Wednesday, May 23, 2012

State Lower Courts and Agencies Still Disregarding Indian Child Welfare Act Requirements

In a number of recent cases, state Supreme Courts had to slap down lower court decisions that failed to adequately account for Indian sovereign interests in rendering child custody decisions.  The cases are a reminder that although Congress recognized and mandated respect for those interests in 1979 when it passed the Indian Child Welfare Act, 25 U.S.C. §§ 1901-1963 (ICWA), that recognition has been very slow to penetrate the consciousness of the non-Indian bar and judiciary.

The ICWA recognized the role that child protective agencies have played in furthering the genocide of Indian peoples by separating Indian children from their families and placing them with non-Indian households.  See 25 U.S.C. § 1901(3).  The removal of Indian children from their native territorial and cultural context by Euro-American social workers, as such children had long been removed by other government bureaucrats to attend forced boarding schools, was recognized as one among many examples of paternalism run amok.  And it was recognized that genocidal results were being achieved without the need for conscious prejudice or double standards, because the mainstream culture values imposed in every case by child-protective workers have a disparate impact on indigenous peoples who are economically deprived and whose lifestyles, such as reliance on extended kin networks to supervise children, differ from those common in the mainstream.  

The ICWA sought to deal with this history and continuing impact by giving the Indian sovereign nation itself a stake in child custody proceedings involving native children, requiring notice to the tribe and giving it the opportunity to appear to advocate placement with an Indian family.  Having involved the Indian sovereign itself, the ICWA then requires state courts adjudicating child placement matters to apply an order of preferences favoring Indian placements “in the absence of good cause to the contrary.” 25 U.S.C. § 1915(a)-(b). The preferences favor placement with members of the child’s extended family as a first choice, and generally require preference to placement of Indian children with Indian families. Id. According to the House Report accompanying the ICWA, the purpose of § 1915 is “to protect the rights of the Indian child as an Indian and the rights of the Indian community and tribe in retaining its children in its society.” H. R. Rep. No. 95-1386, at 23 (1978) (hereinafter House Report).  As the Supreme Court  explained in Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30 (1989), the ICWA expresses “a Federal policy that, where possible, an Indian child should remain in the Indian community” and seeks to ensure that “Indian child welfare determinations are not based on a ‘white, middle-class standard which, in many cases, forecloses placement with [an] Indian family.’” 490 U.S. at 37 (quoting House Report at 23-24).   

The ICWA thus exists to protect individual and collective rights that have no place in a traditional "best interest of the child" inquiry.  Yet states have often been resistant to the ICWA preferences, and have often effectively expanded the "good cause to deviate" exception so as to entirely efface the ICWA placement preferences and replace it with a traditional "best interest" inquiry.  Compare, e.g., In re. Bird Head, 331 N.W.2d 785 (Neb. 1983) (child's "best interest" provided "good cause" to deviate); Adoption of M., 832 P.2d 518 (Wash. Ct. App. 1992) (same); Adoption of F.H., 851 P.2d 1361 (Alaska 1993) (same); Interest of A.E., 572 N.W.2d 579 (Iowa 1997) (same); and Interest of C.G.L., 63 S.W.3d 693 (Mo. Ct. App. 2002) (same), with Yavapai-Apache Tribe v. Mejia, 906 S.W.2d 152 (Tex. App. 1995) (“the use of the best interest standard when determining whether good cause exists defeats the very purpose for which the ICWA was enacted, for it allows Anglo cultural biases into the picture.”); Matter of C.H., 997 P.2d 776 (Mont. 2000) (similar); and Matter of S.E.G., 521 N.W.2d 357 (Minn. 1994) (similar); see also Michael J. Dale, State Court Jurisdiction Under the Indian Child Welfare Act and the Unstated Best Interest of the Child Test, 27 Gonz. L. Rev. 353.  The Bureau of Indian Affairs has articulated Guidelines that provide an alternative explication of "good cause" that does not reduce to traditional "best interest" analysis, which many state courts have followed.  Guidelines for State Courts; Indian Child Custody Proceedings, 44 Fed. Reg. 67584-67595, 67594 (1979) (defining “good cause” to include (i) request of the biological parents or of the child if of sufficient age; (ii) extraordinary physical or emotional needs; or (iii) unavailability of suitable families for placement after a diligent search for families meeting the preference criteria).  See Matter of S.E.G., 521 N.W.2d at 363; Matter of C.H., 997 P.2d at 782.

