Docket here.
Documents and previous coverage here.
placement preferences
California Court of Appeals Finds No Good Cause to Deviate from Placement Preferences in Alexandria P. Case
Opinion here. The Court of Appeals upholds that the order placing Alexandria P. with her family in Utah.
Information page with previous posts and holdings here.
We have twice remanded the matter because the lower court used an incorrect standard in assessing good cause. The dependency court has now correctly applied the law governing good cause, considering the bond Alexandria has developed over time with the P.s, as well as a number of other factors related to her best interests. Those other factors include Alexandria’s relationship with her extended family and half-siblings; the capacity of her extended family to maintain and develop her sense of self-identity, including her cultural identity and connection to the Choctaw tribal culture; and the P.s’ relative reluctance or resistance to foster Alexandria’s relationship with her extended family or encourage exploration of and exposure to her Choctaw cultural identity.
And
The P.s also do not—and in our view cannot—provide an adequate response to an issue raised most effectively by minor’s appellate counsel. Even though they appear before the court by virtue of their status as de facto parents, the P.s’ efforts to show good cause are motivated by their own interests. Minor’s counsel, not the P.s, has a legal and ethical obligation to represent Alexandria’s interests.(In re Josiah Z. (2005) 36 Cal.4th 664, 675-677.) The P.s lack the right to assert Alexandria’s interests because Alexandria has her own counsel, who represents her interests and also acts as her guardian ad litem.
***We recognize that the P.s are claiming that Alexandria’s best interests are served by a finding of good cause, but their argument is undermined by the fact that minor’s counsel argued just the opposite. We are unaware of any published case where a court has upheld a departure from the ICWA’s placement preferences contrary to the position of the minor. In other words, in every published case upholding a good cause finding,
counsel for the minor either advocated for the finding, was aligned with the party advocating for a finding of good cause, or was silent.
ICWA Guidelines Presentation to Utah Juvenile Judges
Just got to the hard part when they took the picture!
Latest Legal Developments in California ICWA Case
From the docket:
The writ of supersedeas was denied. Here.
The application to transfer the case out of the court of appeals and directly to the California Supreme Court was also denied. Here.
The underlying appeal against the placement order remains open in the California court of appeals. Here.
What is a writ of supersedeas? It’s what California still calls a stay of proceedings. A writ of supersedeas is defined in California’s Rules of Court here. Under rule 8.824, a writ of supersedeas is a stay of a judgment or order pending appeal. The petition for the writ must bear the same title (or name) as the appeal (hence a lot of confusion). In this case, the petition for the writ was filed to in an attempt to stop the transfer placement to Utah while the California court of appeals hears the foster parents’ appeal of the March 8th placement order. The court of appeals denied the petition for the writ of supersedeas on March 18. The first time this case went up on appeal, the appeal process took nine months from filing to opinion.
In addition, the California Rules of Court allow for a transfer of a case pending in the court of appeals to the California Supreme Court. Rule 8.552 allows a party to petition for the transfer, but the case must present “an issue of great public importance that the Supreme Court must promptly resolve.” in order for the transfer to be granted.
Tl;dr? The case is ongoing, it will stay in the California court of appeals for now, but the child will not be moved back to California during the pendency of the appeal.
Indian Country Statements and Some Law Regarding the California ICWA Case
NICWA’s statement.
Choctaw Nation’s statement.
NCAI’s statement.
California Children’s Law Center statement.
NAJA’s statement.
We will continue to add statements from other groups as we receive them. And, because it’s what we do, we’ve created a page with all of the publicly available primary source documents in this case. You can find that here.
The foster parents’ attorney has issued a statement claiming she will use this case to appeal ICWA up to the U.S. Supreme Court if necessary. We’ve heard this before, and there are very few legal routes left for them to do that, but we still expect they will try them all.
Meanwhile, this case is not just about Indian Country. The role of foster care in this country is clear–to provide a temporary, loving home for a child while her family receives services to so the child can go home safely. It is also provides time for the state to search for other -relative- homes for the child. This is a best practice regardless of whether the child is Native or not. It’s actually state law in California. Ann.Cal.Welf. & Inst.Code § 361.3. In fact, it’s the law in a lot of states. That’s because relative preference in placement is also required by the federal government for states to receive Title IV-E funding. 25 U.S.C. 671(a)(19). Preventing a child from living with her siblings and relatives –family she knows, and who have spent considerable time planning this transition– contrary to court order is not the role of foster parents.
Finally, the use of the media in this case to inflame opinion, spread false information about the situation, publicize a child’s name and face, and to try to dismantle ICWA itself [again] is deplorable. The type of comments that NICWA, the California Children’s Law Center, Choctaw Nation and other individuals are receiving, particularly on social media, should disturb us all. Those taking the brunt of this deserve our full support and thanks.
