Court Cases

Materials related to an Indian child welfare court case in tribal, state, or Federal court.

Supreme Court affirms ICWA

“In adopting the Indian Child Welfare Act, Congress exercised that lawful authority to secure the right of Indian parents to raise their families as they please; the right of Indian children to grow in their culture; and the right of Indian communities to resist fading into the twilight of history. All of that is in keeping with the Constitution’s original design.”

Read the full article at Indian Country Today.

The Supreme Court Just Handed Native Families a Huge Victory

“This case is about children who are among the most vulnerable: those in the child welfare system,” wrote Justice Amy Coney Barrett in the majority opinion. “The bottom line is that we reject all of petitioners’ challenges to the statute, some on the merits and others for lack of standing.”

Read the full article at Mother Jones.

The Supreme Court leaves Indian Child Welfare Act intact

By a 7-to-2 vote, the court upheld the law’s preferences for Native tribes when Indian children are adopted, ruling that the law does not discriminate on the basis of race and does not impermissibly impose a federal mandate on traditionally state-regulated areas of power.

Read the full article at NPR.

Supreme Court Upholds Native American Adoption Law

The Supreme Court on Thursday upheld a 1978 law aimed at keeping Native American adoptees with their tribes and traditions, handing a victory to tribes that had argued that a blow to the law would upend the basic principles that have allowed them to govern themselves.

Read the full article at the New York Times.

Who Should Be Allowed To Adopt Native American Children?

Native American tribes got a big win in August when a federal court upheld the Indian Child Welfare Act, a pivotal 1978 law that requires states to prioritize placing Native children in foster or adoptive homes with Native families over non-Native families. 

But the decision by a three-judge panel of the U.S. Court of Appeals for the 5th Circuit is now being reconsidered by the full court, which announced earlier this month that it is granting a rehearing in a case known as Brackeen v. Bernhardt.

Read the full article at The Huffington Post website.

Tribal families get priority in Native American adoptions. An appeals court will decide whether that’s fair.

In the 40 years since Congress enacted the Indian Child Welfare Act, the law has been criticized in legal challenges that have climbed all the way to the U.S. Supreme Court. But the ICWA, as the act is known, has always prevailed.

Now its constitutionality is being questioned again. On Thursday, the U.S. Court of Appeals for the 5th Circuit agreed to rehear a lawsuit filed by a non-Native American couple in Texas claiming the ICWA discriminates on the basis of race and infringes on states’ rights.

Read the full article at The Washington Post website.

‘We’re under attack’: Tribes defend Indian Child Welfare Act in critical case

After initially deciding the closely-watched case in favor of Indian Country, the 5th Circuit Court of Appeals announced that it will hear the dispute all over again. A larger set of judges will now scrutinize the landmark law but tribal nations remain confident that their sovereign rights and their most precious resource — their children — will win out in the end.

Read the full article at the Indianz.com website.

Fifth Circuit to Rehear Indian Child Welfare Act Challenge

Today, the United States Court of Appeals for the Fifth Circuit issued an order directing a challenge to the Indian Child Welfare Act (ICWA) to be reheard en banc — before the entire Fifth Circuit. As previously reported, a three-judge panel of the Fifth Circuit had held ICWA Constitutional in August, finding it was not a race-based statute that would violate the Equal Protection Clause.

Read the full article at the Indian Country Today website.

Read the statement from the Protect ICWA Campaign at the Native American Rights Fund website.

US Supreme Court declines to hear Oglala, Rosebud case against South Dakota officials

The Supreme Court didn’t give a reason it declined to hear the case that began in 2013, when the Oglala and Rosebud Sioux Tribes and three parents in Pennington County brought a class action lawsuit against state Department of Social Services and Pennington County officials.
The American Civil Liberties Union, representing the tribes and parents, alleged that Native American parents weren’t receiving fair preliminary hearings when their children were removed from the home, including that parents couldn’t have an attorney present and couldn’t see documents given to the court by DSS.

Read the full article at the Argus Leader website.

Commentary: Appeals Court Affirms Indigenous Children Belong to a Political Class, not Racial

In the 21st century, we are still fighting to protect indigenous children whether it is north or south of the Mexican border. The 5th Circuit Court of Appeals decision to uphold the Indian Child Welfare Act was a critical step to keep our families, communities and identities intact. Now, some legal protections need to be enacted for the indigenous children being stolen at the Mexico border.

Read the full opinion piece at the Grand Forks Herald website.

Fifth Circuit Court Rules that ICWA is Constitutional (Brackeen v. Bernhardt)

United States: Fifth Circuit Upholds Indian Child Welfare Act As Constitutional. Akin Gump (Aug. 14, 2019)

Federal District Court of Appeals Upholds Indian Child Welfare Act. Nonprofit Quarterly (Aug. 13, 2019)

EDITORIAL: ICWA ruling a victory for tribes. Tahlequah Daily Press. (Aug. 13, 2019)

Fifth Circuit Court reaffirms Indian Child Welfare is constitutional. The Ada News (Aug. 12, 2019)

Paxton likely to challenge ruling upholding Indian adoption law. Austin Statesman (Aug. 12, 2019)

Fifth Circuit Squarely Rejects Challenge to ICWA. The National Law Review (Aug. 12, 2019)

Indian Child Welfare Act Upheld By Fifth Circuit. KGOU (Aug. 12, 2019)

5th Circuit upholds Indian Child Welfare Act as constitutional, reversing lower court. The TexasTribune (Aug. 10, 2019)

Court panel upholds Indian Child Welfare Act. Newscenter ABC 11 (Aug. 9, 2019)

Federal Law Protecting Indian Children and Families Will Stand. The Chronicle of Social Change (Aug. 9, 2019)

Court ruled that ICWA is constitutional. Indian Country Today (Aug. 9, 2019)

How a Right-Wing Attack on Protections for Native American Children Could Upend Indian Law

A LAW KEY  to preventing state welfare agencies from separating Indigenous children from their families is at risk of being overturned thanks to the yearslong effort of a network of libertarian and right-wing organizations.

In the 1970s, between a quarter and a third of Indigenous children across the United States had been removed from their homes. Social services often cited neglect or deprivation — euphemisms for poverty — as grounds for placing children in the custody of non-Native families and institutions, offering birth parents little opportunity for redress. Congress passed the Indian Child Welfare Act in 1978 in order to reform a system designed to destroy Indigenous people.

Read the full article at The Intercept website.

Who Can Adopt a Native American Child? A Texas Couple vs. 573 Tribes


Zachary, or A.L.M. as he is called in legal papers, has a Navajo birth mother, a Cherokee birth father and adoptive parents, Jennifer and Chad Brackeen, neither of whom is Native American. The Brackeens are challenging a federal law governing Native American children in state foster care: It requires that priority to adopt them be given to Native families, to reinforce the children’s tribal identity.

Read the full article at the New York Times website.

US Supreme Court Denies Review of Arizona Child Welfare Case


The U.S. Supreme Court has denied review of an Arizona case challenging a law that gives preference to American Indians in adoptions of Native children.
The order last week leaves in place a lower court ruling that dismissed a complaint from a Phoenix-based, right-leaning think tank.

Read the full article at the Navajo-Hopi Observer.

Read related article from the Navajo-Hopi Observer: “Indian Child Welfare Act Still Under Debate as Supreme Court Rebuffs Bid to Void the Act.”

Navajo Nation v. Department of Child Safety, April 18, 2019 (Court of Appeals of Arizona)

Synopsis provided by Westlaw: After child, a member of a Native American tribe, was removed from biological mother’s care by Department of Child Safety, mother moved to appoint child’s foster placement, who was not affiliated with child’s family or tribe or any Native American organization, as child’s permanent guardian, and tribe indicated that mother or Department would need to provide expert witness to testify regarding child’s placement, as required by Indian Child Welfare Act. The Superior Court, Maricopa County, Arthur T. Anderson, J., without hearing testimony from qualified expert witness, found good cause to place child in non-ICWA-preferred placement, and appointed child’s foster placement as her permanent guardian. Tribe appealed.

Holdings provided by Westlaw: The Court of Appeals, Howe, J., held that:
1) provision of ICWA prohibiting courts from placing children who are members of tribes into foster placement without first hearing expert testimony applied, and
2) mother’s proposed expert witness was not qualified.
Vacated and remanded.

Read the full decision at the National Indian Law Library website.

Navajo Nation Wins Appeal in Indian Child Welfare Act Case


The Arizona Court of Appeals ordered a new hearing Thursday over the guardianship of a 6-year-old child who is subject to the Indian Child Welfare Act.

The Navajo Nation appealed the case, The Navajo Nation v. Department of Child Safety et al., in October 2018 after the juvenile court failed to hear the testimony of a qualified expert witness as required by the ICWA in the child’s guardianship case.

Read the full article at the Arizona Public Media website.

Mitchell v. Preston, April 16,2019 (Supreme Court of Wyoming)

Synopsis provided by Westlaw: Following extensive litigation in child custody action, 2018 WY 110, 426 P.3d 830, father, an Indian tribe member who kept child on reservation, filed motion to establish jurisdiction in tribal court and motion for change of venue, seeking an order relinquishing permanent child custody jurisdiction to the tribal court. Mother, who was not a member of the tribe and who had been awarded primary custody of child, filed motion to strike. The District Court, Sheridan County, Norman E. Young, J., granted mother’s motion, and father appealed.

Holdings provided by Westlaw: The Supreme Court, Kautz, J., held that:
1) Indian Child Welfare Act (ICWA) did not apply, and
2) even assuming ICWA applied, tribal court’s emergency orders under Parental Kidnapping Prevention Act (PKPA) did not give tribal court jurisdiction to make permanent custody decisions.
Affirmed.

Read the full decision at the National Indian Law Library website.

Matter of Guardianship I.L.J.E., December 12, 2018 (Supreme Court of South Dakota)

Synopsis provided by Westlaw: Brother and sister-in-law of mother killed by child’s father petitioned for guardianship of child, but father requested that his sister, a Native American, be appointed guardian of child, who was an enrolled member of a tribe. The Circuit Court, Third Judicial Circuit, Brookings County, Gregory J. Stoltenburg, J., granted brother and sister-in-law’s petition. Father appealed.

Holdings provided by Westlaw: The Supreme Court, Zinter, J., held that:
1) trial court had jurisdiction pursuant to the Guardianship Act to transfer custody of child;
2) brother and sister-in-law were not required to provide father with each one of the procedural protections required in state-instituted abuse and neglect proceedings;
3) trial court’s requirement that father appear via interactive television at hearing did not deprive father of due process; and
4) trial court did not abuse its discretion in appointing brother and sister-in-law permanent guardians.
Affirmed.

Read the full decision at the National Indian Law Library website.

In re Shirley T., January 3, 2019 (Supreme Judicial Court of Maine)

Synopsis provided by Westlaw: In child protection proceeding involving children deemed to be Indian children under the Indian Child Welfare Act (ICWA), parents and Indian tribe moved to transfer jurisdiction of matter to Tribal Court. The Portland District Court, Powers, J., denied the motions. Parents appealed.

Holding provided by Westlaw: The Supreme Judicial Court, Gorman, J., held that trial court had “good cause,” within meaning of ICWA, not to transfer matter to Tribal Court.
Affirmed.

Read the full decision at the National Indian Law Library website.

In re Interest of Mercedes L., January 15, 2019 (Court of Appeals of Nebraska)

Synopsis provided by Westlaw: In child protection proceedings, the County Court, Platte County, Frank J. Skorupa, J., approved a change in permanency objective for mother and each of her six minor children from reunification to guardianship. Mother appealed, and appeals were consolidated.

Holdings provided by Westlaw: The Court of Appeals held that:
1) orders issued by juvenile court approving change in permanency objective affected mother’s substantial rights and, thus, were final appealable orders;
2) changing permanency objective for mother and each of her six minor children from reunification with concurrent plan for guardianship to guardianship only was in children’s best interests; and
3) State made adequate active efforts prior to seeking change in permanency objective with respect to Indian children.
Affirmed in part and vacated in part.

Read the full decision at the National Indian Law Library website.

In re. L.D. v. M.J., January 24, 2019 (Court of Appeals of California)

Synopsis provided by Westlaw: County department of family and children’s services filed juvenile dependency petition on behalf of nine-year-old child who may have Native Alaskan ancestry. The Superior Court, Santa Clara County, No. 17JD024833, Michael L. Clark, J., found sufficient notice was sent, pursuant to the Indian Child Welfare Act (ICWA), to Athabascan Indian tribe in Alaska before declaring child dependent. The court subsequently issued restraining order protecting child from mother, and mother was later found to have violated restraining order by possessing or having access to handgun. Mother appealed to challenge the ICWA notice.

Holding provided by Westlaw: The Court of Appeal, Grover, J., held that mother’s challenge to ICWA notice was untimely.
Appeal dismissed.

Read the full decision at the National Indian Law Library website.

In re Interest of Audrey T., January 29, 2019 (Court of Appeals of Nebraska)

Synopsis provided by Westlaw: State filed an adjudication petition alleging that mother was unable to meet child’s basic needs for care and protection, mother used inappropriate discipline, and mother’s mental-health issues put child at risk of abuse and/or neglect. The County Court, Scotts Bluff County, James M. Worden, J., entered an order placing temporary custody of child with Nebraska’s Department of Health and Human Services. State then filed motion to terminate mother’s parental rights. The County Court granted the motion. Mother appealed.

Holdings provided by Westlaw: The Court of Appeals, Welch, J., held that:
1) there was clear and convincing evidence that child had been in an out-of-home placement for 15 or more months of the most recent 22 months, as statutory ground for termination of mother’s parental rights;
2) opinion testimony from qualified expert supported finding that continued custody by mother was likely to result in serious emotional or physical damage to child;
3) evidence showed that termination of mother’s parental rights was in child’s best interests; and
4) evidence established that tribe in which child was enrolled was given proper notice of proceedings.
Affirmed.

Read the full decision at the National Indian Law Library website.

Matter of S.R., February 21, 2019 (Supreme Judicial Court of Montana)

Synopsis provided by Westlaw: Department of Public Health and Human Services petitioned to terminate mother’s parental rights to children. The District Court, Silver Bow County, Brad Newman, J., terminated rights. Mother appealed, arguing that District Court had possessed reason to know that children could have been eligible for tribal enrollment so as to trigger Indian Child Welfare Act’s (ICWA) tribal notice and enrollment eligibility determination requirements, yet District Court had failed to observe requirements.

Holdings provided by Westlaw: The Supreme Court, Dirk Sandefur, J., held that:
1) the District Court had possessed reason to know that children could have been eligible for tribal enrollment, triggering ICWA requirements, but
2) the District Court’s failures to comply with ICWA had been harmless.
Affirmed.

Read the full decision at the National Indian Law Library website.

Appeals Court Hears Case on Adoptions of Native Americans


 1978 law giving preference to Native American families in foster care and adoption proceedings involving American Indian children is an unconstitutional race-based intrusion on state powers that has caused families to be “literally torn apart,” an attorney told a federal appeals court March 13.
But supporters of the decades-old law say it’s needed to protect and preserve Native American culture and families. In court, lawyers for Indian tribes argued that the law’s definition of an Indian child is based not on race, but on tribal political affiliations.

Read the full article at the Navajo-Hopi Observer website.

Stateline: Indian Child Welfare Act Likely Headed to Supreme Court


A case before a federal appeals court could upend an historic adoption law meant to combat centuries of brutal discrimination against American Indians and keep their children with families and tribal communities.
For the first time, a few states have sued to overturn the federal Indian Child Welfare Act, which Congress enacted in 1978 as an antidote to entrenched policies of uprooting Native children and assimilating them into mainstream white culture.
Now, in a country roiled by debates over race and racial identity, there’s a chance the 41-year-old law could be overturned by the U.S. 5th Circuit Court of Appeals, considered the country’s most conservative court. (The law applies to federally recognized tribes.)

Read the full article at the Indianz.com website.

Fawn Sharp: The Attack on the Indian Child Welfare Act Cannot Stand & Louisiana Solicitor General Commentary “absurd and illogical”


With the fate of the Indian Child Welfare Act in the hands of a federal appeals courts, tribes and some states have come together to defend the law, which Congress enacted in 1978 to address the high rates of Indian children being taken from their families and their communities.

Read the full opinion piece at the Indianz.com website.


I felt compelled to write today after reading a recent commentary by the Louisiana solicitor general criticizing the Indian Child Welfare Act (ICWA). It is absurd and illogical to compare the placement of an Indian child with a tribal family to sending a child off to live in a foreign country. 

Read the full letter at The Advocate website.

Media Coverage of Fifth Circuit Hearing in Brackeen v. Bernhardt


Non-Indians think they know better than Indians what is best for Native American children, said lawyers for the Navajo Nation in arguments before a federal appeals court.
It’s a bold argument, but goes to the heart of the case in Brackeen v. Bernhardt. Under the Indian Child Welfare Act, Indian tribes have priority over non-Indians in Native American adoptions.
Last year in Texas, a trial judge struck down the Act. Now the tribes are defending ICWA in the U.S. Fifth Circuit Court of Appeals.

Read the full article at the FindLaw.com website.

Read related coverage at:

Fate of Native Children May Hinge on U.S. Adoption Case


A case before a federal appeals court this week could upend an historic adoption law meant to combat centuries of brutal discrimination against American Indians and keep their children with families and tribal communities.
For the first time, a few states have sued to overturn the federal Indian Child Welfare Act, which Congress enacted in 1978 as an antidote to entrenched policies of uprooting Native children and assimilating them into mainstream white culture.
Now, in a country roiled by debates over race and racial identity, there’s a chance the 41-year-old law could be overturned by the U.S. 5th Circuit Court of Appeals, considered the country’s most conservative court. (The law applies to federally recognized tribes.)
Overturning the law, its proponents say, could significantly increase the number of American Indian children adopted into non-Native families.

Read the full research article at the Pew Trusts website.