In cases decided within the last week, the Kansas and Michigan Supreme Courts intervened to protect Indian sovereign rights to participate in the ICWA placement process, whereas the Alaska Supreme Court, over a strong dissent, placed its imprimatur on the state's decision to place an Indian child with an unrelated non-Indian family rather than with the child's own Indian grandmother, notwithstanding that the state improperly failed to provide her notice of numerous placement hearings.

On May 4, 2012, the Kansas Supreme Court in In re T.S.W. addressed a situation where a non-Indian mother sought to select a non-Indian family to adopt her child, whose father was a Cherokee Nation member.  The Cherokee Nation intervened and sought placement with an Indian family.  The adoption agency and lower court simply ignored the ICWA.  The agency offered non-Indian family options to the mother, ignoring Indian family options and Indian relatives proposed by the Cherokee Nation on the ground that the mother had expressed a preference for a white family and that none of the proposed families could afford the agency's $27,000 fee.  The lower court held that the mother's preference alone provided "good cause" to deviate from the ICWA priorities.  The Kansas Supreme Court reversed and remanded, requiring that the ICWA requirements be applied. 

In a case raising similar issues, the Michigan Supreme Court in In re C.I. Morris ruled on May 4, 2012, that a parent of an Indian child cannot waive the Indian sovereign's separate and independent ICWA rights, such as the right to notice of the intended adoption.  Recognizing the importance of the interests protected by the tribal notice requirement, the court required notice broadly where any facts exist that might suggest the child is eligible for membership in an Indian tribe.  The court reversed two lower courts' terminations of parental rights that occurred without tribal notice and remanded for determinations whether notice was required based on evidence of the children's Indian heritage.

The Kansas and Michigan courts appropriately and laudably stepped in to protect Indian sovereign interests as mandated by federal law. One can only hope that placement agencies and workers in those states will take the collective Indian rights guarantied by the ICWA more seriously in the future. 
Meanwhile, on May 8, 2012, the Alaska Supreme Court in Paula E. v. Alaska addressed a situation where, as the court acknowledged, the state agency blatantly ignored its obligation to provide notice of child custody proceedings to the Indian child's grandmother.  Nevertheless, calling this a "close case," the majority of the court upheld lower court decisions that approved the child's permanent placement with a non-Indian family.  The state agency in this case apparently paid greater heed to Indian interests than those in the Kansas and Michigan cases, as the agency contacted the child's tribe and considered proffered placement options, yet ultimately rejected them because they would involve moving the child out of state.  The majority affirmed a finding that good cause existed to deviate from the ICWA's placement preferences because the best interest of the child required a non-Indian placement.  A strong dissent by Chief Justice Carpenti pointed out that the strength of the interest in maintaining the child's non-Indian placement was largely the result of the agency's violation of notice requirements, which resulted in the child's being kept in a non-Indian foster home for over a year all the while bonding with the non-Indian foster parents, and allowed the creation of an unrebutted record of the grandmother's unfitness.

The court in Paula E. repeatedly notes that the agency conducted a search for Indian relatives in consultation with the tribe but ultimately rejected an Indian placement because it would require moving the child to Montana, which would not be in the "best interest" of the child.  This finding was not on appeal, as the tribe apparently did not contest it and the grandmother, of course, sought placement with herself.  If there is anything Congress recognized when it passed the ICWA it was that the routine application of a traditional social-work concept of "best interest" is and has been effectively a tool of Native genocide.  Matter of Quinn, 881 P.2d 795, 803 (Ore. 1994) (Fadeley, J., dissenting) (absent the consent of the tribe, “an adoption is an act of genocide, an elimination of the tribe’s future.”). However "close" and perhaps defensible on technical grounds to which the court repeatedly gestures (rules of evidence, standards of review, burdens of proof), one can only hope that in an appropriate case the Alaska Supreme Court would find cause to question a state agency's apparently cavalier rejection of an available Indian placement option based on supposed "best interests."  

No comments:

Post a Comment