We also conclude that when the Department has reason to believe that a child is an Indian child under ICWA and WICWA, the heightened removal standard in those statutes applies to ex parte pick-up order requests. Because the Department had reason to know A.W. is an Indian child–information not shared with the trial court–and the trial court appliced an incorrect legal standard in assessing the Department’s evidence at that stage of the proceeding, the trial court erred in not vacating the pick up order.
Catching up on posting the summer’s reported ICWA cases, so I’m starting with this Washington Supreme Court opinion on active efforts for the initial or shelter care hear.
We took discretionary interlocutory review of this case primarily to decide whether WICWA required the State to take active efforts to prevent the breakup of J.M.W.’s family before taking him into emergency foster care. Consistent with the plain text and purpose of WICWA, we conclude that it did. We also conclude that the trial court was required to make a finding on the record at the interim shelter care hearing that J.M.W.’s out of home placement was necessary to prevent imminent physical damage or harm. We remand to the trial court for further proceedings consistent with this opinion.
This opinion is trying to find some clarity in what ICWA standards apply when. Here are the two questions the Court sought to answer:
First, whether the department is required to make active efforts to keep an Indian child with their family under such circumstances as presented here. Second, whether the trial court was required to make a formal finding at the interim shelter care hearing that continued placement out of the home was necessary to prevent imminent physical damage or harm to the child.
The section question is essentially asking if the emergency standard of 1922 should apply whenever a child is placed out of the home and there is no 1912 (active efforts, QEW) findings. Interim shelter care hearings often happen before a jurisdictional/adjudication hearing, and can sometimes (often) extend the time before adjudication hearing happens. In many states the 1912 findings happen either at adjudication or even after that, at the disposition hearing.
Justice Montoya-Lewis does it again, soundly rejecting the futility doctrine when it comes to providing active efforts to parents, and providing a treatise on what active efforts are and why ICWA requires them. Trying to pull out one quote is nearly impossible–just go read from page 16 to the end. And her last paragraph may become on one of the most quoted in ICWA caselaw:
The history of the United States and its relationship with Native tribes, communities, and families tell a story of promises made and broken. We rely on the commitment made by Congress and the Washington State Legislature to decline to remove Native children from their families and communities unless absolutely necessary and to actively work toward reunification in those limited instances when the high standard for removal has been met. Today, we hold our state child welfare system and our courts to those promises. We reverse the dependency court’s finding that the Department provided active efforts and remand to the trial court with instructions to order the Department to provide active efforts in accordance with this ruling. We also order the dependency court to not proceed to hear the termination petitions until the Department has provided active efforts.
In addition, the Washington team assembled a number of amicus briefs (including the MSU Indian Law Clinic) on this case. A special shout out to Tara Urs for being so on top of these cases every time.
The Supreme Court reversed the Court of Appeals. Justice Montoya-Lewis wrote the unanimous opinion.
The opinion is here:
It is a long opinion with a lot of history, and information. Friend of the blog Sandy White Hawk is featured extensively. There are important law review articles and social science articles cited.
Importantly for future cases, the Court held “We hold that a court has a ‘reason to know” that a child is an Indian child when any participant in the proceeding indicates that the child has tribal heritage.”
The Indian Law Clinic at MSU represented the Tribes in this case, along with the Center for Indigenous Research and Justice.
(To be clear I am Very Excited about this and it is a Big Deal.)
It took me a while to read this whole opinion and there are a lot of issues. But to start, I’d note that unlike some arguments in another unnamed federal ICWA case (Brackeen, it’s Brackeen), this case is yet another every day example where a state has to prove the best interests of the child standard and the ICWA standard–the ICWA standard didn’t supplant BIOC.
That said, there is some unnecessary Michigan trash talking in this case as the Court happily finds active efforts is more than reasonable efforts, but unhappily choses to adopt a “futility doctrine” for the active efforts finding. The futility “doctrine” for active efforts is a judicially created standard to excuse the state from providing active efforts to the parent.
Another court finds that a temporary guardianship where the parent cannot have the child returned upon demand meets the definition of a foster care placement under ICWA. Unfortunately the court decided not to publish the decision.
The ICWA Appellate Project filed an amicus brief in this case with the Center of Indigenous Research and Justice on behalf of minor mom.
Here. In Division 3.
The MSU Indian Law Clinic and Center for Indigenous Research and Justice filed an amicus brief supporting the application of ICWA and the minor mom (represented by Northwest Justice Project).
Letter regarding the rule: 18-04-Ltr to Interested Persons.
Comments due by November 29.
Any comment to the rule petition should be filed by November 29, 2018, with the Clerk of Supreme Court, Attention: Deputy Clerk-Rules, P.O. Box 1688, Madison, WI 53701-1688. If possible, email a Microsoft Word version of your response to email@example.com. See comment guidelines at the court’s website at https://www.wicourts.gov/scrules/petitioncomment.htm.
Well, since I did the California post yesterday on this, multiple people from Wisconsin reminded me that we all need to submit supportive comments there. Many thanks to NL for spelling it out in an email so I can just cut and paste it here (ie making it easy for me):
Over in Wisconsin, we have a pending ICWA pro hoc vice rule petition that could use some more supporting comments, especially from adjacent states! You can find the petition here (https://www.wicourts.gov/scrules/1804.htm).
The process for submitting a comment is as follows:
To submit a comment:
I. Submitting a comment to a rules petition
A comment to a pending rule petition shall be submitted in hard copy (include one original and nine copies). The paper copies shall be mailed to the Clerk of the Supreme Court, P.O. Box 1688, Madison, WI 53701.
A person submitting a comment shall e-mail an electronic copy of the comment in MS Word format MS Word to the Office of the Clerk of the Supreme Court at firstname.lastname@example.org and email@example.com.
II. Contents of comment
The comment shall identify the rule petition to which it relates.
III. Service of comment on petitioner
A copy of the comment shall be forwarded to the petitioner in a timely manner. See the rule petition for the name and contact information of petitioner.