placement preferences

Placement Preference Case out of Nebraska Court of Appeals

Kate Fort

Here.

In conclusion, we find that good cause exists for a deviation from statutory placement preferences under the ICWA and that the trial court did not err by denying the Tribe’s motion to change placement. Further, the record supports a showing by a preponderance of the evidence that active efforts were made by DHHS to prevent the breakup of the Native American family. Therefore, we affirm the order of the trial court.

The Court cited to the ’79 Guidelines and state law to find ICWA’s placement preferences do not require “strict placement,” but are a “statutory preference” to be allowed “absent good cause to the contrary.”

Complaint in National Council for Adoption v. Jewell–Litigation Challenging the 2015 ICWA Guidelines

Kate Fort2 Comments

Here.

Plaintiffs argue the 2015 Guidelines violate the APA, due process of birth parents and children, equal protection of birth parents and children, the 10th amendment, and manage a quick sideswipe at ICWA itself on page 38 (exceeds Congress’s authority under the Indian Commerce Clause).

California ICWA Decision on Placement Preferences and Standing

Kate Fort

Here.

Mother did not have standing to challenge a violation of placement preferences once her parental rights were terminated.

ICWA Placement Preferences Case out of Oklahoma

Kate Fort

A disturbing case that is also a prime example of why ICWA Regulations are needed in addition to the new Guidelines (submit comments by MAY 19!)

Opinion here.

The court reads a best interest determination into the good cause to deviate from placement preferences, and skates alarmingly close to the existing Indian family exception reasoning.

Developments in Alaska ICWA Case, Native Village of Tununak v. State of Alaska

Kate Fort2 Comments

State’s (AG) Response to Tribe’s Pet for Rehearing

Earlier briefs on the rehearing petition are here.

The Alaska executive branch published emergency regulations addressing formal petitions for adoptions in cases involving Indian children: Emergency Regulations 7 AAC 54.600

Here is the draft state bill sent to the Legislature by the Governor: Draft Bill

These emergency regulations allow for a simple request by a relative, tribal member or other Indian family at any court hearing, or a request by the same conveyed to the department by phone, mail, fax, email or in person, or by the request of the child’s tribe on behalf of a relative or tribal member to constitute a proxy for a formal petition for adoption.

In addition, the Governor is holding a press conference on this today (10:30am/2:30pm EDT) :

MEDIA ADVISORY

Contact:

Grace Jang, Press Secretary – (907) 465-3976

Katie Marquette, Deputy Press Secretary – (907) 465-5801

Governor Walker to Hold News Conference Tomorrow

WHO: Governor Bill Walker, Lt. Governor Byron Mallott, DHSS Commissioner Val Davidson and Alaska Federation of Natives President Julie Kitka

WHAT: News conference to discuss Indian Child Welfare Act-related emergency regulations

WHEN: Thursday, April 16, 2015, 10:30 a.m. to 11:00 a.m.

WHERE: Governor’s Cabinet Room, Capitol Building, Juneau

TELECONFERENCE NUMBER: (800) 755-6634

LIVESTREAM: gov.alaska.gov/livestream<http://gov.alaska.gov/Walker/multimedia/livestream.html>

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ICWA Termination/Placement Case out of California

Kate Fort1 Comment

Here. Straightforward case, but an example of a clan mother from a tribe (Tuscarora) in New York working with California social services to find multiple placements for the baby.

ICWA Placement Preference Decision Out of California Involving Choctaw Tribe

Kate Fort3 Comments

Here.

This is a re-occurring and incredibly frustrating ICWA fact pattern–if the ICWA compliant placement is out of state, or far away from the parents, and the goal is reunification, it makes sense for the tribe and state to allow for a non-compliant ICWA placement near the parents. What happens, however, when reunification fails? As in this case, a court is often unwilling to remove the child from the home she has been in for anywhere from one to three years. Honest, actual, concurrent permanency planning could help with this, but while that is a best practice, it does not seem to be happening with any regularity at the state.

Concluding that the ICWA’s adoptive placement preferences do apply to this case, we then review the trial court’s order finding that the P.s failed to produce clear and convincing evidence of good cause to depart from those placement preferences. We determine that the court applied the correct burden of proof by requiring the P.s to prove by clear and convincing evidence that there was good cause to deviate from section 1915’s placement preferences. However, the court erroneously required the P.s to prove a certainty that Alexandria would suffer harm if moved, and failed to consider Alexandria’s best interests or her bond with the P.s in determining good cause.

***

We recognize that a final decision regarding Alexandria’s adoptive placement will be further delayed as a result of our determination of the merits of this appeal. That delay is warranted by the need to insure that the correct legal standard is utilized in deciding whether good cause has been shown that it is in the best interest of Alexandria to depart from the ICWA’s placement preferences.

As also often happens, the parties start arguing about the very constitutionality of ICWA, making this case a “not as bad as it could have been” case–the court didn’t find ICWA is unconstitutional, nor does Adoptive Couple apply (as the de facto parents argued) to this fact pattern. And yet, the trial court decision placing the child with her extended family is still overturned based on the child’s best interest standard. Getting courts to acknowledge that the best interests of a child ought to include the child’s whole life, not just the one transition in front of the court at that moment, is both vital and seemingly impossible.

For the (depressing) record, here is Evelyn Blanchard writing the same thing in 1977 in The Destruction of American Indian Families, ed. Steven Unger (Association of American Indian Affairs 1977).

(Happy to post redacted briefs if we receive any)

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.

Unpublished Placement Preferences Case out of California

Kate Fort

Troubling reasoning that if the Tribe did not ask for nor provide a placement, the court did not have to abide by ICWA placement preferences.

Here.

Cherokee Nation Changes Placement Preferences Under ICWA

Kate Fort

Article here.

The tribal resolution, which passed unanimously, states: “In any adoptive placement of a Cherokee child under state law, a preference shall be given, in the absence of good cause to the contrary, to a placement with a biological parent or parents; a member of the child’s extended family; other members of the Cherokee Nation; or other Indian families.”