies in a situation where the child was never in the parent’s custody, the parties did not dispute that ICWA’s active efforts were required. Because this potential issue was not raised, we will not address it in this appeal.

got me looking for other cases that have cited Adoptive Couple. According to Westlaw, that would be 19 cases, including this one. Striking four of them as not child welfare cases, all 15 remaining were involuntary proceedings. Five from California, two from Montana, and one in Alaska, Nebraska, Oklahoma, North Carolina, North Dakota, Minnesota, Michigan, and Virginia.  Three cases “distinguished” Adoptive Couple, though that included the Alexandria P. case, so distinguishing Adoptive Couple doesn’t necessarily mean the court followed ICWA. Seven of the cases only cited the case (including this one).

Those that used the Adoptive Couple reasoning (instead of citing the case for fairly standard ICWA language)  include:

Native Villiage of Tununak v. State (holding that the adoption preferences of ICWA didn’t apply if the preferred placement didn’t “formally” move to adopt the child);

In re J.S. (applying the “continued custody” reasoning to a guardianship); and

In re Elise W. (discussing whether the case would change notice requirements when a parent never had custody)(unpublished case out of California’s First District).

In re T.S. (discussing when active efforts must start, in light of 1922 and 1912(d))

Published Definition of Indian Child Case out of California

Kate Fort

Here.

Notice Violation Case out of Illinois

Kate Fort3 Comments

That’s right–out of Illinois. According to Westlaw (ICWA & “Indian Child Welfare Act”), there are a grand total of 11 ICWA cases from the Illinois appellate courts.

Here is the most recent. The appeals court reversed and remanded due to ICWA notice violations (for one child–the other was not the biological child of the father):

At the dispositional hearing on April 26, 2011, the trial court found Dwight to be unfit and awarded guardianship of N.L. to DCFS. Among the reports submitted for the court’s consideration was a social history report, dated March 23, 2011, indicating that Dwight is a registered member of the Minnesota Chippewa Tribe, White Earth Reservation (the Tribe).

***

The trial court questioned the State about the children’s eligibility for tribal registry and was advised that the State had already received notices that both minors were ineligible for registry with the Tribe. The State was ordered to provide documentation of its compliance with the statute at the status hearing on December 18. No documents addressing the issue of tribal registry for the minors were submitted at that or any subsequent proceeding until the hearing on the State’s motion to supplement the record during the pendency of this appeal.

***

The State’s Tribe letters suggest that the Tribe was provided with the minors’ names and dates of birth and imply that Dwight’s name was provided with reference to N.L. The State’s Tribe letter for N.L is dated September 16, 2011, and that for M.L. is dated February 25, 2013. In its order granting the State’s motion to supplement the record, the court expressed concern with Dwight’s solicitation of new evidence while the case was on appeal. However, many of the documents the State was allowed to include with its supplementation were dated after the termination hearing and after Dwight’s notice of appeal.
Dwight filed a motion with this court to supplement the record with his own Tribe letter– from the same person who had signed the State’s letters– showing that N.L. and M.L. were eligible for tribal membership. He acquired this letter as a result of his solicitation for evidence related to the appeal. This court allowed Dwight to submit his Tribe letter with his case pending our decision of the propriety of its inclusion in the record. Dwight’s Tribe letter states that the minors are eligible for tribal membership and suggests that the Tribe was provided with the dates of birth for both minors, the correct spelling of N.L.’s name, and the names and dates of birth for both Dwight and Emily.

For reference, here’s the list of the Illinois appellate ICWA cases:

Continue reading →

Three Remanded for ICWA Notice Deficiency Cases out of California

Kate Fort1 Comment

Cases from the Second District, the Fourth District and the First District.

From the Second District:

Before the next scheduled hearing on January 31, 2013, DCFS submitted the following documents to the court: signed return receipts for the entities noticed; a letter from the Bureau of Indian Affairs acknowledging receipt of the ICWA notice but indicating it does not determine tribal eligibility; a letter from the United Keetoowah Band of Cherokee Indians in Oklahoma declining to intervene in the case because there was no evidence T.M. was a descendant of anyone on the Keetoowah Roll based on the information supplied; a letter from the Cherokee Boys Club, Inc., on behalf of the Eastern Band of Cherokee Indians, declining to intervene in the case because T.M. was neither registered nor eligible to register as a member of the tribe based on the information supplied; and a letter from the Cherokee Nation seeking further information. The Cherokee Nation letter asked DCFS to “verify correct spelling of maternal great great grandmother Lual Made [D.], also need her date of birth. Relationship of Eleonora [H.] to the above named child. [¶] We need dates of birth for everyone involved, their relationship to the child or children in question, and maiden names of all females listed. It is impossible to validate or invalidate this claim without more complete information.” (Boldface and capitalization removed.)

At the January 31, 2013 hearing, which was presided over by a different hearing officer than Commissioner Lewis, the court stated the tribes were properly noticed and it had received letters back from the tribes indicating T.M. was not an Indian child. The court found the ICWA did not apply. The court did not acknowledge the Cherokee Nation’s request for further information.

Just spit balling here, but maybe the reason Cherokee Nation puts part of its response in BOLDFACE CAPITALIZATION is to help a state court out, so it doesn’t find ICWA doesn’t apply when it might.

Unpublished California ICWA Opinion Reversing for Non-Compliance

Kate Fort2 Comments

A long and sad opinion here, but a few things of note:

-as usual, Jay Treaty arguments are brushed aside.

-the State’s assumption that a claim of tribal membership is vague doesn’t mean ICWA might apply. And families might involve many tribes, from geographically diverse areas.

-there is or was a dedicated ICWA court or docket in Los Angeles County.

-the foster parents were not interested in helping with reunification in the slightest.