At the Michigan Supreme Court:
Appellee (Macomb County/State)’s Brief
Sault Tribe Amicus Brief (MSU Indian Law Clinic, ICWA Appellate Project co-wrote this brief)
termination of parental rights
Termination of Parental Rights Decision out of Wisconsin
The Wisconsin Court of Appeals affirmed a termination of parental rights decision under ICWA and WICWA using Adoptive Couple v. Baby Girl (finding abandonment/lack of continued custody by non-Indian father).
ICWA Expert Witness Case out of Colorado
Opinion here. The Colorado Court disagrees with holdings in Montana and Michigan on the same issue–what does a qualified expert witness have to say for it to count under 25 U.S.C. 1912(f).
Congress’s primary reason for requiring qualified expert testimony was to prevent courts from basing decisions “solely upon the testimony of social workers who possessed neither the specialized professional education nor the familiarity with Native [American] culture necessary to distinguish between cultural variations in child-rearing practices and actual abuse or neglect.” Steven H., 190 P.3d at 185 (quoting L.G. v. State, 14 P.3d 946, 952- 53 (Alaska 2000)). This purpose would not necessarily be furthered by a requirement that an expert witness recite the precise language of 25 U.S.C. § 1912(f).
***
Although [the Regulations and Guidelines] emphasize the need for a qualified expert witness to offer testimony supporting a finding regarding likely damage to the child, they stop short of demanding a verbatim recitation of the statutory standard by the expert.
***
Additionally, the Department presented testimony from a
qualified expert witness under ICWA — a social worker with Navajo Children and Family Services. The social worker did not directly opine that the child would suffer damage in mother’s care. Rather, when asked to give her opinion regarding whether the child would suffer serious emotional or physical harm if returned to a parent, the social worker indicated that mother had not fulfilled the treatment requirements to address the reasons for the child being placed in the Department’s custody. The social worker also testified that the recent domestic violence issues between the parents were concerning.
ICWA Inquiry Case out of Colorado Court of Appeals
Here.
To decide if the trial court complied with ICWA, we must answer a question that has yet to be decided in Colorado: When a trial court inquires at an initial temporary custody hearing at the commencement of the dependency and neglect proceeding whether there is a reason to know that the child is an Indian child, must it make another inquiry when termination is sought? We conclude that the answer is “yes,” at least when the court has not already identified the child as an Indian child and the petitioning party has not disclosed what efforts it has made to determine if the child is an Indian child.
Termination of Parental Rights ICWA Case Out of Missouri
Here.
This case is illustrative of a lot of the things we talk about regarding practicing in an unfamiliar forum, and getting objections on the record.
The Tribe (Nenana Native Village) brought an appeal regarding the termination of parental rights, though the Tribe also has motions pending at the trial level to transfer jurisdiction and/or get the children in a preferred placement.
The state filed its petition against the Mom on June 11, 2015. The state sent notice on February 23, 2016. No reason for the eight month delay on notice is given in the opinion. In November of 2016 the state filed a petition to terminate parental rights. At that time, Mom agreed to voluntarily relinquish her parental rights. This is a regular issue under ICWA, because while Mom is voluntarily relinquishing, it is under state threat of termination. The Tribe argued that the state needed to at least follow 25 U.S.C. 1913’s requirements for voluntary relinquishment (it didn’t).
The court agreed the tribe had standing to bring the appeal (after much writing, but 25 U.S.C. 1914 ensures the tribe’s standing to appeal violations of 1911, 1912, or 1913), but disagreed that either the qualified expert witness was a problem, or that the state not following 1913 was a “manifest injustice”.
As a side note, the court also fundamentally misunderstands the difference between federal guidelines and federal regulations:
The Tribe’s argument on this point relies upon 25 C.F.R. Sec. 23.122(a), which provides guidance in interpreting Section 1912(f). Promulgated by the Bureau of Indian Affairs and published as regulations for interpreting the I.C.W.A., Section 23.122 notes that: [a] qualified expert must be qualified to testify regarding whether the child’s continued custody by the parent . . . is likely to result in serious emotional or physical damage to the child and should be qualified to testify as to the prevailing social and cultural standards of the Indian child’s Tribe. 25 C.F.R. Sec. 23.122(a).
We note that while “[t]hese guidelines are helpful[, they] are not binding upon state proceedings.” C.E.H., 837 S.W.2d at 953 (citing Matter of Adoption of T.R.M., 525 N.E.2d 298, 307 (Ind. 1988)). This is because the “primary responsibility for interpreting language used in the [I.C.W.A.] rests with the courts that decide . . . cases [involving Native American children].” Id.