2018 ICWA by the Numbers


There were 206 appealed ICWA cases this year, down 7 from last year. However, there were 50 reported cases this year, which is nearly 20 more than last year. As always, California leads the states with 125 cases, 9 were reported. Alaska is second with 11, 3 reported. Montana had 10, including 7 reported, which is up considerably from last year. Colorado had 8, 7 reported, as did Michigan with 2 reported. Arkansas had 6, with 5 reported, and Arizona, Ohio, and Texas all had four (1, 3, 1 reported, respectively). Illinois had three (finally) though reported none of them, and Indiana, Iowa, Missouri, New Jersey, Oklahoma, South Dakota and Washington all had two (only Missouri, Oklahoma, and South Dakota reported their cases).  Finally the following states had 1 appellate ICWA case: Connecticut, Idaho, Kansas, Minnesota, Nebraska, Nevada, North Carolina, Wisconsin, North Dakota.

Read the full article at the Turtle Talk blog.

Overwhelming Support for ICWA

Joint Press Release from National Native Organizations on the Overwhelming Support for the Indian Child Welfare Act

Available at https://www.narf.org/icwa-brackeen/.

Screenshot of tribal amicus brief, click to see document

(Portland, Ore., January 18, 2019)—On Wednesday, January 16, 2019, 325 tribal nations, 57 Native organizations, 21 states, 31 child welfare organizations, Indian and constitutional law scholars, and seven members of Congress joined the United States and four intervenor tribes in filing briefs to urge the United States Court of Appeals for the Fifth Circuit to uphold the Indian Child Welfare Act (ICWA), the long-standing federal law protecting the well-being of Native children by upholding family integrity and stability.

“The Indian Child Welfare Act (ICWA) is child welfare best practice. Thirty-one leading child welfare organizations stated that ICWA serves the best interest of Native children and families with their declaration that ICWA is the ‘gold standard’ of child welfare policy,” said Sarah Kastelic, executive director of the National Indian Child Welfare Association. “As experts in research, education, advocacy, and providing services related to child welfare, adoption, and court-system reform, these organizations know that ICWA ensures all children and families receive the protections they deserve and that all children fare better when placed with family.”

“The National Congress of American Indians is moved by the overwhelming support to uphold the Indian Child Welfare Act, which protects the best interests of American Indian and Alaska Native children. Tribal nations know, firsthand, the positive impact, the certainty, and stability that ICWA provides to our children in state-based child welfare systems,” said Jefferson Keel, president of the National Congress of American Indians. “Bottom line, ICWA works and the FifthCircuit Court of Appeals should overturn the erroneous district court decision and support American Indian and Alaska Native children and families because it’s the right thing to do.”

“The State of Texas and other Plaintiffs, supported by the Goldwater Institute, bring this litigation against the Indian Child Welfare Act (ICWA) stating that it seeks to protect the equal rights of American Indian children,” said Shannon Keller O’Loughlin, executive director of the Association on American Indian Affairs, “but ICWA is equal rights and human rights legislation. Statistics show that state systems continue to remove Indian children from their families at greater rates than white children, even though incidents of neglect or abuse are similar. Current studies that have researched systemic bias in the child welfare system have found that Indian families were two times more likely to be investigated and four times more likely to have their children removed and placed in foster care than their white counterparts. ICWA was meant to provide protections against this systemic bias and reduce the overrepresentation of Indian children into these systems.”

“The Native American Rights Fund, along with our co-counsel at Dentons, is honored to represent the 325 tribal nations and 57 Native organizations that are signatories to the Tribal Amicus Brief,” said Erin Dougherty Lynch, senior staff attorney at the Native American Rights Fund. “The district court’s interpretation of the Indian Child Welfare Act (ICWA) has never been adopted by any other court, makes no practical sense, is directly contrary to ICWA’s policy and purpose, and finds no support in centuries of established federal Indian law. Indian Country is united in its support for ICWA, and we are confident the Fifth Circuit Court of Appeals will overturn the district court’s decision.”

See related news coverage:

Tribes Come Together to Challenge the Indian Child Welfare Decision at the Indian Country Today website.

Tribes Offer Overwhelming Support for the Indian Child Welfare Act at the Navajo-Hopi Observer.

Attorney General Ferguson Urges Appeals Court to Preserve Indian Child Welfare Act news release at the Washington State Office of the Attorney General website.

Alaska Official Call on Court to Uphold Indian Child Welfare Act at the KTOO Public Media website.

Lawmakers File Bipartisan, Bicameral Amicus Brief in Support of the Indian Child Welfare Act at the Office of Tom Cole (R-Okla) website.

AG Brnovich Joins Bipartisan Coalition in Defense of Law that Protects Native American Children at the Arizona Attorney General website.

Alaska Fights Ruling on Native Adoption Law at the Bristol Bay Times website.

People in Interest of M.D., November 20,2018 (Supreme Court of South Dakota)

Synopsis provided by Westlaw: Native American father’s parental rights to child were terminated, following dispositional hearing in the Second Judicial Circuit Court, Minnehaha County, Susan M. Sabers, J., and father appealed.

Holdings provided by Westlaw: The Supreme Court, Gilbertson, C.J., held that:
1) evidence did not support father’s claim that Department of Social Services (DSS) did not make active efforts to prevent breakup of family, as prerequisite to termination of parental rights under ICWA, and
2) DSS had good cause for placing child with foster family who were not members of father’s family or Native American tribe, as exception to placement preferences under ICWA.
Affirmed.

Read the full decision at the National Indian Law Library website.

In re E.R., October 10, 2018 (Court of Appeal, Second District, Division 6, California.)

Synopsis provided by Westlaw: After Nevada juvenile court declined to exercise further jurisdiction after initially sustaining Nevada Department of Family Services (DFS) juvenile dependency petition, California county human services agency (HSA) filed juvenile dependency petitions in California, alleging that mother and father were unable to care for and protect their infant children and repeated allegations of Nevada DFS petition relating to substance abuse,criminal conduct, abuse, and neglect. Following termination of parental rights hearing, the Superior Court, Ventura County, Nos. J071566, J071567, Ellen Gay Conroy, J., terminated mother’s and father’s parental rights and found children to be adoptable. Mother and father appealed.

 Holdings provided by Westlaw: The Court of Appeal, Gilbert, P.J. heldthat:
1) California juvenile court had subject matter jurisdiction overdependency proceedings;
2) Nevada court was permitted to communicate with California court before declining jurisdiction;
3) Nevada court’s order declining jurisdiction was a valid, final judgment; but
4) HSA was required to interview children’s paternal great-grandmother regarding children’s possible Indian heritage.
Affirmed in part, reversed in part, and remanded with instructions.

Read the full decision at the National Indian Law Library website.

Matter of L.A.G., October 16, 2018 (Supreme Court of Minnesota)

Synopsis from Westlaw: Department of Public Health and Human Services filed petition for termination of mother’s parental rights as to her two minor children. Following termination hearing, the District Court, Cascade County, Nos. ADN 16-175 and ADN-16-176, Gregory G. Pinski, P.J., terminated mother’s parental rights. Mother appealed.

Holdings from Westlaw: The Supreme Court, Beth Baker, J., held that:
1)  trial court violated Indian Child Welfare Act (ICWA) when it terminated mother’s parental rights before having conclusive determination of children’s status in Indian tribe;
2) trial court’s oral findings and comments within written order did not implicitly establish that court agreed active efforts to prevent the breakup of Indian family were made, as required under ICWA; but
3) mother’s due process rights were not violated when Department raised issue of abandonment during closing argument.
Reversed and remanded with instructions.

Read the full decision at the National Indian law library website.

In re Adoption of Micah H., October 26, 2018 (Supreme Court of Nebraska)

October 26, 2018

Synopsis from Westlaw: Maternal grandparents and guardians of minor child brought petition seeking to terminate parental rights and to adopt the child whose mother was member of Indian tribe. The County Court, Saunders County, Patrick R. McDermott, J., denied petition. Grandparents appealed.The Supreme Court, 295 Neb. 213887 N.W.2d 859, reversed and remanded. On remand the County Court found father had abandoned child, terminated parental rights, and granted adoption petition. Father appealed.

Holdings from Westlaw: The Supreme Court, Heavican, C.J., held that:
1) clear and convincing evidence established that maternal grandparents used active efforts to provide remedial services and rehabilitative programs designed to unite father and Indian child;
2) evidence supported finding that father had abandoned child;
3) evidence supported finding that it was in the best interest of Indian child to be adopted by maternal grandparents; and
4) vacation of adoption decree and remand was warranted based on the trialcourt’s failure to comply with statutory adoption procedures.
Affirmed in part, vacated in part, and remanded with directions.

Read the full decision at the National Indian Law Library website.

Demetria H. v. State, October 5, 2018 (Supreme Court of Alaska)

Synopsis provided by Westlaw: Department of Health and Social Services, Office of Children’s Services, (OCS) petitioned to terminate mother’s parental rights to Indian child. The Superior Court, Third Judicial District,Anchorage, Andrew Guidi, J., terminated mother’s parental rights, and she appealed.

 Holdings provided by Westlaw: The Supreme Court, Carney, J., held that:
1) evidence was sufficient to support trial court’s finding that the OCS made active but unsuccessful efforts to prevent the breakup of Indian family;
2) evidence was sufficient to support trial court’s finding that Indian mother’s continued custody would likely result in Indian child suffering serious emotional or physical harm; and;
3) trial court did not err in qualifying expert witness, or in using his testimony to support its finding that continued custody of Indian child by Indian mother was likely to result in serious emotional or physical harm to the child.
Affirmed

Read the full decision at the National Indian Law Library website.

In re N.G., September 21, 2018 (Court of Appeal, Fourth District, Division 2, California.)

Synopsis provided by Westlaw: After Department of Public Social Services (DPSS) sent Indian Child Welfare Act (ICWA) notices to the Blackfeet Tribe of Montana, the Navajo Nation, the Colorado River Indian Tribes, and the Colorado River Tribal Council, the Superior Court, Riverside County, No. RIJ1100389, Jean P. Leonard, Retired Judge, sitting by assignment, terminated mother’s parental rights. Mother appealed.

Holdings provided by Westlaw: The Court of Appeal, Fields, J., held that:
1) trial court, on remand, was required to order DPSS to send ICWA notices to all federally recognized Cherokee tribes;
2) trial court, on remand, was required to fully investigate child’s paternal lineal ancestry; and
3) substantial evidence did not show that DPSS complied with sending ICWA notices.
Reversed and remanded.

Read the full decision at the National Indian Law Library website.

In re Beers, September 11, 2018 (Court of Appeals of Michigan)

Synopsis provided by Westlaw: A petition to terminate mother and father’s parental rights was filed. The Circuit Court, Family Division, Eaton County,No. 15-019320-NA, terminated mother and father’s parental rights. Parents appealed.

 Holdings provided by Westlaw: The Court of Appeals, Murphy, P.J., held that:
1) the trial court erred in failing to apply the Michigan Indian Family Preservation Act (MIFPA) and the Indian Child Welfare Act (ICWA) standards when assessing whether to terminate father’s parental rights to Indian child;
2) the heightened standards of the ICWA and the MIFPA applied to termination of father’s parental rights to Indian child, even though father never had legal or physical custody rights as to child; and
3) clear and convincing evidence established that active efforts had been made to provide services designed to prevent the breakup of mother’s Indian family.
Affirmed in part; reversed and remanded in part.

Read the full decision at the National Indian Law Library website.

People in Interest of M.D., November 20, 2018 (Supreme Court of South Dakota)

Synopsis provided by Westlaw: Native American father’s parental rights to child were terminated, following dispositional hearing in the Second Judicial Circuit Court, Minnehaha County, Susan M. Sabers, J., and father appealed.

Holdings provided by Westlaw: The Supreme Court, Gilbertson, C.J., held that:
1) evidence did not support father’s claim that Department of Social Services (DSS) did not make active efforts to prevent breakup of family, as prerequisite to termination of parental rights under ICWA, and
2) DSS had good cause for placing child with foster family who were not members of father’s family or Native American tribe, as exception to placement preferences under ICWA.
Affirmed.

Read the full decision at the National Indian Law Library website.

Brackeen v. Zinke, October 4, 2018 (United States District Court, N.D. Texas, Fort Worth Division)

Synopsis provided by Westlaw: Foster and adoptive parents and states of Texas,Louisiana, and Indiana brought action against United States, United States Department of the Interior and its Secretary, Bureau of Indian Affairs (BIA)and its Director, BIA Principal Assistant Secretary for Indian Affairs,Department of Health and Human Services (HHS) and its Secretary seeking declaration that Indian Child Welfare Act (ICWA) was unconstitutional. Cherokee Nation, Oneida Nation, Quinalt Indian Nation, and Morengo Band of Mission Indians intervened as defendants. Plaintiffs moved for summary judgment.

Holdings provided by Westlaw: The District Court, Reed O’Connor, J., held that:
1) ICWA’s mandatory placement preferences violated equal protection;
2) provision of ICWA granting Indian tribes authority to reorder congressionally enacted adoption placement preferences violated non-delegation doctrine;
3) ICWA provision requiring states to apply federal standards to state-created claims commandeered the states in violation of the Tenth Amendment;
4) Bureau of Indian Affairs (BIA) exceeded its statutory authority in promulgating regulations, in violation of the Administrative Procedure Act (APA);
5) BIA regulations were not entitled to Chevron deference;and
6) prospective and adoptive parents whose adoptions were open to collateral attack under ICWA had no fundamental right to care, custody, and control of children in their care.
Motions granted in part and denied in part.

Read the full decision at the National Indian Law Library website.

Indian Child Welfare Act Remains in Force after Appeals Court Order (Brackeen v. Zinke)

A federal appeals court granted a stay requested by the four tribes on Monday to preserve the 1978 Indian Child Welfare Act.

“The law is going to stay the same for now,” said Dan Lewerenz, one of the attorneys working on the Brackeen v. Zinke case.

That means Native American families will stay together under the law.

Read the full article at the Indian Country Today website.

Read related:

“Court puts hold on controversial Indian Child Welfare Act ruling” at the Indianz.com website. (12/4/2018)

U.S. to defend Indian Child Welfare Act (Brackeen v. Zinke)

The United States will join four tribes defending the Indian Child Welfare Act against a district court ruling in Texas.

The Department of Justice, with the Department of Interior and Health and Human Services, and their officials, filed a notice of appeal on Nov. 30 to the U.S. Court of Appeals for the Fifth Circuit, according to a joint statement from the National Indian Child Welfare Association, the National Congress of American Indians, the Native American Rights Fund, and the Association on American Indian Affairs.

Read the full article at the Indian Country Today website.

Related coverage:

“A Long Legal Battle is Expected as Tribes Appeal Texas Court Ruling on ICWA” at the Indian Country Today website. (11/27/1018)

“Tribes Appeal, Seek Stay on Indian Child Welfare Act Ruling; Feds Yet to Act” at the Chronicle of Social Change website. (11/21/2018)

“Why conservatives are attacking a law meant to protect Native American families” at the Washington Post website. (11/21/2018)

Responses to ICWA Court Ruling

Treppa: Why the ICWA is critical to the health of native children and tribal communities

SHERRY TREPPA POSTED ON WEDNESDAY, 24 OCTOBER 2018
A Texas judge’s recent decision to strike down the Indian Child Welfare Act, or ICWA, sets a dangerous precedent that unravels federal policy carefully designed to correct centuries of tragic injustices committed against Indian people.

It not only threatens the wellbeing of Native children and their families, but also tribal sovereignty. Further, the ruling could undo many of the collaborative relationships our tribes have forged with local governments and states that already acknowledge the benefits of preserving Native families.

Read the full op-ed at the Lake County News website.

Preserving the Culture and Traditions of Indian Children and Families

October 23, 2018

In passing the Indian Child Welfare Act (ICWA) in 1978, the clear intent of Congress was to protect the best interest of Indian children and to promote the stability and security of Indian tribes and families. Oversight and enforcement authority regarding the provisions of ICWA was left to judges presiding over child custody cases.

Read the full statement on the National Council of Juvenile and Family Court Judges website.

Joint Statement on Indian Child Welfare Case Brackeen v. Zinke Ruling

In a decision published by the United States District Court for the Northern District of Texas, the Indian Child Welfare Act (ICWA) was declared unconstitutional, jeopardizing the landmark legislation protecting tribal children.

This egregious decision ignores the direct federal government-to-government relationship and decades upon decades of precedent that have upheld tribal sovereignty and the rights of Indian children and families. Through 40 years of implementation, ICWA’s goal is to promote family stability and integrity. It continues to be the gold standard in child welfare policy.

Read the full statement on the Native American Rights Fund website.

Court Strikes Down Landmark Indian Child Welfare Act Ruling

A federal appeals court has delivered a major blow to tribes and parents who have been seeking stronger enforcement of the Indian Child Welfare Act in South Dakota.The Oglala Sioux Tribe, the Rosebud Sioux Tribe and three Indian parents went to court more than five years ago, alarmed by the large numbers of Indian children being taken from their families. They secured a historic ruling which confirmed that the state was violating ICWA by failing to provide adequate notice in child welfare proceedings.”Indian children, parents and tribes deserve better,” Judge Jeffrey L. Viken stated in his landmark March 2015 ruling.But that victory is no more. In a unanimous decision, the 8th Circuit Court of Appeals last week set aside the ruling, saying Viken went too far when he ordered the state to improve compliance with ICWA, the 1978 law that remains under attack throughout the nation.

Read the full article at the Indianz.com website.

Read related article from The Chronicle of Social Change.

Matter of D.E. August 7, 2018 (Montana)

Synopsis provided by Westlaw: In child protection proceedings, the District Court, Second Judicial District, Butte/Silver Bow County, Nos. DN-15-75-BN and DN-15-76-BN, Brad Newman, J., terminated mother’s parental rights with respect to two children. Mother appealed, and appeals were consolidated.

Holdings provided by Westlaw: The Supreme Court, Gustafson, J., held that:
1) Department of Public Health and Human Services failed to meet burden under the Indian Child Welfare Act (ICWA) to actively investigate further and make formal inquiry with tribe for conclusive determination of children’s tribal membership eligibility prior to terminating mother’s rights to children, and;
2) evidence was sufficient to support finding that mother’s condition was unlikely to change within reasonable time, as required to terminate her parental rights after children were adjudicated youth in need of care.