Additional Resources:
The Michigan Legislature
The Washington Legislature
The Nebraska Legislature
The Minnesota Legislature
The Wisconsin Legislature
The California Legislature
2013 Statement of National Council Juvenile and Family Court Judges
2013 Position Statement of Casey Family Programs
2013 Press Release of the following child welfare organizations in support of ICWA: Casey Family Programs, Children’s Defense Fund, Child Welfare League of America, Annie E. Casey Foundation, Donaldson Adoption Institute, North American Council on Adoptable Children, Voice for Adoption, Black Administrators in Child Welfare, Inc., Children and Family Justice Center, Family Defense Center, First Focus Campaign for Children, Foster Care Alumni of America, FosterClub, National Alliance of Children’s Trust and Prevention Funds, National Association of Public Child Welfare Administrators, National Association of Social Workers, National Court Appointed Special Advocate Association, and National Crittenton Foundation.
Response to Media Dustup in California ICWA Case
NICWA’s statement:
We are disturbed by this weekend’s flurry of negative media attention regarding the attempted reunification of a child with her family in Utah. In this contentious custody case, there have never been any surprises as far as what the law required. The foster family was well aware years ago this girl is an Indian child, whose case is subject to the requirements of the Indian Child Welfare Act (ICWA), and who has relatives who were willing to raise her if reunification with her father was unsuccessful.In fact, the only surprising turn of events is the lengths the foster family has gone to, under the advice of an attorney with a long history of trying to overturn ICWA, to drag out litigation as long as possible, creating instability for the child in question. That the foster family now argues bonding and attachment should supersede all else despite testimony of those closest to her case, seems like a long-term, calculated legal strategy based on the simple fact that the law was always clear, they understood it, but just chose not to abide by it.The purpose of foster care is to provide temporary care for children while families get services and support to reunite with their children, not to fast-track the creation of new families when there is extended family available who want to care for the child. The temporary nature of these relationships is also the reason we view those who serve as foster parents as selfless and nurturing individuals. Reunification and placement with extended family whenever possible is best practice for all children, not just Native American children.We call on the media to provide balanced reporting and to ask vital questions regarding these facts before inflaming the public and subjecting the privacy and future well-being of a little girl to national debate.
Our previous coverage of the appeal of this case is here.
As always, we remain concerned with the lack of privacy for a child who doesn’t get to make decisions about her identity being put forward into the press. In perhaps no surprise to anyone, this case involves repeat players from the Adoptive Couple v. Baby Girl case.
ICWA Placement Preferences Case out of Alaska
Here.
The superior court again concluded that [grandparents] were not an appropriate placement because of their attitude and failure to give Caitlin’s medical equipment to OCS.
***
The superior court’s finding that the grandparents were an unsafe placement is supported by substantial evidence in the record. We therefore affirm the superior court’s decision to deny placement with [grandparents].
ICWA Placement Preference and Burden of Proof Case Out of Oklahoma Supreme Court
Here.
The Honorable Wilma Palmer, Special Judge, for the District Court of Tulsa County, ordered the transfer of a minor child S.A.W., from a foster home to a home compliant with the Indian Child Welfare Act. The State, natural father, natural mother, child, and foster mother appealed. The Court of Civil Appeals reversed the order of the district court and the Cherokee Nation sought certiorari. We previously granted certiorari. We hold that appellants failed to satisfy their burden that natural father was not a member of his tribe. The Cherokee Nation met its burden to show that the child was subject to the Indian Child Welfare Act. We hold that when a tribe fails to provide timely temporary foster care with an ICWA-compliant home and an ICWA-noncompliant family seeks a permanent placement, the trial court should consider harm to the child resulting from a tribe’s untimely motion to move the child to an ICWA-compliant home. We hold the proper standard for a party showing a need for an ICWA-noncompliant child placement is clear and convincing evidence, and that appellants met this burden. We reverse that portion of the trial court’s order directing an ICWA-compliant placement. We hold that the appellants’ additional arguments for challenging application of the ICWA are insufficient and affirm the trial court in part, and remand for additional proceedings.
Unreported ICWA Placement Preference Case out of California
Here.
Very difficult case with extensive testimony. Child was ultimately placed with distant cousins instead of grandparents with a history with the department. The court found good cause to deviate from the tribe’s preferences of matrilineal relatives.
Because there is so much testimony in this opinion, it gives a window into the way the lower courts are making these decisions, and how the court understands how children connect to their tribal communities:
[Foster parent] already encouraged [three year old child] to look at Chickasaw language flashcards and language applications, to make beaded necklaces, and to hunt, fish, and pick berries.
The Department’s report recommending good cause to deviate from placement preferences included this very frustrating statement:
It is unfortunate that that [sic] tribe is so distant and has not had the opportunity to meet Autumn and the people she considers to be parents. If they had, they may decide that it is in actuality in their tribe’s best interest to avoid placement disruption and the possibility of creating an attachment disorder in this young child who currently has such a bright future.
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