Finally, case also illustrates a point Victoria Sweet and I have presented on a number of times–preserving the record for appeal. Part of the issue with the case is the lack of objection from the Tribe below about the QEW, her testimony, or the termination itself. There are a lot of reasons why this might happen, but I’m using this case to reiterate: if a tribe disagrees with something that is happening in trial court, SAY SO OUT LOUD IN COURT (on the record). It might be terrifying to do so. The judge might get angry, but ultimately the proceeding will continue. Later, though, if the tribe decides to appeal, the issue is preserved. Absent that preservation, the court of appeals will use a lower standard to review the trial court (if it reviews it at all), and as in this case, use a “plain error” standard and find there is none.
This is an opinion full of incredibly annoying legal details the court wanted the Tribe do to, while the state failed to follow any of the legal details in ICWA.
Nebraska Supreme Court ICWA/NICWA Decision
Here.
This is a tough case of intergenerational removal. The Nebraska Supreme Court finds that both ICWA and NICWA apply to non-Indian parents of Indian children as defined by the statutes. The Court also found that NICWA’s different language in its active efforts provision, which requires active efforts not just to prevent the break up of the family, but to unite the parent with the Indian child, means the Baby Girl holding does not apply to that provision of state law. However, where NICWA’s language is the same as ICWA’s regarding “continued custody” in the termination of parental rights section, the Baby Girl holding does apply, and there is no need to find the continued custody of the child will result in serious physical or emotional damage, where the parent hasn’t had custody of the child.
While the new federal Regulations, which go into effect next week, are useful for tribes and Native families, state ICWA laws continue to hold the most promise for enforcement of the law in the courts. If your state is contemplating drafting one (either through a tribal-state workgroup, Court Improvement Program, or other mechanism), there are resources and people available to provide research and assistance.
Article on the Disparity Between the States Regarding Termination of Parental Rights
Here. Not ICWA-specific, but an interesting article on the wide difference of the states in terminating parental rights.
Across the country, the availability of effective support services is viewed as crucial in helping reduce the need for foster care placements and parental rights terminations, both of which are considered undesirable outcomes for most children.
Professor Martin Guggenheim, a child welfare expert at New York University School of Law, is among those contending that too many parents lose their rights and too many children go into foster care. Parents’ legal prospects vary widely from state to state when it comes to challenging termination, he says; many who are indigent are represented by court-appointed lawyers with heavy caseloads.
Too often, Guggenheim said, terminations produce “legal orphans” — young people who are separated from their parents, then do not receive a successful adoption placement, and eventually age out of the foster care system on their own.
“They’ve lost their family and gained nothing in return,” he said.
Nationwide, according to federal figures, the number of children affected by parental rights terminations declined from 85,525 to 64,398 between 2005 and 2014, mirroring a broader drop in the number of children placed in foster care. Arizona and Texas were among a handful of states bucking the trend, with more terminations and more children in care.
Figures from Arizona show how difficult it is for a parent to block a termination order once it’s requested by child-welfare officials. In a six-month period last year, 2,232 termination petitions were granted and seven were denied.
As a side note, Professor Guggenheim was one of the lead attorneys on the ICWA/Gold Standard Baby Girl amicus brief.
Michigan COA Termination of Parental Rights Case Based on Prior Tribal Court Termination
State court used tribal court termination of parental rights to another child to fulfill a state termination of parental rights. Seems strange there is no mention of ICWA or MIFPA in the case, though it’s possible the father only appealed the reliance the on tribal court termination.
Unpublished Illinois ICWA Case on Termination Standard
Here. Fairly long case to be unpublished, and odd reading for an ICWA case–separating out the language of “beyond a reasonable doubt” from the additional standard that “continued custody of the child by the parent . . . is likely to result in emotional or physical damage to the child.” Rather, the court held:
The conduct by both parents shows the absence of concern, interest, and responsibility as to their children under both the clear-and-convincing and reasonable-doubt standards.
Termination ICWA Case Out of Texas Court of Appeals
Here.
The opinion is 28 pages long and the court addresses notice (actual notice was sufficient even if not strictly ICWA compliant), active efforts (happened), state law requirements (harmonious with ICWA), standard of proof (met), jury instructions (adequate), expert witness testimony (was interesting) . . .
Having viewed the evidence in the light most favorable to the verdict, we conclude that the Department proved beyond a reasonable doubt that (1) active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and that these efforts have proved unsuccessful, (2) that the continued custody of K.S. by D.S. is likely to result in serious emotional or physical damage to K.S., and that (3) the finding is supported by testimony from an expert witness. See 25 U.S.C.A. §§ 1912(d), (f); Jackson, 443 U.S. at 319, 99 S. Ct. at 2789.
Turtle Talk 