Read the full decision at the National Indian Law Library website.

In the Matter of: P.T.D. August 22, 2018 (Montana)

Synopsis provided by Westlaw: Department of Public Health and Human Services, Child and Family Services Division, filed a petition to terminate putative father’s parental rights to child, who was a member of or eligible for membership in the Fort Peck Indian Tribe. The District Court, 12th Judicial District, Hill County, No. DN-15-010, Daniel A. Boucher, J., granted the petition. Father appealed.

Holdings provided by Westlaw: The Supreme Court, Mike McGrath, C.J., held that:
1) family relationship did not exist between Indian child and putative father, and therefore, requirements of Indian Child Welfare Act (ICWA) did not apply; and
2) argument that oral pronouncement, minute entry, and order differed in the way they define the active efforts requirement was immaterial.
Affirmed

Read the full decision at the National Indian Law Library website.

Appeals court won’t rule on challenge to Indian Child Welfare Act

A federal appeals court has turned away a closely-watched conservative challenge to the Indian Child Welfare Act.The Goldwater Institute sued the federal government and the state of Arizona, arguing that ICWA is racist because it only applies to “Indian” children. But the 9th Circuit Court of Appeals declined to rule on the merits of the claim because a panel of judges noted that all of the four children involved in the case have been adopted.

Read the full article at the Indianz.com website.

Read related coverage at the Navajo-Hopi Observer website.

In re C.A., May 23, 2018 (California)

Synopsis provided by Westlaw: Dependency proceeding was initiated regarding child born with amphetamine and methamphetamine in her system at birth. Following determination that Indian Child Welfare Act (ICWA) did not apply to child’s presumed father or biological father, the Superior Court, San Diego County, No. J519280, Kimberlee Lagotta, J., terminated mother’s parental rights to child. Mother and presumed father appealed.

Holdings provided by Westlaw: The Court of Appeal, Irion, Acting P.J., held that:
1) record demonstrated ICWA did not apply based on biological father’s initial claim of Native American heritage;
2) as an issue of apparent first impression, presumed father’s claim of Native American heritage was insufficient to trigger ICWA notice requirements; and
3) record supported finding that mother was not entitled to parent-child relationship exception to adoption to preclude termination of parental rights.
Affirmed.

Read the full decision at the National Indian Law Library website.

Glendive Woman Sues Over Child Custody Dispute That Put Tribal, Minnesota Courts at Odds

A Glendive woman is suing the Bureau of Indian Affairs for $1 million over a 2015 child custody dispute that pitted state and tribal courts against each other.

Patsy Fercho, 64, fled to the Northern Cheyenne Reservation in 2015 with her two grandchildren in an attempt to avoid a Minnesota court’s order granting custody to the kids’ father.

Read the full article at the Montana Standard website.

In Matter of L.D. March 27, 2018 (Montana)

Synopsis provided by Westlaw: In child protection proceeding, the District Court, Eighth Judicial District, Cascade County, John A. Kutzman, J., terminated mother’s parental rights. Mother appealed.

Holdings provided by Westlaw: The Supreme Court, Sandefur, J., held that:
1) Department of Health and Human Services could not passively rely on inaction of Indian tribe to satisfy burden under Indian Child Welfare Act (ICWA) to actively investigate and ultimately make formal inquiry with tribe for conclusive determination of child’s tribal membership eligibility, and
2) trial court could not rely on mother’s stipulation or acquiescence that the Indian Child Welfare Act (ICWA) did not apply to child to satisfy its threshold duty to obtain conclusive determination from Indian tribe of child’s tribal eligibility. Reversed and remanded.

Read the full decision at the National Indian Law Library website.

In the Matter of J.W.E., I.W.E., and J.W.E. April 11, 2018 (Oklahoma)

Synopsis provided by Westlaw: The Department of Human Services filed petition to terminate mother’s parental rights. The District Court, Blaine County, Mark A. Moore, J., terminated mother’s rights and denied her motion for new trial that alleged that Indian Child Welfare Act (ICWA) applied to proceedings. Mother appealed.

Holding provided by Westlaw: The Court of Civil Appeals, Jane P. Wiseman, P.J., held that involvement of Indian children required application of ICWA to proceedings to terminate mother’s parental rights. Reversed and remanded.

Read the full decision at the National Indian Law Library website.

Miccosukee Tribe Ties Child Welfare Case to Violence Against Women

The Miccosukee Tribe is defending its handling of a child welfare case that has drawn national attention.The tribe said a newborn was taken from her mother, a Miccosukee citizen, in order to protect the baby girl and her older siblings from domestic violence. The mother had previously been victimized by her non-Indian former partner, whose presence at the hospital during the birth earlier this month led the maternal grandmother to seek custody of the baby.

Read the full article at the Indianz.com website.

Read related coverage from the Tuscaloosa News article, “Legal experts say tribe overstepped authority in seizing baby“

In re K.R v. E.K. February 22, 2018 (California)

Synopsis provided by Westlaw: Dependency proceeding was initiated by county department of public social services regarding three children. The Superior Court, Riverside County, No. SWJ1600319, Judith C. Clark, J., determined that Indian Child Welfare Act (ICWA) did not apply and subsequently terminated mother’s parental rights to children.

Holdings provided by Westlaw: The Court of Appeal, McKinster Acting P.J., held that department failed to demonstrate that it complied with investigatory requirements for determining children’s possible Indian heritage.
Conditionally reversed with directions.

Read the full decision at the National Indian Law Library website.

In Interest of L.H. February 23, 2018 (Colorado)

Synopsis provided by Westlaw: County department of human services sought to terminate mother’s parent-child legal relationship with her child who had possible Indian heritage. The District Court, Jefferson County, No. 15JV650, Ann Gail Meinster, J., determined that Indian Child Welfare Act (ICWA) did not apply and terminated mother’s parental rights. Mother appealed.

Holding provided by Westlaw: The Court of Appeals held that trial court was required to notify Indian tribes historically affiliated with tribe mother asserted her biological brother belonged to.
Remanded with instructions.

Read the full decision at the National Indian Law Library website.

Diego K. v. State of Alaska Department of Health and Social Services, February 23, 2018 (Alaska)

Synopsis provided by Westlaw: Office of Children’s Services (OCS) petitioned for removal of Indian child from parents’ custody. The Superior Court, Fourth Judicial District, Bethel, No. 4SM-14-00002 CN, Dwayne W. McConnell, J., ordered child removed from her parents’ home. Parents appealed. The Supreme Court remanded for additional findings. Following remand, the Superior Court, McConnell, J., issued ordering clarifying its removal findings. Parents appealed.

Holding provided by Westlaw: The Supreme Court, Carney, J., held that information from status hearings, including unsworn statements made by OCS workers, could not be used by trial court to support its order authorizing removal of Indian child from parents’ custody.
Vacated and remanded.

Read the full decision at the National Indian Law Library website.

ICWA case denied at U.S. Supreme Court: R.K.B. et al., v. E.T.

On March 26, 2018, the U.S. Supreme Court declined to hear this case:

R.K.B. et al., v. E.T.
Briefs and Pleadings
Docket No. 17-942

Question Presented: The Indian Child Welfare Act of 1978, 25 U.S.C. 1901–1963, applies to state custody proceedings involving an Indian child. State courts of last resort are divided on the following critical question, a question that likely affects thousands of adoption proceedings each year, and on which this court granted certiorari but did not reach in Adoptive Couple v. Baby Girl, 133 S. Ct. 2552, 2560 (2013): Does the Indian Child Welfare Act define “parent” in 25 U.S.C. 1903(9) to include an unwed biological father who has not complied with state law rules to attain legal status as a parent?

History: Petition was filed on 12/29/17. Petition was denied on 3/26/17.

Ruling below: In the Matter of the Adoption of B.B. 2017 WL 3821741 Supreme Court of Utah. The Supreme Court, Himonas, J., held that: 1) birth father was a parent under the Indian Child Welfare Act (ICWA) and had right to notice and to intervene in the adoption proceedings; 2) birth father had custody of child under the ICWA; 3) adoption proceedings were involuntary, not voluntary, as to birth father; and in an opinion by Lee, Associate C.J., 4) trial court’s order accepting birth mother’s consent to child’s adoption under the ICWA and terminating her parental rights was not properly presented to the Supreme Court for review; and 5) any defect in the timing of birth mother’s consent to adoption of child did not deprive trial court of subject-matter jurisdiction. Reversed and remanded.

5-year-old Native American Boy to Remain in Ohio for Now

A 5-year-old Native American boy at the center of controversy for more than a year will remain with his Coshocton County foster family, for now.

Last week, the Ohio Court of Appeals reversed an earlier juvenile court ruling that would have sent the preschooler 2,000 miles from his home to a reservation in Arizona. The ruling stated the juvenile court should not have granted custody without first conducting a full evidentiary hearing taking into account the best interest of the child.

Read the full article at the Coshocton Tribune website.

Read related news coverage at “Conservative group claims victory in Indian Child Welfare Act case” from Indianz.com

Colorado Court of Appeals: Written Advisement Form Does Not Satisfy ICWA Notice Requirements

The Department contended that mother’s signing of a written advisement of her rights, which included a question about the ICWA, served as the court’s initial inquiry. The inquiry should be made on the record. Regardless, the Court of Appeals found that the Department failed to send notice to the appropriate tribes when mother identified a reason to believe the children were Indian children.

The case was remanded with instructions for the limited purpose of directing the Department to send appropriate notice to the Kiowa Indian Tribe of Oklahoma and the Pueblo of Taos.

Read the full case summary at the Colorado Bar Association website.

South Dakota’s Federal ICWA Ruling Heads To 8th Circuit Court of Appeals

The Indian Child Welfare Act lawsuit filed in Rapid City’s federal court almost five years ago is going to the Eighth Circuit Court of Appeals. A three-judge panel is hearing oral arguments in St. Paul, Minn., on Tuesday, Feb. 12.

In March 2013, the Rosebud and Oglala Sioux Tribes, as well as tribal parents, brought suit against state officials in Pennington County. They claim the process for handling abuse and neglect cases routinely violates ICWA and due process rights.

Listen to the full story on the South Dakota Public Broadcasting Radio website.

 

In the Interest of K.G. and A.R., November 29, 2017 (Colorado)

Synopsis provided by Westlaw: Department of human services moved for an allocation of parental responsibilities of two children from mother to children’s aunt and uncle. The District Court, Mesa County, Valerie J. Robinson, J., entered an order allocating parental responsibilities, and did not address any applicability of the Indian Child Welfare Act (ICWA). Mother appealed.

Holdings provided by Westlaw: The Court of Appeals held that:
1) proceeding for the allocation of parental rights to children from mother to children’s aunt and uncle was a child custody proceeding within the meaning of ICWA, and
2) proceeding did not comply with ICWA notice requirements.
Remanded.

Read the full decision at the National Indian Law Library website.

In the Interest of K.S.D. , December 7, 2017 (North Dakota)

Synopsis provided by Westlaw: County Social Services filed petition to terminate mother’s and father’s parental rights to Native American children. The Juvenile Court, Grand Forks County, Northeast Central Judicial District, Jon J. Jensen, J., terminated father’s parental rights, and father appealed.

Holdings provided by Westlaw: The Supreme Court, Stacy J., Louser, District Court Judge, sitting for Jensen, J., disqualified, held that:
1) evidence supported findings that children were deprived, that deprivation would continue, and that father’s continued custody would likely result in serious emotional or physical damage to children;
2) active efforts were made to provide remedial services and rehabilitative programs designed to prevent breakup of family, as prerequisite to termination of parental rights, under Indian Child Welfare Act (ICWA);
3) under ICWA, qualified expert testimony was required on whether father’s continued custody of children was likely to result in serious emotional or physical damage to children.
Remanded

Read the full decision at the National Indian Law Library website.

R.K.B. et al., v. E.T. (Case Petitioned to the U.S. Supreme Court on 12/29/17.)

Briefs and Pleadings
Docket No. 17-942

Question Presented: The Indian Child Welfare Act of 1978, 25 U.S.C. 1901–1963, applies to state custody proceedings involving an Indian child. State courts of last resort are divided on the following critical question, a question that likely affects thousands of adoption proceedings each year, and on which this court granted certiorari but did not reach in Adoptive Couple v. Baby Girl, 133 S. Ct. 2552, 2560 (2013): Does the Indian Child Welfare Act define “parent” in 25 U.S.C. 1903(9) to include an unwed biological father who has not complied with state law rules to attain legal status as a parent?

History: Petition was filed on 12/29/17.

Ruling below: In the Matter of the Adoption of B.B. 2017 WL 3821741 Supreme Court of Utah. The Supreme Court, Himonas, J., held that: 1) birth father was a parent under the Indian Child Welfare Act (ICWA) and had right to notice and to intervene in the adoption proceedings; 2) birth father had custody of child under the ICWA; 3) adoption proceedings were involuntary, not voluntary, as to birth father; and in an opinion by Lee, Associate C.J., 4) trial court’s order accepting birth mother’s consent to child’s adoption under the ICWA and terminating her parental rights was not properly presented to the Supreme Court for review; and 5) any defect in the timing of birth mother’s consent to adoption of child did not deprive trial court of subject-matter jurisdiction. Reversed and remanded.

Supreme Court Won’t Take up Race-Based Challenge to Indian Child Welfare Act

Without comment, the U.S. Supreme Court denied a petition in S.S. v. Colorado River Indian Tribes. The action, which came in an order list on Monday morning, lets stand a decision from Arizona, where opponents of ICWA tried to undermine the landmark law by claiming it is based on “race.” The Arizona Court of Appeals rejected that contention in a January 12 decision. And the Colorado River Indian Tribes, whose attorneys participated in the case to protect two children who have been involved in a custody dispute, noted that the “race” issue has long been settled.

Read the full article at the Indianz.com website.

Read related coverage from the Navajo Hopi Observer website, the Havasu News-Herald website and the Cronkite News website at AZ PBS.

New Lawsuits say Mormon Church Failed to Protect American Indian Children

The number of lawsuits alleging Mormon church leaders failed to protect children from sexual abuse has grown to include two more Navajos and a member of the Crow Tribe.

Thousands of American Indian children, most of whom were Navajo, participated in a now-defunct church-run foster program from the late 1940s until around 2000. The program was meant to give children educational opportunities that didn’t exist on the reservations.

The lawsuits contend certain foster families harmed children.

Read the full article at The Salt Lake Tribune website.

U.S. Supreme Court Asked to Weigh Havasu (AZ) Lawyer’s Case

Under the Indian Child Welfare Act, parental rights can only be severed if it is found beyond a reasonable doubt that the children are at severe risk of harm. Testimony to this fact must come from expert witnesses, and under tribal law, it must be proven that an effort was made to keep children with their biological parents.

According to Rideout, application of the Indian Child Welfare Act in custody cases such as this would be detrimental to the children involved. Rideout this week filed an appeal of CRIT’s [Colorado River Indian Tribes] decision with the U.S. Supreme Court.

Read the full article at the Havasu News website.

Colorado Court of Appeals: Dependency and Neglect Court Should Have Followed ICWA’s Notice Requirements

On appeal, A.T. contended that the order should be reversed because the Department did not comply with the Indian Child Welfare Act (ICWA) notice requirements. First, when there is “reason to know” the child is an Indian child, the juvenile court must ensure that the Department sends notice to any identified Indian Tribe. Second, the court must “[t]reat the child as an Indian child, unless and until it is determined on the record that the child does not meet the definition of an ‘Indian child.’” Here, the Department did not meet its obligation to provide notice of the proceedings to any of the Apache Tribes. The juvenile court did not address whether the Department used due diligence to identify and work with an Apache Tribe to verify whether L.L. was a member or was eligible for membership and did not treat L.L. as an Indian child pending the Tribes’ verification.

Read the full case summary at the Colorado Bar Association website.

Court rejects challenge to law safeguarding Native children and families

Photo of girl playingMarch 17 – Yesterday, the federal District Court for the District of Arizona dismissed A.D. v. Washburn, a case brought by the Goldwater Institute challenging the Indian Child Welfare Act’s (ICWA) application to Native children in the Arizona foster care system. This case was an attempt by a special interest group to dismantle the law that has protected thousands of Native children and families nationwide.

Read more at the Native American Rights Fund’s blog.

Read related news coverage at the Indianz.com website and Indian Country Media Network website.

 

In South Dakota, Officials Defied a Federal Judge and Took Indian Kids Away From Their Parents in Rigged Proceedings

In March 2015, Chief Federal District Court Judge Jeffrey L. Viken confirmed what our complaint had alleged: State employees were removing children from their homes and then holding hearings in state court within 48 hours, in which parents were not assigned counsel to represent them, were not given a copy of the petition accusing them of wrongdoing, and no state employee was called to testify. Moreover, the parents were not permitted to testify, call witnesses, or cross-examine any state employee. The hearings typically lasted fewer than five minutes — some were done in 60 seconds — and the state won 100 percent of the time.

That’s right, 100 percent.

Read the full article at the American Civil Liberties Union (ACLU) website.

In re Charlotte V., November 1, 2016, (California)

Read the full decision at the National Indian Law Library website.

Synopsis from Westlaw: County child welfare agency filed dependency petition. The Superior Court, Los Angeles County, No. CK81121, Emma Castro, Commissioner, terminated parental rights. Mother appealed.

Holding from Westlaw: The Court of Appeal, Bigelow, P.J., held that agency provided adequate ICWA notice to conclude child was not a member of tribe, including copy of mother’s membership card.

 

Guardianship of C.H.S., November 22, 2016, (Oklahoma)

Read the full copy of the decision at the National Indian Law Library website.

Synopsis from Westlaw: Cherokee Nation filed petition to transfer guardianship action regarding Indian children to Cherokee Nation District Court, to which children’s guardians objected. The District Court, Okfuskee County, Lawrence W. Parish, J., denied transfer. Cherokee Nation appealed.

Holding from Westlaw: The Court of Civil Appeals, Jane P. Wiseman, P.J., held that guardians failed to comply with notice and reunification requirements, and thus advanced stage of proceeding did not constitute good cause preventing transfer to tribal court.
Reversed and remanded with directions.

In re O.C., November 22, 2016, (California)

Read the full decision at the National Indian Law Library website.

Synopsis from Westlaw: County children and family services agency filed petition against mother and father to terminate their parental rights to minor children, who potentially had Indian heritage. Following hearing, the Superior Court, Mendocino County, Nos. SCUK-JVSQ-14-1702501 and SCUK-JVSQ-14-1702601, David Riemenschneider, J., found both children adoptable, that exception to adoption for sibling bond did not apply, and that Indian Child Welfare Act (ICWA) did not apply, and terminated parental rights. Mother and father appealed.

Holding from Westlaw: The Court of Appeal, Dondero, J., held that trial court failed to comply with notice requirements of ICWA and state law.
Reversed and remanded with directions.

Girls Caught in Custody Battle After Parents are Killed in Head-On Collision

The children have recovered from their injuries, but they now are innocent victims of a custody battle that pits their relatives in Visalia, Calif., against relatives in the Shingle Springs Band of Miwok Indians in Placerville, Calif.

The case in U.S. District Court in Sacramento is being closely watched because a federal judge has ruled that Visalia residents Efrim and Talisha Renteria, who are Sharnae Cuellar’s uncle and aunt, should have temporary custody of the three children.

The Shingle Springs tribe is crying foul.

Read the full article at the Myrtle Beach Online website.

Case petitioned to U.S. Supreme Court: R.P. v. LA County Department of Children and Family Services

R.P. v. LA County Department of Children and Family Services
U.S. Supreme Court Briefs and Pleadings
Docket No. 16-500

Question Presented: The questions presented are: (1) Whether ICWA applies where the child has not been removed from an Indian family or community. (2) Whether ICWA’s adoptive placement preferences, 25 U.S.C.1915(a), require removal from a foster placement made under 1915(b), for the purpose of triggering the adoptive placement preferences contained in 1915(a). (3) Whether the state courts erred in holding that “good cause” to depart from ICWA’s placement preferences must be proved by “clear and convincing evidence” – contrary to the text and structure of the state and the decision of at least one other state court of last resort – or otherwise erred in their interpretation of “good cause.”

History: Petition was filed on 10/07/2016.

Rulings Below: In re Alexandria P., Court of Appeal, Second Dist., Div. 5, California 1 Cal.App.5th 331. The Court of Appeal, Kriegler, J., held that:
1) trial court did not exceed scope of remand or disregard law of the case by considering impact on child’s cultural identity if she were to remain foster parents;
2) good cause to depart from ICWA’s placement preferences did not exist as a matter of law;
3) substantial evidence supported finding that there was no good cause to depart from ICWA’s placement preferences;
4) any error in excluding full report prepared by bonding and attachment expert was harmless;
5) trial court did not abuse its discretion in considering social worker’s report without allowing foster parents to cross-examine him; and
6) trial court did not abuse its discretion by denying foster parents’ request to present additional evidence or testimony.
Affirmed.

United Auburn Indian Community of the Auburn Rancheria v. Edmund G. Brown, Jr., October 13, 2016, (California)

Read a full copy of the decision at the National Indian Law Library website.

Synopsis provided by Westlaw: State moved to terminate natural mother’s parental rights, default order was entered against mother, and Indian tribe intervened after mother became enrolled citizen of tribe. The District Court, Rogers County, Stephen R. Pazzo, J., granted tribe’s motion to transfer the case to tribal court under the Indian Child Welfare Act (ICWA). State and foster mother appealed.

Holdings provided by Westlaw: The Supreme Court, Taylor, J., held that:
1) ICWA applied to proceeding, and
2) good cause to prevent transfer was not established by clear and convincing evidence.
Affirmed.

Related News Stories: One tribe can’t stop another tribe’s casino (Courthouse News) 10/17/16, Court upholds governor’s power to allow Indian casinos (KPCC) 10/14/15

In re Alexandria P., July 8, 2016 (California)

Synopsis provided by Westlaw: County department of children and family services (DCFS) filed dependency petition on behalf of child, who was considered an Indian child under Indian Child Welfare Act (ICWA) and, after child was placed with foster family and efforts to reunify child with father failed, DCFS, father, and Indian tribe recommended that child be placed with extended family .

Holdings provided by Westlaw: The Court of Appeal, Kriegler, J., held that:
1) trial court did not exceed scope of remand or disregard law of the case by considering impact on child’s cultural identity if she were to remain foster parents;
2) good cause to depart from ICWA’s placement preferences did not exist as a matter of law;
3) substantial evidence supported finding that there was no good cause to depart from ICWA’s placement preferences;
4) any error in excluding full report prepared by bonding and attachment expert was harmless;
5) trial court did not abuse its discretion in considering social worker’s report without allowing foster parents to cross-examine him; and
6) trial court did not abuse its discretion by denying foster parents’ request to present additional evidence or testimony.
Affirmed.

Read the full decision on the National Indian Law Library website.

In re Abbigail A. , July 14, 2016 (California)

Synopsis provided by Westlaw: County department of health and human services filed dependency petitions as to two children. The Superior Court, Sacramento County, Nos. JD232871 and JD232872, Paul L. Seave, J., directed counsel to make reasonable efforts to enroll the children and their father in a tribe which had notified the court that they were eligible for membership, concluded it was required to treat the eligible minors as Indian children under Indian Child Welfare Act (ICWA), but made jurisdictional findings and placed the children in the custody of their maternal grandmother. Department of health and human services appealed. The Court of Appeal reversed with directions. Father petitioned for review. The Supreme Court granted review, superseding the opinion of the Court of Appeal.

Holdings provided by Westlaw: The Supreme Court, Werdegar, J., held that:
1) court rule requiring juvenile court to treat a child eligible for tribal membership as an “Indian child” is invalid, but
2) a court rule validly requires the juvenile court to pursue tribal membership for a child who is already an “Indian child.”
Affirmed in part, reversed in part, and remanded.

Read the full decision at the National Indian Law Library website.

In re Andrew S., August 15, 2016 (California)

Synopsis provided by Westlaw: Child dependency proceeding was commenced. The Superior Court, Los Angeles County, No. DK11636, Philip L. Soto, J., found jurisdiction over the children and removed them from parental custody, and father appealed.

Holdings provided by Westlaw: The Court of Appeal, Perluss, P.J., held that:
1) father’s failure to provide children with support, and his incarceration on burglary charges, did not allow trial court to assume jurisdiction over children;
2) statute governing removal of children from the physical custody of a parent or guardian “with whom the child resides at the time the petition was initiated” did not apply to father; and
3) on remand, juvenile court was required to reconsider its decision that the Indian Child Welfare Act (ICWA) did not apply.
Reversed and remanded.

Read the full decision at the National Indian Law Library website.

In re Michael V., September 14, 2016 (California)

Synopsis provided by Westlaw: County child welfare agency filed dependency petition as to two daughters. The Superior Court, Los Angeles County, No. DK02646, Zeke D. Zeidler, J., terminated parental rights and transferred care, custody, and control of the daughters to the county child welfare agency for adoptive planning and placement. Mother appealed.

Holding provided by Westlaw:  The Court of Appeal, Perluss, P.J., held that county child welfare agency failed to adequately investigate mother’s Indian Child Welfare Act (ICWA) claim of Indian ancestry.
Conditionally affirmed and remanded with directions.

Read the full decision at the National Indian Law Library website.

California’s Highest Court Won’t Disrupt Placement of Choctaw Nation Girl

The courts in California have determined that the 1978 law applies to a Choctaw Nation girl who has been placed with relatives in Utah. But a non-Indian couple — aided by an attorney who has tried to weaken ICWA — has insisted on fighting.

The battle will continue after the California Supreme Court on Thursday refused to review the girl’s placement. The non-Indian couple quickly vowed an appeal.

Read more at the Indianz.com website.

Gila River Indian Community Weighs Options After Losing Indian Child Welfare Act Case

Although the proceeding only involved one child, it’s being closely watched because the non-Indian foster couple is being represented by the Goldwater Institute. The conservative-leaning organization, which is based in Arizona, has launched a public relations and legal campaign aimed at undermining and even invalidating the landmark Indian Child Welfare Act.

Read the full article at the Indianz.com website.

California Appeals Court Rules in Favor of ICWA Placement Preference in R.P. et al. v. J.E. et al.

On Friday, July 8, 2016, the Court of Appeal of the State of California – Second Appellate District upheld a lower court’s decision in R.P. et al. v. J.E. et al. that used the Indian Child Welfare Act as its basis to remove a four-year-old female child from her non-Native foster family.

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 ex tended 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.

Because substantial evidence supports the court’s finding that the P.s did not prove by clear and convincing evidence that there was good cause to depart from the ICWA’s placement preferences, we affirm.

Find a case summary and the full opinion at the court’s website.

State v. Central Council of Tlingit and Haida Indian Tribes of Alaska, March 25, 2016 (Alaska)

Synopsis provided by Westlaw: Central Council of Tlingit and Haida Indian Tribes filed action against state, seeking declaratory judgment that its tribal court system had subject matter jurisdiction over child support matters and seeking an injunction requiring the state’s child support enforcement agency to recognize tribal courts’ child support orders. The Superior Court, First Judicial District, Juneau, Philip M. Pallenberg, J., entered judgment in favor of the tribes. State appealed.

Holdings provided by Westlaw: The Supreme Court, Fabe, C.J., held that:
1)tribal courts have inherent, non-territorial subject matter jurisdiction to adjudicate parents’ child support obligations, and
2) the power to set nonmember parents’ child support obligations is within the retained powers of membership-based inherent tribal sovereignty.
Affirmed.

Read the full decision at the National Indian Law Library website.

In re Doe, March 24, 2016 (Idaho)

Synopsis provided by Westlaw: Mother’s parental rights were terminated by the Second Judicial District Court, Nez Perce County, Michelle Evans, Magistrate Judge, and she appealed.

Holdings provided by Westlaw: The Supreme Court, W. Jones, J., held that:
1) trial court’s determination that mother neglected child was supported by substantial and competent evidence;
2) Department of Health and Welfare (DHW) made reasonable efforts at reunifying mother and child;
3) trial court was compelled to take judicial notice of transcript of adjudicatory hearing upon prosecutor’s request; and
4) trial court’s overruling of mother’s objections to Indian tribe’s responses to DHW’s Indian Child Welfare Act (ICWA) notices did not warrant reversal.
Affirmed.

Read the full decision at the National Indian Law Library website.

In re Adoption of B.T.S. , March 7, 2016 (Oklahoma)

Synopsis provided by Westlaw: Prospective adoptive parents filed a petition for adoption which also sought to terminate mother and father’s parental rights and an order determining that child was eligible for adoption without mother’s consent. The District Court, Cherokee County, Sandy Crosslin, J., determined child was eligible for adoption without mother’s consent. Mother appealed.

Holding provided by Westlaw: The Court of Civil Appeals, Deborah B. Barnes, J., held that:
1. mother was not prejudiced by prospective adoptive parents’ failure to comply with the notice provisions of the Oklahoma Indian Child Welfare Act (OICWA);
2. the Indian Child Welfare Act’s (ICWA) heightened burden of proof beyond a reasonable doubt did not apply to proceeding to determine whether Indian child could be adopted without mother’s consent; and
3. The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) did not apply to interstate adoption jurisdiction dispute.

Affirmed as corrected.

Read the full opinion at the National Indian Law Library website.

Judge in South Dakota Sanctioned in Indian Child Welfare Act Case

A judge in South Dakota has agreed to pay $50,000 in sanctions in an Indian Child Welfare Act case. Judge Jeff Davis did not admit to “concealing” information sought by the Oglala Sioux Tribe and the Rosebud Sioux Tribe, two of the plaintiffs in the case. But he agreed to pay attorney’s fees for failing to turn over key documents that explain how the state courts handled proceedings involving Indian children.

Read the full article at the Indianz.com website.

Read a related article at the Native Times website.

In re Interest of Tavian B., February 19, 2016 (Nebraska)

Background from Westlaw: State filed petition to terminate the parental rights of mother and father to their purportedly Indian children. Father sought transfer of proceedings to Tribal Court. Prior to juvenile court’s ruling on motion to transfer, the state withdrew its motion to terminate parental rights. The Separate Juvenile Court, Lancaster County, Reggie L. Ryder, J., found that good cause existed to deny request to transfer jurisdiction because the proceedings were in an advanced stage. Father appealed.

Holdings from Westlaw: The Supreme Court, Wright, J. , held that:
1 because state did not meet its burden of establishing good cause to deny transfer of proceeding to tribal court, juvenile court abused its discretion in denying father’s motion to transfer;
2 determination that the foster placement or termination of parental rights proceeding involving an Indian child is at an advanced stage is no longer a valid basis for finding good cause to deny a motion to transfer jurisdiction to a tribal court; and
3 Supreme Court would decline state’s invitation to change its prior holding that the best interests of an Indian child may not be considered when determining whether good cause exists to deny transfer of a foster placement or termination of parental rights proceeding to a tribal court.
Reversed and remanded.
Read the full decision at the National Indian Law Library website.

State in Interest of M.D., January 7, 2016 (Utah)

Synopsis from Westlaw: A petition to terminate father’s parental rights to his three Indian children was filed. The Third District Juvenile Court, Salt Lake Department, No. 1094548, Charles D. Behrens, J., terminated parental rights. Father appealed.

Holdings from Westlaw: The Court of Appeals held that evidence supported finding that the State made active efforts to prevent the breakup of father’s Indian family and to reunify father with his children.
Affirmed.

Read the full decision at the National Indian Law Library website.

Alaska Supreme Court Orders State to Enforce Tribal Child Support Orders as Essential

In a major decision on child support, the Alaska Supreme Court stopped a Parnell administration effort against tribal rights that lingered during Gov. Bill Walker’s reign.

The court ruled unanimously Friday in a case going back to the beginning of the decade that tribes have authority over child support. The court directed the state to enforce tribal support orders like it does those issued by other states, even if one of the parents isn’t a tribal member.

Read the full article at the Alaska Dispatch News website.  Read related articles at the Juneau Empire website, the Native News website and the Indianz.com website.

Indian Children’s Law in Choctaw Foster Case Praised by Some, Criticized by Others

A California couple’s fight to reunite with a 6-year-old foster child who was taken from their home last week because she is 1/64th Choctaw Native American has cast a spotlight on the Indian Child Welfare Act.

The law has been long hailed as a protective tool for Native American communities by some and criticized as misinterpreted and misguided by others.

Read the full article at the NBC News website.

California Returns Child to Family in ICWA Case (Updated 3/28/2016)

On Monday, March 21, pandemonium broke out in Santa Clarita, California, at the home of foster couple Summer and Russell Page as social workers from the Department of Children and Family Services arrived to pick up a 6-year-old girl who was being held by the couple in defiance of a court ordering her returned to relatives after a five-year custody battle.

Read the full article at the Indian Country Today Media Network website.

See more coverage:

“Indian Child Welfare Act to separate foster daughter from family” at the ABC7 Chicago website (3/21/2016)

“NCAI Supports Responsible, Informed Response to California ICWA Case” at the Indian Country Today Media Network website (3/23/2016)

“Santa Clarita foster parents appeal to state Supreme Court in tribal custody battle” at the LA Times website (3/23/2016)

“Custody case of Native American girl appealed to high court” at the Eastern University Waltonian website (3/24/2016)

ICWA: Victory for Tribes as Judge Reaffirms South Dakota Decision

The class action case is now in its third year, having been filed in March 2013 by three Indian mothers and the Oglala and Rosebud Sioux Tribes in South Dakota to address ongoing violations in that state. According to tribal officials and advocacy groups, approximately 750 Indian children a year are swept into foster care, sometimes for months on end, with virtually no compliance with state and federal law.

For decades, Indian parents in Pennington County have been refused court-appointed counsel as stipulated in ICWA, the right to speak in their own defense, cross-examine witnesses or present evidence at the emergency hearings, many of which lasted less than 90 seconds, their suit alleged. They were also denied the right to review the secret petitions filed against them, documents which are routinely available only to the judge.

Read the full article at the Indian Country Today Media Network website.

Gila River Indian Community v. Department of Child Safety, December 8, 2015 (Arizona)

Synopsis provided by Westlaw: Indian community moved to change child’s custody from foster home to aunt. After an evidentiary hearing, the Superior Court, Maricopa County, No. JD 510468, Shellie F. Smith, Judge Pro Tem, denied the motion.

Holdings provided by Westlaw: The Court of Appeals, Downie, J., held that:
[1] as a matter of first impression, clear and convincing standard of proof applied to determination of whether good cause existed to deviate from placement preferences set forth in Indian Child Welfare Act (ICWA), and
[2] remand was required to allow court to apply clear and convincing evidence standard.
Vacated and remanded

Read the full decision at the National Indian Law Library website.

In re Doe, February 1, 2016 (Idaho)

Synopsis provided by Westlaw: In adoption proceedings in which Indian tribes intervened, claiming the child at issue was an Indian child protected by the Indian Child Welfare Act (ICWA), the 7th Judicial District Court, Bonneville County, Ralph L. Savage, Magistrate Judge, determined that child was not an Indian child, granted adoption, and granted attorney fees against tribes. Tribes appealed.

Holdings from Westlaw: The Supreme Court, W. Jones, J., held that:
1) any error in trial court’s failure to find that child was an Indian child subject to the ICWA was harmless;
2) trial court abused its discretion by compelling discovery with respect to application by child’s father for Indian tribe membership;
3) trial court abused its discretion by enjoining tribes from processing or filing any enrollment for tribal membership on behalf of child; and
4) trial court order granting attorney fees in favor of adoptive parents violated tribes’ sovereign immunity.
Affirmed in part and reversed in part.
Read the full decision at the National Indian Law Library website.

Federal Judge Dismisses Anti-ICWA Suit

On Thursday a federal judge in the Eastern District of Virginia dismissed a suit challenging both the constitutionality of the Indian Child Welfare Act and the new federal guidelines that were implemented last February by the Bureau of Indian Affairs, citing a lack of subject matter jurisdiction and standing in the case.

Read the full article at the Indian Country Today Media Network website.

In re K.M., November 20, 2015 (California)

Synopsis provided by Westlaw: In a dependency proceeding, the Superior Court, Orange County, No. DP024561, Craig E. Arthur, J., terminated parental rights to child. Mother and father appealed. While the matter was still pending on appeal, the Superior Court issued a post judgment order finding that the county child welfare agency complied with the Indian Child Welfare Act (ICWA).

Holding provided by Westlaw: The Court of Appeal, O’Leary, P.J., held that juvenile court lacked jurisdiction to rule on the ICWA issue following its termination of parental rights.

Read the full decision at the National Indian Law Library website.

Disenrollment from Pala Band Affects Children in ICWA Case

Two children who were disenrolled by the Pala Band of Mission Indians cannot be protected by the Indian Child Welfare Act, a California appeals court ruled on Tuesday.

 

The tribe formally objected in July 2009 when K.P. and Kristopher were put up for adoption. Their mother, Michelle T., is enrolled.

 

But sometime during the proceedings, the tribe disenrolled the children. As a result, they are no longer considered “Indian,” the court determined.

Read the full article at the Indianz.com website.

In re Candace A., November 9, 2015 (California)

Synopsis from Westlaw: County child welfare agency filed dependency petition. The Superior Court, Los Angeles County, Valerie Skeba, No. DK05991, Juvenile Court Referee, issued jurisdiction findings and disposition order declaring child a dependent of the juvenile court and removing her from parents’ custody. Parents appealed.

Holdings from Westlaw: The Court of Appeal, Perluss, P.J., held that:
(1) evidence supported finding that child faced a “risk of serious physical harm or illness” from mother’s drug use;
(2) maternal grandmother’s report that she believed she had ancestry in a particular tribe triggered a duty to give Indian Child Welfare Act (ICWA) notice; and
(3) maternal great-uncle’s report that child had ancestors from particular tribes triggered a duty to give ICWA notice to those tribes.

Read the full decision on the National Indian Law Library website.

Jennifer L. v. State Department of Health and Social Services, August 28, 2015 (Alaska)

Synopsis provided by Westlaw: After Office of Children’s Services (OCS) took three minor children into emergency custody, a standing master determined that no probable cause existed and recommended that children be returned to mother’s custody. Following remand from the Supreme Court, 2014 WL 1888190, the Superior Court, Fourth Judicial District, Aniak, Douglas Blankenship, J., rejected recommendation and determined that probable cause existed. Mother appealed and Superior Court dismissed underlying case before State could file brief.

Holdings provided by Westlaw: The Supreme Court, Maassen, J., held that:
(1) public interest exception to mootness doctrine applied, and
(2) standing master’s order that children should be returned to parents was not effective until judicially reviewed.

Read the full decision on the National Indian Law Library website.

In re M.R., September 17, 2015 (North Dakota)

Synopsis provided by Westlaw: Father appealed from decision of the Juvenile Court, Cass County, East Central Judicial District, Susan J. Solheim, Judicial Referee, terminating his parental rights.

Holdings provided by Westlaw: The Supreme Court, Kapsner, J., held that:
(1) juvenile court’s finding that the conditions and causes of child’s deprivation were likely to continue was not clearly erroneous, and
(2) father, who was member of Indian tribe, did not show that child was an Indian child, such that ICWA’s heightened standards applied.

Read the full decision at the National Indian Law Library website.

State, Feds Defend Tribal Adoption Law

In court filings Friday, attorneys for the Bureau of Indian Affairs and the state Department of Child Safety federal agency acknowledged the Indian Child Welfare Act does require state courts when placing Indian children for adoption to give preference to a member of the child’s extended family. That is followed by priority by other members of the child’s tribe and, ultimately, other Indian families.

But they told U.S. District Court Judge Neil Wake that Congress had a valid reason for approving the law.

Read the full article at the Casa Grande Dispatch website.

Couples Sue Over Tribal Adoption Hurdles

For nearly four decades, couples wishing to adopt American Indian children out of troubled situations have faced several hurdles, including giving the child’s tribe a chance to find suitable tribal parents first.

Now some prospective adoptive parents, Indian birthparents and members of the adoption industry are challenging the laws and regulations involved.

Read the excerpt at the Family Law Prof blog or read the full article at the Wall Street Journal website.

In re I.R., July 28, 2015, (Maine)

Synopsis provided by Westlaw: The Department of Health and Human Services initiated child protection proceedings with regard to mother’s child. The District Court, Portland, Powers, J., entered judgment terminating mother’s parental rights. Mother appealed.

Holdings provided by Westlaw: The Supreme Judicial Court held that:
(1) the Indian Child Welfare Act (ICWA) did not apply to child protection proceeding, and
(2) evidence was sufficient to support a finding of parental unfitness.

Read the full decision at the National Indian Law Library website.

In re I.B. v. W.H., August 11, 2015, (California)

Synopsis provided by Westlaw: County Department of Children and Family Services filed juvenile dependency petition. After petition was sustained at jurisdictional hearing, the Department provided notice of the action to certain Indian tribes pursuant to the Indian Child Welfare Act (ICWA). Following six-month review hearing, the Superior Court, Los Angeles County, No. CK76502, Timothy Saito, J., found that the ICWA did not apply, terminated reunification services, and later terminated parental rights. Mother appealed.

Holdings provided by Westlaw: The Court of Appeal, Willhite, J., held that:
(1) case worker was required to provide follow up notice to tribes after receiving additional information regarding relatives, and
(2) failure to provide follow up notice was not harmless error.

Read the full decision at the National Indian Law Library website.

War of Words: ICWA Faces Multiple Assaults From Adoption Industry

“At this point it is pretty clear that anti-ICWA advocates, who primarily represent adoption interests, have started a coordinated attack on ICWA,” said Kate Fort, Staff Attorney and Adjunct Professor for the Indigenous Law and Policy Center at Michigan State University College of Law. “They are looking for cases of opportunity in courts across the country by inserting themselves and trying to make the same constitutional arguments against ICWA. But this lawsuit will absolutely hurt vulnerable children and families in our state child welfare systems. Their claims that ICWA’s protections are substandard is simply not true. ICWA’s standards are considered the gold standard of child welfare practice. To say these lawsuits to dismantle ICWA are in the best interest of the child is really contrary to what is considered best practices by child welfare professionals.”

Read the full article at the Indian Country Today Media Network website.

In re P.R., May 12, 2015, (California)

Synopsis provided by Westlaw: County health and human services agency filed dependency petition. The Superior Court, Shasta County, No. 13JVSQ2966501, Molly A. Bigelow, J., sustained jurisdictional allegations, terminated reunification services, terminated parental rights, selected a permanent plan of adoption, and found that the child was not placed within Indian Child Welfare Act (ICWA) preferences because there were no available homes within the preferences. Mother appealed.

Holding provided by Westlaw: The Court of Appeal, Duarte, J., held that mother lacked standing to challenge dependency court’s finding of good cause to deviate from ICWA in terminating parental rights.
Appeal dismissed.

Read the full decision at the National Indian Law Library website.

In re K.J.B., June 11, 2015, (Washington)

Synopsis provided by Westlaw: In child protection proceeding, the Yakima Superior Court, David A. Elofson, J., terminated father’s parental rights. Father appealed.

Holdings provided by Westlaw: The Court of Appeals, Lawrence-Berrey, J., held that:
(1) state satisfied notice requirements of Indian Child Welfare Act (ICWA) by notifying Bureau of Indian Affairs (BIA), but not “Blackfoot” tribe, of parental rights termination proceeding after father claimed Indian tribal ancestry on behalf of his child;
(2) three-month delay in Department of Social and Health Sciences’ referral of father to individual counseling, couple’s counseling, and a mental health assessment, following such recommendation from parent educator, did not make referrals untimely, in violation of statute governing steps to be taken prior to terminating parental rights;
(3) counseling and mental health assessment were not necessary services for correcting father’s identified parenting deficiency of substance abuse and, thus, Department did not fail to tailor services to father’s needs, prior to terminating his parental rights, by not offering those services concurrently with his substance abuse treatment;
(4) substantial evidence supported finding that offer of counseling services or a mental health assessment any earlier in dependency proceeding would have been futile because of father’s continued drug use, such that those services were not required prior to terminating father’s parental rights; and
(5) trial court’s error in failing to weigh statutory considerations applicable to incarcerated parents when deciding to terminate incarcerated father’s parental rights was harmless.

Read the full decision at the National Indian Law Library website.

In re the Adoption of T.A.W., July 7, 2015, (Washington)

Synopsis provided by Westlaw: Indian mother and her husband petitioned to terminate non-Indian biological father’s parental rights to Indian son and to allow husband to adopt son. The Superior Court, Pacific County, Douglas E. Goelz, J., granted petition. Father appealed.

Holdings provided by Westlaw: The Court of Appeals, Maxa, J., held that:
(1) father could raise the “active efforts” requirement of Indian Child Welfare Act (ICWA) for the first time on appeal;
(2) termination provisions of ICWA applied to non-Indian father; and
(3) under Washington law, “active efforts” requirement applies to a parent who has had custody of an Indian child and has not expressly relinquished parental rights even if that parent at some point in time has abandoned the child.

Read the full decision at the National Indian Law Library website.

In re Jassenia H., June 12, 2015, (Nebraska)

Synopsis provided by Westlaw: After juvenile court granted state agency temporary custody of child and ordered that she be removed from mother’s care, State filed a petition for adjudication alleging that child lacked proper parental care and/or that child was in a situation dangerous to life or limb or injurious to her health or morals. In a hearing on the applicability of Indian Child Welfare Act (ICWA), the Separate Juvenile Court, Lancaster County, Toni G. Thorson, J., determined that the ICWA applied to the adjudication proceeding. Child’s guardian ad litem (GAL) appealed.

Holding provided by Westlaw: The Supreme Court, Cassel, J., held that juvenile court’s determination that the ICWA and the Nebraska Indian Child Welfare Act (NICWA) were applicable to adjudication proceedings did not a affect a substantial right.

Read the full decision at the National Indian Law Library website.

ALERT: Online Press Conference Tuesday, July 7

What:  Press conference announcing anti-ICWA lawsuit and campaign

When:  Tuesday, July 7, 2015, 9:00 a.m. Pacific time

Where: https://www.youtube.com/user/GoldwaterInstitute

Who:  Goldwater Institute representatives

From the press release:

Goldwater Institute to File Class Action Lawsuit Against Indian Child Welfare Act

Phoenix—Tomorrow, Tuesday, July 7, the Goldwater Institute will launch a new project to reform the Indian Child Welfare Act and similar state laws that give abused and neglected Native American children fewer rights and protections than other American children. Part of this project will be a class action lawsuit.

 “When an abused child is removed from his or her home and placed in foster care or made available for adoption, judges are required to make a decision about where the child will live based on the child’s best interest. Except for Native American children. Courts are bound by federal law to disregard a Native American child’s best interest and place the child in a home with other Native Americans, even if it is not in his or her best interest,” said Darcy Olsen, president of the Goldwater Institute. “We want federal and state laws to be changed to give abused and neglected Native American children the same protections that are given to all other American children: the right to be placed in a safe home based on their best interests, not based on their race.”

On July 7, the Goldwater Institute will file a federal class action lawsuit to challenge the constitutionality of core provisions of the federal Indian Child Welfare Act. The same day, the Institute will release an investigative report that documents how federal law leaves Native American children with fewer protections under the law than all other American children, and the serious consequences that have resulted from this unequal treatment. Recommendations for changes to state and federal law will also be announced.

Read more at the Turtle Talk blog.

Payton S. v. State of Alaska, Department of Health and Social Services, may 1, 2015, (Alaska)

Synopsis provided by Westlaw: The Office of Children’s Services (OCS) sought to terminate parental rights to Indian children. The Superior Court, Fourth Judicial District, Bethel, Dwayne W. McConnell, J., terminated parental rights. Parents appealed.

Holdings provided by Westlaw: The Supreme Court, Maassen, J., held that:
(1) even though the trial court erred by entering an adjudication and disposition order when the parents lacked proper notice of the hearing, the error did not violate parents’ due process rights as it did not affect the outcome of the case;
(2) evidence supported finding that children were children in need of aid (CINA);
(3) evidence supported finding that parents had failed to remedy the conduct that placed the children at substantial risk of harm;
(4) evidence supported finding that Indian children were likely to suffer serious emotional or physical harm if returned to their parents’ custody; and
(5) the trial court’s determination that termination of mother and father’s parental rights was in the best interests of their Indian children was not clearly erroneous.

Read the full decision at the National Indian Law Library website.

Lavallie v. Lavallie, March 24, 2015, (North Dakota)

Synopsis provided by Westlaw: After mother assigned her right to recover benefits paid by state for Indian child, the state sought to impose future child support obligation on father, and to recover a judgment for support expended to mother on behalf of child. The District Court, Rolette County, Michael G. Sturdevant, J., denied purported father’s motion to dismiss child support procurement proceeding, and he appealed.

Holding provided by Westlaw: The Supreme Court, VandeWalle, C.J., held that District Court had concurrent jurisdiction with tribal court to establish father’s child support obligation with regard to Indian child.

Read the full decision at the National Indian Law Library website.

‘A Great Triumph for Our Indian Children’: Tribes Win Landmark Child Welfare Case

On Monday, March 30 a federal judge issued a landmark decision affirming that officials in South Dakota violated numerous provisions in the Indian Child Welfare Act (ICWA) and denied Indian parents their rights under the Due Process Clause of the Constitution. Referencing widespread and systemic failure to protect the integrity of Indian families, Judge Jeffrey Viken issued a partial summary judgment in favor of the plaintiffs in Oglala Sioux Tribe v. Luann Van Hunnik on seven issues before the court regarding emergency removal hearings, also known as “48-hour hearings,” in Pennington County, South Dakota.

Read the full article at the Indian Country Today Media Network website.

Read an opinion piece by attorney Stephen Pevar at the ACLU website.

Read related coverage at the NPR website, the People’s World website, and Indianz.com.

See court documents at Turtle Talk.

 

New Jersey Div. of Child Protection and Permanency v. K.T.D., February 20, 2015, (New Jersey)

Synopsis provided by Westlaw: State Division of Child Protection and Permanency petitioned to terminate mother’s parental rights to child with Native American ancestors. The Superior Court, Chancery Division, Family Part, Camden County, terminated parental rights. Mother appealed.

Holding provided by Westlaw: The Superior Court, Appellate Division, O’Connor, J., held that trial court was required to notify Indian tribes and Bureau of Indian Affairs (BIA) of guardianship proceeding and right to intervene.

Read the full decision at the National Indian Law Library website.

In re H.G., February 24, 2015, (California)

Synopsis provided by Westlaw: County human services agency filed dependency petition. The Superior Court, Ventura County, Nos. J068715 & J069080, Bruce A. Young, J., granted petition and terminated parental rights. Parents appealed.

Holding provided by Westlaw: The Court of Appeal, Perren, J., held that noncompliance with Indian Child Welfare Act (ICWA) required reversal.
Reversed and remanded.

Read the full decision at the National Indian Law Library website.

In re KMN, February 26, 2015, (Michigan)

Synopsis provided by Westlaw: County human services agency filed dependency petition. The Superior Court, Ventura County, Nos. J068715 & J069080, Bruce A. Young, J., granted petition and terminated parental rights. Parents appealed.

Holding provided by Westlaw: The Court of Appeal, Perren, J., held that noncompliance with Indian Child Welfare Act (ICWA) required reversal. Reversed and remanded.

Read the full decision at the National Indian Law Library website.

Sylvia L. v. State of Alaska, February 20, 2015, (Alaska)

Indian Law Bulletins  | State Courts

Synopsis provided by Westlaw: Office of Children’s Services (OCS) petitioned to terminate mother’s parental rights with regard to one Indian and two non-Indian children. Following a bench trial, the Superior Court, Third Judicial District, Anchorage, Patrick J. McKay, J., terminated mother’s parental rights with regard to the three children, and she appealed.Holdings provided by Westlaw: The Supreme Court, Maassen, J., held that:
(1) any error in allowing the OCS’s tardy amendment of its petition to terminate mother’s parental rights with regard to one Indian and two non Indian children to include allegations of mother’s mental illness, was harmless;
(2) the OCS made reasonable efforts to reunify mother with two of her non-Indian children;
(3) the OCS made active, but unsuccessful, efforts to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family;
(4) the Superior Court’s decision to allow the testimony of the OCS’s expert on substance abuse and mental health did not constitute an abuse of discretion; and
(5) the OCS’s Indian Child Welfare Act of 1978 (ICWA)-qualified expert’s testimony
was sufficiently grounded in the facts and issues of the case to be admissible.

Read the full decision at the National Indian Law Library website.

Michigan Court of Appeals Reverses Adoption of Indian Child; Cites Michigan Adoptive Placement Preference Standards

The federal government and the state of Michigan show concern over potential separation of Indian children from their families and tribes through the Indian Child Welfare Act (ICWA) and the Michigan Indian Family Preservation Act (MIFPA), which include adoptive placement preference requirements for individuals seeking to adopt Indian children.

Those laws again came into play in a recent opinion of the Michigan Court of Appeals which reversed the adoption of an Indian child by a non-Indian family where an Indian family had filed a delayed petition to adopt the same child.

Read the full blog post at the jdsupra.com website.

Alaska Requests More Time to Consider Position in ICWA Dispute

“The state has requested an additional 30-day extension because the administration needs additional time to determine its response to the issues raised in the petition and the amicus brief,” Jacqueline Schaffer, an assistant attorney general with the Alaska Department of Law, told KNBA.

Read the March 18 article at the Indianz.com website.

Related links:

March 18, 2015. “State Upholds Decision in Case of Native Child Adoption.” at the Newsminer website.

March 11, 2015. “Native Nonprofits Want State to Change on Adoption Case.” at the Alaska Public Media website.

March 9, 2015: “Alaska tribes want state to join rehearing request in ICWA case” at the Indianz.com website.

 

Native Sun News: Lakota Children in ‘Imminent Danger’ in State

The class action lawsuit, which involves the first 48 hours after an Indian child is taken from his or her family, alleges the State of South Dakota regularly violates the Constitutional Rights of Indian parents and provision 1922 of the Indian Child Welfare Act during the “show cause” hearing. The case, OST et. al vs Van Hunnik et. al., being heard in the Federal Courthouse in Rapid City before Chief U.S. District Judge Jeffery Viken, was filed two years ago by ACLU attorneys Dana Hanna and Stephen Pevar on behalf of the Oglala and Rosebud Sioux Tribes and all Indian parents in Pennington County against the Department of Social Services, Judge Jeff Davis and the States Attorney Mark Vargo. Last week attorneys argued on the scope of judicial privilege when it comes to conversations Davis had with other judges and his staff. Plaintiffs have asked for “discovery” of those conversations.

Read the full article at the Indianz.com website.

Tribes asking federal court to force judge to disclose communications

Chief U.S. District Judge Jeffrey Viken delayed a ruling on whether … 7th Circuit Judge Jeff Davis, of Rapid City, would have to turn over records of his discussions with other 7th Circuit judges…. Viken’s ultimate decision may be a key ruling in the 2-year-old lawsuit brought by the Oglala Sioux and Rosebud Sioux tribes and Native American parents against Davis, the South Dakota Department of Social Services officials and Pennington County State’s Attorney Mark Vargo.

Read the full article at the Rapid City Journal website.

In re S.B.C., December 30, 2015 (Montana)

Synopsis: The Department of Public Health and Human Services, Child and Family Services Division, sought permanent legal custody of Indian child with right to consent to adoption. The District Court, Missoula County, Edward P. McLean, P.J., terminated both parents’ rights to the child, and granted the Department permanent legal custody with right to consent to adoption. Mother and father appealed.

Holdings: The Supreme Court, en banc, Jim Rice, J., held that:
(1) good cause existed to deny transfer of jurisdiction over custody matter involving Indian child to the tribal court;
(2) the proceeding had not advanced to a stage that rendered the Tribe’s motion for transfer of jurisdiction to the tribal court untimely as a matter of law;
(3) Indian Child Welfare Act (ICWA) section, providing that “no termination of parental rights may be ordered in the absence of testimony of qualified expert witnesses, that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child,” did not apply where father never had custody of the child; and
(4) the District Court did not abuse its discretion in terminating mother’s parental rights.

Read the full decision at the National Indian Law Library website. Read the case briefs at the Turtle Talk website.

Ebert v. Bruce L., January 22, 2015 (Alaska)

Synopsis: Prospective parents petitioned to adopt Indian child over objection of biological father. The Superior Court, Third Judicial District, Palmer, Eric Smith, J., denied petition. Prospective parents appealed.

Holding: The Supreme Court, Bolger, J., held that:
(1) no serious conflict existed between state statute governing adoption and Indian Child Welfare Act (ICWA), such that ICWA would preempt statute;
(2) trial court did not clearly err in finding that father’s failure to support child was justifiable, such that his consent to adoption was still required; and
(3) interim child visitation order entered in related custody proceeding was not final judgment from which appeal could be taken.
Affirmed.

Read the full decision at the National Indian Law Library website.

In re Doe, January 23, 2015 (Idaho)

Synopsis provided by Westlaw: Mother of Native American child appealed from order of the District Court, Third Judicial District, Payette County, Brian D. Lee, Magistrate Judge, terminating mother’s parental rights.

Holding provided by Westlaw: The Supreme Court, J. Jones, J., held that substantial and competent evidence supported finding that state made active efforts to prevent the breakup of the family, as required before termination of mother’s parental rights.
Affirmed.

Read the full decision at the National Indian Law Library website.

In re H.T., February 10, 2015 (Montana)

Synopsis provided by Westlaw: Department of Public Health and Human Services filed petition to terminate mother’s parental right to Indian child after emergency foster care placement. The Eighth Judicial District Court, Cascade County, Julie Macek, J., terminated parental rights. Mother appealed.

Holdings provided by Westlaw: The Supreme Court, Beth Baker, J., held that:
(1) mother’s stipulation to treatment plan and temporary legal custody was not a stipulation to adjudication of child as a youth in need of care;
(2) trial court’s erroneous failure to hold adjudicatory hearing was harmless;
(3) notice to inform tribe of hearing to adjudicate child as youth in need of care complied with Indian Child Welfare Act (ICWA);
(4) notice by certified mail, return receipt requested, to notify tribe of proceedings to terminate parental rights complied with ICWA;
(5) mother’s stipulation to temporary legal custody rendered unnecessary the presentation of evidence or factual findings under ICWA; and
(6) trial court incorrectly applied standard of “clear and convincing evidence” for termination of rights.
Affirmed in part, vacated in part, and remanded.

Read the full decision at the National Indian Law Library website.

In re ARW, February 19, 2015 (Wyoming)

Synopsis provided by Westlaw: Prospective adoptive parents filed a petition to terminate father’s parental rights. The District Court of Natrona County, Daniel L. Forgey, J., terminated parental rights. Father appealed.

Holding provided by Westlaw: The Supreme Court, Burke, C.J., held that:
(1) evidence supported determination that the Indian Child Welfare Act (ICWA) did not apply to termination of parental rights proceeding, and
(2) evidence supported finding that father was not fit to have custody and control of child, in support of order terminating father’s parental rights.
Affirmed.

Read the full decision at the National Indian Law Library website.

New Jersey Div. of Child Protection and Permanency v. K.T.D., February 20, 2015 (New Jersey)

Synopsis provided by Westlaw: State Division of Child Protection and Permanency petitioned to terminate mother’s parental rights to child with Native American ancestors. The Superior Court, Chancery Division, Family Part, Camden County, terminated parental rights. Mother appealed.

Holding provided by Westlaw: The Superior Court, Appellate Division, O’Connor, J., held that trial court was required to notify Indian tribes and Bureau of Indian Affairs (BIA) of guardianship proceeding and right to intervene.

Read the full decision at the National Indian Law Library website.

Read news coverage at the Indianz.com website.

In re H.G., February 24, 2015 (California)

Synopsis provided by Westlaw: County human services agency filed dependency petition. The Superior Court, Ventura County, Nos. J068715 & J069080, Bruce A. Young, J., granted petition and terminated parental rights. Parents appealed.

Holding provided by Westlaw: The Court of Appeal, Perren, J., held that noncompliance with Indian Child Welfare Act (ICWA) required reversal.
Reversed and remanded.

Read the full decision at the National Indian Law Library website.

Michigan Court of Appeals Reverses Termination of Parental Rights; Cites Indian Child Welfare Act Standard

In any child custody proceeding involving Indian children, all parties should understand there are significant legal and procedural requirements that must be met before parental rights to Indian children may be terminated. The federal government and the State of Michigan show concern over potential separation of Indian children from their families and tribes through the Indian Child Welfare Act (ICWA) and the Michigan Indian Family Preservation Act (MIFPA), which require a heightened evidentiary standard. This heightened evidentiary standard is supplemented by additional procedural requirements contained in the Michigan Court Rules.

See the full post at the JDSupra website.

Asa’carsarmuit Tribal Council v. Wheeler III, November 21, 2014, (Alaska)

Synopsis from Westlaw: Father filed emergency motion to modify custody after State initiated Child In Need of Aid (CINA) action against mother. Tribal council which had issued original custody order was permitted to intervene. The Superior Court, Third Judicial District, Anchorage, Andrew Guidi, J., awarded father primary physical custody. Council appealed.

Holding from Westlaw: The Supreme Court, Fabe, C.J., held that council lacked standing to appeal order modifying custody from which neither father nor mother appealed. Appeal dismissed.

Read the full decision at the National Indian Law Library website.

In re Interest of Shayla H., November 14, 2014, (Nebraska)

Synopsis provided by Westlaw: The Department of Health and Human Services (DHHS) initiated dependency proceedings concerning father’s three Native American children. The Juvenile Court, Lancaster County, Linda S. Porter, J., adjudicated children as dependent, and subsequently entered dispositional order the DHHS had made reasonable efforts at reunification, but that it was in best interests of children that father have only physical custody of children and that DHHS retain legal custody. Father appealed. The Court of Appeals, 22 Neb.App. 1, 846 N.W.2d 668, affirmed in part, reversed in part, and remanded. DHHS petitioned for review.

Holding provided by Westlaw: The Supreme Court, Stephan, J., held that in dependency proceedings involving Native American children, DHHS had to make active efforts at reunification, not merely reasonable efforts, pursuant to Indian Child Welfare Act (ICWA) and Nebraska Indian Child Welfare Act (NICWA). Affirmed.

Read the full decision at the National Indian Law Library website.

Department of Human Services v. M.D., November 13, 2014 (Oregon)

Synopsis from Westlaw: In child protection case involving Indian child, the Circuit Court, Jackson County, Patricia Crain, J., entered order determining that Department of Human Services (DHS) made active efforts to provide remedial services and rehabilitative programs designed to prevent the breakup of an Indian family. Mother appealed.

Holding from Westlaw: The Court of Appeals, Ortega, P.J., held that DHS made active efforts.
Affirmed.

Read the full decision at the National Indian Law Library website.

Chloe W. v. State, Dep’t of Health & Social Serv., and Office of Children’s Serv., November 7, 2014 (Alaska)

Synopsis from Westlaw: The Office of Children’s Services (OCS) petitioned to terminate mother’s parental rights to Indian child. The Superior Court, First Judicial District, Juneau, Louis J. Menendez, J., terminated parental rights. Mother appealed.

Holdings from Westlaw: The Supreme Court, Fabe, C.J., held that:
(1) counsel’s decision to enter into a stipulation as to psychiatrist’s proposed testimony, rather than request a hearing to address the statements psychiatrist made in his affidavit, did not prejudice mother;
(2) evidence supported finding that mother failed to remedy the conduct that placed child at substantial risk of harm;
(3) evidence supported finding that the Office of Children’s Services (OCS) made active efforts to prevent the breakup of mother’s Indian family; and
(4) evidence supported finding that returning child to mother would likely result in serious harm.
Affirmed.

Read the full decision at the National Indian Law Library website.

In re M.H., November 7, 2014 (Kansas)

Synopsis provided by Westlaw: Father appealed order of the District Court, Shawnee County, Jean M. Schmidt, J., terminating his parental rights.

Holdings provided by Westlaw: The Court of Appeals, Leben, J., held that:
(1) state sufficiently proved that it had complied with requirement of Indian Child Welfare Act (ICWA);
(2) clear and convincing evidence showed that father was unfit; and
(3) termination was in child’s best interests.
Affirmed.

Read the full decision at the National Indian Law Library website.

Dinwiddie Dep’t of Social Services v. Nunnally, October 31, 2014 (Virginia)

Synopsis provided by Westlaw: Department of Social Services (DSS) filed petitions for foster care plans with the goal of adoption and to terminate parental rights of father and Indian mother. Indian tribe filed a motion to intervene and filed a motion to transfer jurisdiction to tribal court under the Indian Child Welfare Act (ICWA). The Juvenile and Domestic Relations District Court, Dinwiddie County, denied the petitions to terminate parental rights. The DDSS and the guardian ad litem appointed to represent the children appealed. The Circuit Court, Dinwiddie County, found that good cause existed not to transfer the proceeding to tribal court and terminated mother’s and father’s parental rights, and parents appealed. The Court of Appeals reversed the judgment of the trial court on the motion to transfer, vacated the order terminating the parental rights of the mother and father, and remanded, and appeal was taken.

Holding provided by Westlaw: The Supreme Court held that case would be remanded to determine whether to transfer termination action involving Indian child to tribal court in light of Thompson, which rejected “best interests of child test” in favor of the more limited test involving an immediate serious emotional or physical harm.
Affirmed.

Read the full decision at the National Indian Law Library website.

In re L.S., J.R., et al. October 24, 2014 (California)

Synopsis provided by Westlaw: County Health and Human Services Agency filed dependency petition alleging children were at risk. Following contested dispositional hearing, parents filed motion to modify bypass order and sought reunification services.The Superior Court, El Dorado County, Nos. SDP20130007 & SDP20130008, Dylan M. Sullivan, Court Commissioner, denied the motion, terminated parental rights, and selected adoption as the children’s permanent plan. Parents appealed.

Holding provided by Westlaw: The Court of Appeal, Nicholson, Acting P.J., held that:
(1) preponderance of the evidence burden of proof applied to parents’ petitions for modification;
(2) error in applying heightened clear and convincing evidence standard of proof was not harmless;
(3) court was required to consider whether Indian Child Welfare Act (ICWA) applied; and
(4) beneficial parental relationship exception did not apply.
Reversed and remanded.

Read the full decision at the National Indian Law Library website.

In re McCarrick/Lamoreaux, October 23, 2014 (Michigan)

Synopsis: (from the opinion) “This consolidated child welfare dispute involves three dockets. In Docket No. 315510, respondent-mother, M. McCarrick, appeals of right the trial court’s March 13, 2013 order removing her three minor children from her home. In Docket No. 317403, McCarrick appeals of right the trial court’s June 28, 2013 order removing her minor daughter from her father’s care and custody. The child’s father is not participating in these appeals. In Docket No. 318475, McCarrick appeals by delayed leave granted FN1 the trial court’s orders removing the children from her care.”

Holding: (from the opinion) “Because the trial court failed to comply with the Indian Child Welfare Act (ICWA) and the Michigan Indian Family Preservation Act (the Family Preservation Act), we conditionally reverse and remand for further proceedings.”

Read the full decision at the National Indian Law Library website.

In the matter of L.M., October 22, 2014 (Oregon)

Synopsis provided by Westlaw: In child dependency proceedings, parents appealed judgment of the Circuit Court, Douglas County, William A. Marshall, J., changing the permanency plan for their child from reunification to adoption.

Holding provided by Westlaw: The Court of Appeals, Ortega, P.J., held that:
(1) permanency hearing was not a key juncture in which due process prohibited admission of exhibits under relaxed standards for competency of evidence;
(2) agency provided active efforts to parents under Indian Child Welfare Act (ICWA);
(3) father and mother failed to make sufficient progress to allow child to return home safely; and
(4) change in plan from reunification to adoption was not a “foster care placement” under ICWA. Affirmed.

Read the full decision at the National Indian Law Library website.

C.F. v. The Superior Court, October 1, 2014 (California)

Background provided by Westlaw: Child dependency proceeding was commenced. The Superior Court, Mendocino County, Nos. SCUKJVSQ 13–16775, SCUKJVSQ 13–16776, SCUKJVSQ 13–16777, Cindee F. Mayfield, J., issued order setting a permanent plan hearing, and mother petitioned for extraordinary relief.

Holdings provided by Westlaw: The Court of Appeal, Rivera, J., held that:
1) Court of Appeal would apply substantial evidence review, and
2) evidence was sufficient to support finding that County Health and Human Services Agency made active efforts required by the Indian Child Welfare Act.

Read the full decision on the National Indian Law Library website.

In re M.S. , September 30, 2014 (Montana)

Synopsis provided by Westlaw: Department of Public Health and Human Services filed petition to terminate parental rights of mother and Indian father to Indian child. Notice was given to father’s tribe, and tribe intervened. The petition was dismissed and then refiled. Mother voluntarily relinquished her parental rights. The Eighth Judicial District Court, County of Cascade, Dirk M. Sandefur, J., entered order terminating father’s parental rights, and he appealed.

Holding provided by Westlaw: The Supreme Court, Beth Baker, J., held that:
(1) evidence did not show that Department strictly complied with requirements for notice to tribe under Indian Child Welfare Act (ICWA);
(2) Department’s failure to strictly comply with notice requirements was harmless error;
(3) Department made active efforts to provide remedial services and rehabilitative programs designed to prevent breakup of Indian family, as prerequisite to termination of father’s parental rights;
(4) district court adequately found that continued custody of child by father was likely to result in serious emotional or physical damage to child; and
(5) termination of parental rights was not by summary judgment.
Affirmed.

Read the full decision on the National Indian Law Library website.

In re Francisco D., September 29, 2014 (California)

Synopsis provided by Westlaw: County department of children and family services (DCFS) filed dependency petition. The Superior Court, No. CK98476, Los Angeles County, Jacqueline Lewis, Referee, sustained jurisdictional allegations and removed child from adoptive mother’s care. Mother appealed.

 Holding provided by Westlaw: The Court of Appeal, Kitching, J., held that:
(1) child’s sister had been abused or neglected by adoptive mother;
(2) child had been “subjected to an act or acts of cruelty” by mother; and
(3) there was a substantial risk to the emotional and physical well-being of child.
Affirmed.

Read the full decision on the National Indian Law Library website.

Alaska Supreme Court: Native Child can be Adopted by Non-Native Family

 

In a split decision, the Alaska Supreme Court has ruled against the village of Tununak, which was appealing a lower court’s decision that allowed an Alaska Native infant to be adopted by non-Native parents rather than giving custody to her extended biological family in the tiny Western Alaska community.

The Supreme Court’s ruling this month upholds an earlier Superior Court ruling that concerns about the baby girl’s well-being trumped legal preferences built into a federal law designed to keep children from being adopted away from their Native American communities when possible.

Citing a U.S. Supreme Court ruling on a similar case, three of the Alaska Supreme Court justices said the lower court was correct in letting a non-Native couple in Anchorage adopt the girl, because an approved member of her biological family had not officially filed to adopt her. Two of the justices disagreed, saying that was not enough reason to override the Native preference.

Read more of the article at the News Miner website and a related article at the Reuters website.
Read a copy of the court decision at the National Indian Law Library website and copy of the briefs files in the case at the Turtle Talk blog.

Alaska Supreme Court’s latest ICWA Decision is a Blow to Alaska Native Family Rights

On September 12, 2014, the Alaska Supreme Court issued a decision that will effectively bar most Alaska Native families from asserting their rights under the Indian Child Welfare Act (ICWA) and in doing so will increase the number of Native children severed from their families and culture.

In the Native Village of Tununak II v. the State of Alaska, the Alaska Supreme Court ruled that in order to be considered as an adoptive placement option for children in State custody, family members and other Native families must file formal adoption petitions in State Superior Court. The Alaska Supreme Court held that the United States Supreme Court’s decision last year in the Baby Veronica case required this new rule.

Read the full press release at the Tanana Chiefs Conference website.

See related press release at the National Indian Child Welfare Association website.

In re Isaiah W., August 8, 2014 (California)

Synopsis provided by Westlaw: Department of Children and Family Services filed a petition alleging that mother’s and father’s illicit drug use placed child at risk of harm. After terminating parents’ reunification services and setting a hearing on the termination of parental rights, the Superior Court, Los Angeles County, No. CK91018, Jacqueline H. Lewis, J., entered order terminating mother’s and father’s parental rights. Mother appealed.

Holding providing by Westlaw: The Court of Appeal, Kitching, J., held that mother forfeited her right to raise a challenge to the juvenile court’s finding that the Indian Child Welfare Act (ICWA) did not apply. Affirmed.

Read the full decision at the National Indian Law Library website.

Judge Accepts Feds’ Comments on Indian Child Welfare Case (South Dakota)

August 18, 2014. In what is being called a rare move, the Department of Justice last week threw its support behind two South Dakota tribes and two Native American mothers that have accused state officials of violating the Indian Child Welfare Act by taking custody of their children for 60 days after only a brief hearing.

Read the full article at the Rapid City Journal website.

Listen to related coverage at the South Dakota Public Broadcasting website.

Why Are These Indian Children Being Torn Away From Their Homes?

Imagine entering family court and knowing that what’s at stake is the person you hold most dear – your child. Now imagine having a judge tell you that he’s removing your child from your custody, from your home. When you ask him why, the judge’s replies, “I honestly can’t tell you.” The judge then signs an order giving custody of your son to Social Services.

You might think that such a court proceeding could never happen in the United States – but you’d be wrong.

Read the full article by Stephen Pevar at the ACLU website.

Alaska Supreme Court sides with Interior tribe in child custody, sovereignty case

The Alaska Supreme Court ruled Friday in support of an Interior tribal court in a child custody and tribal sovereignty case that was contested by Gov. Sean Parnell’s administration.

The case, Simmonds v. Parks, started almost six years ago as a custody dispute in the Village of Minto, a town of 200 people about 130 road miles northwest of Fairbanks.

Native American Rights Fund logoRead the full article at the NewsMiner.com website.

Learn more about the case at the Native American Rights Fund website.

Billie v. Stier, April 25, 2014 (Florida)

Synopsis provided by Westlaw: After unmarried mother who was member of Indian tribe filed custody petition in tribal court, father filed custody petition in circuit court. The Circuit Court, Miami–Dade County, entered order determining that it had jurisdiction pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). Mother filed petition for writ of prohibition.

Holding providing by Westlaw: The District Court of Appeal, Suarez, J., held that tribal court did not substantially comply with jurisdictional standards of the UCCJEA. Writ denied.
Read the full decision at the National Indian Law Library website.

In re Interest of Shayla H. et al., May 20, 2014 (Nebraska)

Synopsis provided by Westlaw: The Department of Health and Human Services (DHHS) initiated dependency proceedings concerning father’s three children. The Juvenile Court, Lancaster County, Linda S. Porter, J., entered dispositional order ordering a change of family therapist, declined to return legal custody of the children to father, and made specific ordered related only to father. Father appealed.

Holdings provided by Westlaw: The Court of Appeals, Moore, J., held that:
(1) the Indian Child Welfare Act’s (ICWA) active efforts standard, rather than the Nebraska Indian Child Welfare Act’s (NICWA) reasonable efforts standard, applied to dependency proceeding, and
(2) the rehabilitation plan provision that precluded father from using any unapproved form of physical discipline and ensuring the children always had adult supervision was reasonable.
Affirmed in part, reversed in part, and remanded.
Read the decision at the National Indian Law Library website.

In the Matter of D. JOHNSON, May 20, 2014. (Michigan)

Text from the court opinion:

“Respondent mother argues on appeal that the trial court erred when it failed to determine, on the record, the Native American heritage of the minor child and erred by not complying with the terms of the Indian Child Welfare Act (ICWA), 25 USC 1901 et seq., after the court was put on notice at the preliminary hearing of the child’s Native American roots.”

Read a copy of the full decision at the National Indian Law Library website.

In the Matter of Abbigail A. June 16, 2014 (California)

Synopsis from Westlaw: County department of health and human services filed  dependency petitions as to two children. The Superior Court, Sacramento County, Nos. JD232871 & JD232872, Paul L. Seave, J., directed counsel to make reasonable efforts to enroll the children and their father in a tribe which had notified the court that they were eligible for membership, concluded it was required to treat the eligible minors as Indian children under Indian Child Welfare Act (ICWA), but made jurisdictional findings and placed the children in the custody of their maternal grandmother.

Holding from Westlaw: The Court of Appeal, Butz, J., held that court rules extending ICWA protections to children merely eligible for tribal membership are invalid.
Reversed with directions.

Read the entire court decision at the National Indian Law Library website.

 

Miami Appeals Court Rules Custody Battle Should Stay in State Court

A Miami appeals court says a custody dispute between a Miccosukee mother and non-Indian father should remain in state court, not tribal court.

The decision Wednesday by the Third District Court of Appeal marks the first time a Florida appeals court has agreed to strip the authority of tribal court judges in a child custody case.

Read the full article at the Miami Herald website.

Read other articles about this news at:

Indianz.com

Susan R. Brown’s law website

and the Justice News Flash website.

Swept Away: An In-Depth Look at Oglala Sioux Tribe v. Van Hunnik

This on-going series from the Indian Country Today Media Network examines Oglala Sioux Tribe v. Van Hunnik, which charges South Dakota State and local Pennington County officials with violating the rights of Indian parents and tribes in child custody proceedings.

Indian Country Today Media Network logo Although the State of South Dakota appeared to be flagrantly operating outside the scope of the Indian Child Welfare Act, Hanna says, “This case is not just about ICWA. It’s about the systematic denial of due process and fundamental fairness: Indian parents and children have a constitutional right to have a meaningful hearing, one in which they can present evidence and be heard, before the state can take their children for two months and place them in foster care. Since 2010, they have been denied that right in the Seventh Judicial Circuit Court.”

Read Part 1: South Dakota’s Native Children Denied Due Process (2/20/14)
Read Part 2: Suing South Dakota to Protect Native Children (3/17/14)
Read Part 3: The Battle for South Dakota’s Native Children Begins (4/14/14)

In re R.L.-P., A.L.-P., R.L.-P., and L.L.-P, February 13, 2014, (North Dakota)

Synopsis from Westlaw: Mother’s and father’s parental rights were terminated by District Court of Burleigh County, South Central Judicial District, Sonna M. Anderson, J., and they both appealed.

Holding from Westlaw: The Supreme Court, Sandstrom, J., held that:
(1) judicial referee’s fact findings were subject to Supreme Court review for clear error;
(2) children remained deprived due to mother’s actions, at time of hearing on petition to terminate parental rights;
(3) children had been in foster care for more than 450 out of previous 660 nights, as grounds for termination of mother’s parental rights;
(4) social services made reasonable efforts to reunify children with both mother and father;
(5) admission of reports of suspected child abuse or neglect was not abuse of discretion; and
(6) tribe director’s determination that Indian Child Welfare Act (ICWA) did not apply was binding on trial court. Affirmed.
View the decision at the National Indian Law Library website.

Molly O. v. State, Dep’t of Health and Social Services, Office of Children’s Services, March 14, 2014, (Alaska)

Synopsis provided by Westlaw: Department of Health and Social Services, Office of Children’s Services (OCS), took emergency custody of three children and petitioned to terminate mother’s parental rights. The Superior Court, Fourth Judicial District, Fairbanks, Douglas Blankenship, J., denied mother’s motion to join grandmother, and grandmother’s motion to intervene as the children’s Indian custodian. Grandmother appealed.

Holdings provided by Westlaw: The Supreme Court, Stowers, J., held that:
(1) actions of mother and father acted to terminate grandmother’s Indian custodianship of the children;
(2) once parents informed the OCS that they did not want children placed with grandparents, OCS had no duty to provide grandmother with notice under the Indian Child Welfare Act of the Pendency of a child in need of aid (CINA) proceeding;
(3) any error by the OCS in failing to inquire into grandmother’s Indian custodian status, or to provide grandmother with notice of her rights under the Indian Child Welfare Act was harmless; and
(4) mother’s act of revoking maternal grandparent’s status as Indian custodian revoked, at least as far as the relationship between the OCS and grandmother was concerned, any indicia of custody that grandmother may have acquired through powers of attorney.
Affirmed.
View the decision at the National Indian Law Library website.

In re J.S. March 25, 2014, (Montana)

Synopsis provided by Westlaw: Department of Public Health and Human Services filed petition for legal guardianship, seeking to award guardianship of Indian child, who had been adjudicated a youth in need of care, to foster parents. The District Court, 20th Judicial District, Lake County, Deborah Kim Christopher, J., granted petition. Child’s father appealed.

Holdings provided by Westlaw: The Supreme Court, Jim Rice, J., held that:
(1) state’s failure to provide notice that was required by Indian Child Welfare Act (ICWA) to father and father’s tribe at outset of proceedings did not warrant overturning guardianship order;
(2) ICWA’s provision requiring state to make active efforts to provide remedial services and rehabilitative programs designed to prevent breakup of Indian family did not provide basis to overturn award of guardianship; and
(3) for purposes of ICWA’s provision governing foster care placement and requiring expert testimony regarding continued custody, there was no custody to “continue.”  Affirmed.
View the decision at the National Indian Law Library website.

Veronica’s Birth Mom Drops Challenge to Indian Child Welfare Act

Baby Veronica’s birth mother has filed a voluntary dismissal of a federal lawsuit against the Cherokee Nation and the U.S. government, which requested that parts of the Indian Child Welfare Act be declared unconstitutional, attorneys in the case announced Tuesday.

Read the full article at the Tulsa World website and related articles at Indian Country Today Media Network,  Tulsa’s Channel 8 website, Oklahoma’s News On Six website and Charleston’s ABC News 4 website.

State Judges Respond To Federal Order (SD)

Four judges in Rapid City say a federal judge went too far in requiring them to sign orders to produce transcripts. Their response, filed this weekend in federal court in Rapid City, is the most recent action in an ongoing lawsuit claiming violations of the Indian Child Welfare Act and the 14th Amendment in Pennington County.

Read the full article at the South Dakota Public Broadcasting website.

Circuit Judges Accused of Ignoring Federal Judge’s Order in Suit Over Native Children Custody Hearings

A federal judge wants to know why some South Dakota state judges are refusing to turn over transcripts in Indian Child Welfare Act cases.

As part of a lawsuit filed by the Oglala Sioux Tribe and the Rosebud Sioux Tribe, the state agreed to provide the transcripts. The transcripts are needed to determine whether Indian parents and guardians are being afforded due process in ICWA hearings.

Five circuit judges, however, have refused to sign an order to release the information. So U.S. District Court Judge Jeffrey Viken ordered them to explain their stance by March 28.

See related articles at Indianz.com  and the Rapid City Journal website.

Human Rights to Culture, Family, and Self-Determination: The Case of Adoptive Couple v. Baby Girl

Kristen Carpenter and Lorie Graham have contributed a chapter in the forthcoming  Indigenous Rights In International Law (Kirchner and Policastrin, Eds.).  It looks at the international human rights issues raised by the Supreme court’s decision in Adoptive Couple v. Baby Girl.

Abstract: The well-being of indigenous children is a subject of major concern for indigenous peoples and human rights advocates alike. In 2013, the U.S. Supreme Court decided in Adoptive Couple v. Baby Girl that the Indian Child Welfare Act did not prevent the adoption of a Cherokee child by a non-Indian couple. This occurred over the objections of her Cherokee biological father, extended family, and Tribal Nation. After the decision, Baby Girl’s father and the adoptive couple contested the matter in a number of proceedings, none of which considered the child’s best interests as an Indian child. The tribally-appointed attorney for Baby Girl, as well as the National Indian Child Welfare Association and National Congress for American Indians, began examining additional venues for advocacy. Believing that the human rights of Baby Girl, much like those of other similarly situated indigenous children, were being violated in contravention of the United Nations Declaration on Indigenous Peoples Rights, and other instruments of international law, they asked us to bring the matter to the attention of the United Nations Special Rapporteur for Indigenous Peoples Rights (“UNSR”). We prepared a “statement of information” to alert the UNSR of the human rights violations occurring in the case. With the permission of the attorneys and organizations involved, this chapter introduces the Baby Girl case, contextualizes the claims in international human rights law, and then reproduces the statement of information and portions of the UNSR’s subsequent public statement. It concludes with an update on the Baby Girl case and broader discussion about the potential for using international law and legal forums to protect the human rights of indigenous children.

Download the full article from the Social Science Research Network website.

Federal Judge Rules Lawsuit over Treatment of South Dakota Indian Parents and Tribes Can Move Forward

A federal court has ruled that a lawsuit charging state and local officials with violating the rights of Indian parents and tribes in state child custody proceedings can go to trial.

The American Civil Liberties Union filed the lawsuit in March 2013 along with the ACLU of South Dakota and Dana Hanna of the Hanna Law Office in Rapid City. The lawsuit claims that Indian children are being removed from their homes in hearings that last no more than a few minutes, in which parents fail to receive a copy of the petition against them or have a chance to present evidence.

Learn more about the suit at the ACLU website. See case information on the National Indian Law Library website under Oglala Sioux Tribe v. Van Hunnik. 

In re Jayden D. and Dayten J., January 14, 2014, (Nebraska)

Excerpt from the opinion: “Yolanda W., formerly known as Yolanda O., appeals from the decision of the separate juvenile court of Lancaster County, which denied her motion to transfer the termination of parental rights proceeding in this juvenile case to tribal court. Because we find that the State failed to establish good cause to deny the transfer, we conclude that the juvenile court abused its discretion in denying the motion to transfer.” View the decision at the National Indian Law Library website.

State v. B.B. December 19, 2013, (North Dakota)

Synopsis provided by Westlaw: “After tribal court awarded custody of Native American child to his Native American maternal grandmother, State brought action against child’s non-Indian father, seeking an adjudication of paternity, an award of future child support, and an order requiring father to reimburse State for public assistance provided to child’s grandmother. The District Court, Sioux County, South Central Judicial District, Sonna M. Anderson, J., entered judgment establishing paternity and ordering father to reimburse State for past support paid on behalf of child and to pay future child support to grandmother. Father appealed.” View the decision at the National Indian Law Library website.

Lawsuit Against California Districts Allege Abuse of Native Students

[T]wo federal lawsuits [were] filed December 18 by the American Civil Liberties Union of Northern California against two Humboldt County School Districts—Eureka City and Loleta Union—that accuse school officials of perpetuating systemic physical, emotional and sexual abuse of Native American and African-American students.

…

“This lawsuit was really a last resort,” Nelson said. “It’s been striking that so many parents we’ve talked to have been complaining for years with no results. They’re tired of being stonewalled.”
The Wiyot Tribe of the Table Bluff Rancheria, who are the complainant in the lawsuit against the Loleta schools, had previously sent letters to the district about the harassment and inequitable treatment of Native American students, but saw no effective change in policy, Nelson said.

Read the full article at the Indian Country Today Media Network website.

Dana Hanna: Courts Continue to Violate ICWA in South Dakota (Native Sun News)

Earlier this year, the Oglala and Rosebud Sioux Tribes and three Indian mothers filed a lawsuit in federal court in Rapid City on behalf of all parents of minor Indian children in Pennington County. That lawsuit, Oglala Sioux Tribe v. Van Hunnik, charges that the South Dakota Department of Social Services (DSS), the Pennington County State’s Attorney’s Office, and the presiding judge and other judges in the Seventh Judicial Circuit routinely violate the constitutional and ICWA rights of Indian parents in child abuse and neglect cases. In a nutshell, the Indian plaintiffs charge that state court judges, assisted by DSS and state prosecutors, routinely order Indian children into long term foster care placements, based on allegations of neglect or abuse, without giving their parents any kind of fair and meaningful hearing. The Indian plaintiffs are seeking an order from the United States District Court that would prohibit state court judges, DSS and the State’s Attorney’s office from placing Indian children in foster homes unless they first give Indian children, parents and Tribes the fair hearing that is their right under ICWA.

Read more at the Indianz.Com  website.

Federal Court Rules on Jurisdiction relating to the Indian Child Welfare Act

In Jones v. Lummi, a federal judge in the state of Washington ruled on an issue relating to tribal jurisdiction.
Here is some text from his 10/22/13 opinion: “More than 20 days have now passed since the court issued its September 30, 2013, order, and neither Mr. Jones nor Defendants have filed a timely response to the court’s order to show cause. Because neither party has responded or challenged the analysis contained within the court’s September 30, 2013, order, the court concludes, consistent with that order, that Lummi Tribal Court has jurisdiction to issue the domestic violence protection order at issue that placed the custody of M.J. temporarily with her mother, Jackie Rose Jones, under the VAWA. Accordingly, the court enters summary judgment in favor of Defendants and dismisses this action in its entirety.”

Read more about this case at the Turtle Talk Blog.

Chloe O. v. State, Dep’t of Health & Social Services, Office of Children’s Services, September 20, 2013 (Alaska)

Synopsis provided by Westlaw: “The Office of Children’s Services (OCS) filed a petition to terminate mother’s parental rights to child. The Superior Court, Third Judicial District, Anchorage, Peter A. Michalski, J., terminated parental rights. Mother appealed. The Supreme Court remanded. On remand the Superior Court found, by clear and convincing evidence, that OCS made active efforts to reunify mother and child, and affirmed order terminating parental rights. Mother appealed.”  View the decision at the National Indian Law Library website.

Thompson v. Fairfax County Department of Family Services, September 10, 2013 (Virginia)

Synopsis provided by Westlaw: “County Department of Family Services filed petition to terminate parental rights of both parents of Indian child. The Circuit Court, Fairfax County, Randy I. Bellows, J., held that the guardian ad litem and foster parents had not established good cause to retain jurisdiction and ordered the case transferred to tribal court, but granted a stay pending appeal. Guardian ad litem and foster parents appealed, and parents appealed order granting stay.” Read the case at the National Indian Law Library website.

In re D.N. August 14, 2013 (California)

Here is text from the opinion: R.N. (mother) and E.T. (father) appeal from the order terminating their parental rights to daughters D.N. and A.T. The parents argue there is a lack of compliance with the notice requirements of the Indian Child Welfare Act, 25 U.S.C. section 1901 et seq. (ICWA). We affirm. Substantial evidence supports the juvenile court’s determination that notice was proper and ICWA did not apply to this case. In the published portion of this opinion, we conclude, among other things, that this court cannot override the Choctaw Nation’s determination that the children are not eligible for membership. Read the court opinion on the National Indian Law Library’s website.

Christopher C. v. State Department of Health & Social Services Office of Children’s Services, June 28, 2013 (Alaska)

The Alaska Office of Children’s Services (OCS) was successful in terminating parental rights for the parents of four Indian children. Despite attempts by the parents, and active efforts to prevent the breakup of the family by OCS, evidence supported finding that the children would be endangered and would likely suffer emotional and physical harm if they remained with the parents. Read the case at the National Indian Law Library.

Challenge to child’s adoption fails (Supreme Court, “Baby Veronica”)

The Supreme Court, over the dissents of two Justices, cleared the way Friday afternoon for a South Carolina couple to adopt the child known publicly as “Baby Veronica.”  In a three-sentence order, the full Court turned aside — without an explanation — the plea by the birth father to delay a state court ruling permitting the transfer of the child from him; he is a member of the Cherokee Nation.

The order is available from the link above. Read more at SCOTUS blog.

NARF Files Civil Rights Case Filed on Behalf of Baby Veronica

Read the press release.
Read the complaint filed in the U.S. District Court in South Carolina.

From the press release…The litigation was filed on behalf of Veronica, by Angel Smith, an attorney appointed as counsel for the child by the courts of the Cherokee Nation, in U.S. District Court in South Carolina, and asks the Court to determine whether Veronica has a constitutionally protected right to a meaningful hearing in the state courts to determine what is in her best interests. Furthermore, the litigation asserts that Veronica, as an “Indian child” under the Indian Child Welfare Act, has a federally protected right to have the state courts fully consider and appropriately weigh her best interests as an Indian child. Daniel E. Martin, Jr., the judge for the family court system of South Carolina, is named as the defendant in the suit.

Baby Veronica’s Birth Mother Sues to Declare ICWA Provisions Unconstitutional

From the complaint:
Image of case complaint first page

ICWA tells a single unmarried woman who wishes to choose adoptive parents for her unborn child—a choice that would be respected under her State’s laws—that she must either terminate her pregnancy, raise the child herself, or surrender her child to a Tribe that is a total stranger to her and to the unborn child. Even if Congress is empowered to enact legislation respecting child custody matters involving children whose parents are  domiciled on tribal lands, Congress may not override a woman’s deeply  personal decision to place her child with a loving and fit adoptive family,  and impose special disabilities on that child, in the name of tribal sovereignty.

See the complaint at the Turtle Talk website.

Tribal Leaders and Organizations Denounce the South Carolina Supreme Court’s Decision and Announce Pursuit of Civil Rights Lawsuit for “Baby Veronica”

Native American Rights Fund, National Congress of American Indians, and National Indian Child Welfare Association announce pursuit of civil rights lawsuit for Baby Veronica.

Three of the nation’s leading tribal organizations announced today they are in the early stages of pursuing litigation to protect the civil rights of Veronica Brown, acitizen of the Cherokee Nation who has been denied due process in the South Carolina courts.

Read more at the NARF news blog.

Leonhard: ‘Human and Constitutional Rights’ Violated in Baby Veronica Case

Brent Leonhard, an attorney for the Confederated Tribes of the Umatilla Indian Reservation in Oregon, was asked by Indian Country Today Media Network to weigh in on the controversy over the South Carolina Supreme Court ruling to remove three-year-old Veronica Brown from her biological father and give her to an adoptive couple.

Read more at the Indian Country Today website.

 

Child custody case tests jurisdiction of Miccosukee, Miami-Dade courts (Miami Herald)

A South Florida custody case pivots on the Uniform Child Custody Juridiction and Enforcement Act, which establishes jurisdiction between states and tribes.

Under the child custody enforcement act, foreign countries — and under federal law, the Miccosukee reservation off Tamiami trail is a sovereign nation — are treated the same as other states when it comes to custody battles between parents.

The key provision of the law: the court with jurisdiction is the one from where the children resided “within 6 months” of the “commencement of the proceedings” for child custody.

A September 6 hearing will determine which court has jurisdiction.

Read more at the Miami Herald website.

 

Latest News Coverage of Recent Supreme Court Decision in “Adoptive Couple v. Baby Girl”

Supreme Court Thwarts ICWA Intent in Baby Veronica Case (Indian Country Today) 6/25/2013

US Supreme Court Case Reignites Discussion Over Welfare of American Indian Children (Washington Post) 6/26/2013

Happy Ruling for Adoptive Couple, Uncertainty for Baby Girl (NPR) 6/26/2013

The Court Got Baby Veronica Wrong (Slate.com) 6/26/2013

Ruling on Adopted Indian Kids Threatens Tribes, Some Say (USA Today) 6/26/2013

Maine AG Dismayed Over High Court’s Decision in Indian Custody Case (Bangor Daily News) 6/28/2013

 

News Stories on the “Adoptive Couple v. Baby Girl” Decision from the U.S. Supreme Court

A split decision on ‘Baby Veronica’ court battle (Tulsa World) 6/26/13.

Supreme Court Strikes a Hard Blow to Tribal Sovereignty in Adoption Case (Common Dreams) 6/26/13.

Supreme Court says Native American child doesn’t have to be given to biological father (Washington Post) 6/25/13.

Justices Rule in Favor of Adoption of Indian Child (NY Times) 6/25/13.

U.S. Supreme Court issues decision in Adoptive Couple v. Baby Girl (NARF Blog) 6/25/13.

Court: Child isn’t required to go to Indian father. (Anchorage Daily News) 6/25/13.

Cherokee Chief: Baby girl should remain with biological father (Indianz.com) 6/25/13.

Supreme Court Rules 5-4 In Favor of Capobiancos in Baby Veronica Case (Indian Country Today) 6/25/13.

Collection of Reactions on Baby Girl Case (Turtle Talk Blog) 6/25/13.

 
Read more here: http://www.adn.com/2013/06/25/2952473/court-child-isnt-required-to-go.html#storylink=cpy

 

U.S. Supreme Court Reverses and Remands Adoptive Couple v. Baby Girl to S.C. Supreme Court

Find the opinion here. Commentary will be published soon on the blog.

The syllabus from the ruling:
“The Indian Child Welfare Act of 1978 (ICWA), which establishes federal standards for state-court child custody proceedings involving Indian children, was enacted to address “the consequences . . . of abusive child welfare practices that [separated] Indian children from their families and tribes through adoption or foster care placement, usually in non-Indian homes,” Mississippi Band of Choctaw Indians v. Holyfield, 490 U. S. 30, 32. As relevant here, the ICWA bars involuntary termination of a parent’s rights in the absence of a heightened showing that serious harm to the Indian child is likely to result from the parent’s “continued custody” of the child, 25 U. S. C. §1912(f);conditions involuntary termination of parental rights with respect toan Indian child on a showing that remedial efforts have been made toprevent the “breakup of the Indian family,” §1912(d); and provides placement preferences for the adoption of Indian children to membersof the child’s extended family, other members of the Indian child’s tribe, and other Indian families, §1915(a). While Birth Mother was pregnant with Biological Father’s child, their relationship ended and Biological Father (a member of the Cherokee Nation) agreed to relinquish his parental rights. Birth Mother put Baby Girl up for adoption through a private adoptionagency and selected Adoptive Couple, non-Indians living in South Carolina. For the duration of the pregnancy and the first four months after Baby Girl’s birth, Biological Father provided no financial assistance to Birth Mother or Baby Girl. About four months after Baby Girl’s birth, Adoptive Couple served Biological Father with notice of the pending adoption. In the adoption proceedings, Biological Father sought custody and stated that he did not consent to the adoption.
Following a trial, which took place when Baby Girl was two years old, the South Carolina Family Court denied Adoptive Couple’sadoption petition and awarded custody to Biological Father. At the age of 27 months, Baby Girl was handed over to Biological Father, whom she had never met. The State Supreme Court affirmed, concluding that the ICWA applied because the child custody proceeding related to an Indian child; that Biological Father was a “parent” under the ICWA; that §§1912(d) and (f) barred the termination of his parental rights; and that had his rights been terminated, §1915(a)’sadoption-placement preferences would have applied.
Held:
1. Assuming for the sake of argument that Biological Father is a“parent” under the ICWA, neither §1912(f) nor §1912(d) bars the termination of his parental rights. Pp. 6–14.
(a) Section 1912(f) conditions the involuntary termination of parental
rights on a heightened showing regarding the merits of the parent’s “continued custody of the child.” The adjective “continued” plainly refers to a pre-existing state under ordinary dictionary definitions.
The phrase “continued custody” thus refers to custody that a parent already has (or at least had at some point in the past). As a result, §1912(f) does not apply where the Indian parent never had custody of the Indian child. This reading comports with the statutory text, which demonstrates that the ICWA was designed primarily to counteract the unwarranted removal of Indian children from Indian families. See §1901(4). But the ICWA’s primary goal is not implicated
when an Indian child’s adoption is voluntarily and lawfully initiated
by a non-Indian parent with sole custodial rights. Nonbinding guidelines issued by the Bureau of Indian Affairs (BIA) demonstrate that the BIA envisioned that §1912(f)’s standard would apply only to termination of a custodial parent’s rights. Under this reading, Biological
Father should not have been able to invoke §1912(f) in this case because he had never had legal or physical custody of Baby Girl as of the time of the adoption proceedings. Pp. 7–11. (b) Section §1912(d) conditions an involuntary termination of parental rights with respect to an Indian child on a showing “that active efforts have been made to provide remedial services . . . designed to prevent the breakup of the Indian family and that these efforts have proved unsuccessful.” Consistent with this text, §1912(d) applies only when an Indian family’s “breakup” would be precipitated by terminating parental rights. The term “breakup” refers in this context to“[t]he discontinuance of a relationship,” American Heritage Dictionary 235 (3d ed. 1992), or “an ending as an effective entity,” Webster’s Third New International Dictionary 273 (1961). But when an Indian parent abandons an Indian child prior to birth and that child hasnever been in the Indian parent’s legal or physical custody, there is Cite as: 570 U. S. ____ (2013) no “relationship” to be “discontinu[ed]” and no “effective entity” to be“end[ed]” by terminating the Indian parent’s rights. In such a situation,
the “breakup of the Indian family” has long since occurred, and§1912(d) is inapplicable. This interpretation is consistent with the explicit congressional purpose of setting certain “standards for the removal of Indian children from their families,” §1902, and with BIA Guidelines. Section 1912(d)’s proximity to §§1912(e) and (f), which both condition the outcome of proceedings on the merits of an Indian child’s “continued custody” with his parent, strongly suggests that the phrase “breakup of the Indian family” should be read in harmony with the “continued custody” requirement. Pp. 11–14.
2. Section 1915(a)’s adoption-placement preferences are inapplicable in cases where no alternative party has formally sought to adopt the child. No party other than Adoptive Couple sought to adopt Baby Girl in the Family Court or the South Carolina Supreme Court. Biological Father is not covered by §1915(a) because he did not seek toadopt Baby Girl; instead, he argued that his parental rights should not be terminated in the first place. And custody was never sought by Baby Girl’s paternal grandparents, other members of the Cherokee Nation, or other Indian families. Pp. 14–16. 398 S. C. 625, 731 S. E. 2d 550, reversed and remanded.

ALITO, J., delivered the opinion of the Court, in which ROBERTS, C. J., and KENNEDY, THOMAS, and BREYER, JJ., joined. THOMAS, J., and BREYER, J., filed concurring opinions. SCALIA, J., filed a dissenting opinion. SOTOMAYOR, J., filed a dissenting opinion, in which GINSBURG and KAGAN, JJ., joined, and in which SCALIA, J., joined in part.”

In the Matter of D.S.B. and D.S.B., Supreme Court of Montana. April 30, 2013.

On April 30, 2013, the Montana Supreme Court affirmed the decision of the fourth district court to terminate parental rights.  Issues considered included:

  • Whether the District Court properly concluded treatment plans were appropriate.
  • Whether the State presented sufficient evidence to terminate parental rights under the ICWA.
  • Whether the state made “active efforts” to prevent the breakup of an Indian family as required by the ICWA.
  • Whether the record contains sufficient evidence that the children would likely suffer severe emotional or physical harm if parental custody was maintained.

See the full opinion at the National Indian Law Library website.

Colorado Court of Appeals Rules Against Transfer of Case to Tribal Court

On May 9, the Colorado Court of Appeals held that substantial evidence supported juvenile court’s findings of good cause to deny transfer of jurisdiction to tribal court and supported the juvenile court’s holding that the Department of Health and Human Services met the “active efforts” standard required by the Indian Child Welfare Act. Read more about the case at the National Indian Law Library website.

Lakota to file UN Genocide Charges Against US

In April, a grassroots movement led by Lakota grandmothers toured the country to build support for a formal complaint of genocide against the United States government and its constituent states. Though temporarily overturned, the recent conviction of Efrain Rios Montt for genocide against indigenous Guatemalans should give US officials, particularly members of the Supreme Court, pause before dismissing the UN petition as a feeble symbolic gesture.
Read more at the RINF website. 

April 23, 2013 Petition for Cert Filed in “Nebraska v. Elise M. ” (12-1278)

Supreme Court BuildingOn April 23, 2013, petition for certiorari was filed with the Supreme Court for Nebraska v. Elise M., a Nebraska case that looks at:

(1) Whether ICWA prohibits a state court from considering the ’best interests of the child”  when determining whether “good cause” exists to deny the transfer of an ongoing child welfare case.
(2) Whether ICWA requires a state court to treat a motion to terminate parental rights as a “new proceeding” for purposes of determining whether “good cause” exists to deny the transfer of an ongoing child welfare case

Learn more  at the National Indian Law Library Supreme Court Bulletin and the Tribal Supreme Court Project.

Stephens v. Arkansas Dep’t of Human Services; No. CA 12–1096. Court of Appeals of Arkansas, April 17, 2013

On April 17, 2013, the Arkansas state Court of Appeals ruled in the case of a mother contesting the removal of her parental rights.  The court applied the ICWA requirements of proof and an ICWA expert testified at the hearing due to the possible eligibility of the minor for membership in an Indian tribe.  Read more about the case at the National Indian Law Library website.

Due Diligence Radio Program about “Adoptive Couple v. Baby Girl”

On The Voice of Russia, American Edition, radio station, the Due Diligence show interviewed three attorneys about the Adoptive Couple v. Baby Girl case.  Interviews included:

  • Phillip J. McCarthy, who represents the American Academy of Adoption Attorneys and wrote an amicus brief supporting the adoptive couple,
  • Lori Alvino McGill, a constitutional attorney for Latham & Watkins LLP who wrote an amicus brief, and
  • Robert Clinton, the foundation professor of law at Sandra Day O’Connor College of Law at Arizona State University.

Listen to all three interviews at the program’s website.

Supreme Court Transcript Now Available

Cover of Supreme Court Transcript

A transcript for today’s oral argument in Adoptive Parents v. Baby Girl can be found here.  Audio recordings of oral arguments heard by the U.S. Supreme Court are made available to the public at the end of each argument week. If you are interested in learning more about the case or reading briefs that were filed by both sides, click here.

Politico Op-Ed from Echohawk, Pata, and Cross about “Adoptive Parents v. Baby Girl”

John Echohawk, Executive Director of the Native American Rights Fund; Jacqueline Pata, Executive Director of the National Congress of American Indians; and Terry Cross, Executive Director of the National Indian Child Welfare Association, have published an op-ed in Politico on Adoptive Parents v. Baby Girl, which was heard by the U.S. Supreme Court today.  To read the op-ed, click here.

April 15, 2013: Teleconference on ICWA Supreme Court Case

Supreme Court BuildingThe Tribal Supreme Court Project – the Native American Rights Fund (NARF) and the National Congress of American Indians (NCAI) – along with the National Indian Child Welfare Association (NICWA), will host a national teleconference and briefing to review the arguments before the U.S. Supreme Court in Adoptive Couple v. Baby Girl.

During the call, participants will hear from a variety of individuals, legal experts, and leaders regarding the case before the Supreme Court on Tuesday, April 16, 2013.

 To call in to this operated assisted call dial (877) 856-2376

Click here to RSVP in advance.

 Schedule of Call

  • Introductory Statements by Tribal Supreme Court Project – NARF & NCAI – and NICWA
  • Statement by Chief Bill John Baker of the Cherokee Nation
  • Statements by John Nichols & Shannon Jones – Legal Representation for Brown Family
  • Statements by Amicus Briefs in Support
    • Casey Family Programs Brief – Martin Guggenheim
    • Adult Adoptees Brief – Diane Tells His Name
    • History of ICWA – Terry Cross, National Indian Child Welfare Association
  • Question & Answer Session for Media

Casey Family Programs Press Release on “Adoptive Couple v. Baby Girl”

Casey Family Programs logoCasey Family Programs releases a press release on Adoptive Couple v. Baby Girl case before the U.S. Supreme Court:

SEATTLE – Casey Family Programs with the support of 17 other national child welfare organizations has filed an amicus brief with the U.S. Supreme Court in support of the Indian Child Welfare Act (ICWA).  The case of Adoptive Couple v. Baby Girl, now before the Supreme Court, calls into question the constitutionality of the Indian Child Welfare Act.

The coalition of philanthropic and nonprofit organizations represents decades of frontline experience working to improve the lives of vulnerable children and their families. The group supports ICWA because it has helped establish the values and practices that have become central to effective child welfare practice. In particular, this law reinforces the important role that families and communities play when determining the best interests of children in their care.

See the entire press release.