ICWA/Child Protection

ICWA/Child Protection

In Re C.R.H., 29 P.3d 849 (Alaska, 2001)
State v. Native Village of Tanana, 249 P.3d 734 (Alaska 2011)
Simmonds v. Parks
Adoptive Couple v. Baby Girl, 133 S.Ct. 2552 (2013)
Native Village of Tununak v. State of Alaska, Office of Children's Services, 303 P.3d 431 (Alaska 2013)

In Re C.R.H., 29 P.3d 849 (Alaska, 2001) 
Full text of the decision can be accessed here.

The State took custody of C.R.H. when she was three days old.  Her parents were from two different Tribes.  The Tribes agreed that Nikolai would be the Tribe that would intervene as C.R.H.’s Tribe.  C.R.H. was placed with a relative in Nikolai.  Nikolai asked the State court to transfer the case into Nikolai’s tribal court.  The court denied the request because the Alaska Supreme Court had previously ruled in the case Native Village of Nenana v. State that ICWA cases could not be transferred into tribal court unless the Tribe had petitioned to reassume jurisdiction under ICWA Section 1918 (which hardly any Tribes in Alaska have done).  The Tribe appealed to the Alaska Supreme Court, and during the appeal the State asked the Court to overturn the Nenana case to allow for cases to be transferred to Tribal court without having to petition the Secretary of Interior to reassume jurisdiction.

The Supreme Court overruled the Nenana case and held that under ICWA’s section 1911, an ICWA case may be transferred into Tribal court even if the Tribe had never petitioned the Secretary of the Interior.  The Court acknowledged that the request to transfer into Tribal Court may be denied, but the party opposing the transfer bears the burden to show that good cause exists to deny the transfer. 

The Supreme Court recognized the importance of respecting Tribal courts and quoted John v. Baker saying, “Superior courts should strive to respect the cultural differences that influence tribal jurisprudence, as well as to recognize the practical limits experienced by smaller court systems.”  This case confirmed that Tribes have the authority to accept ICWA cases transferred from state court. 

State v. Native Village of Tanana, 249 P. 3d 734 (2011):  
Full text of decision can be accessed here

This case recognizes tribal jurisdiction authority to decide Native children’s custody cases.  In 2011 the Alaska Supreme Court ruled in favor of the plaintiff tribes in the Tanana case.  The court found that the 2004 Renkes opinion (which stated that no Alaska tribes could initiate ICWA child custody proceedings unless the tribe petitioned the Secretary of the Interior first) was wrong, and that AK tribes retained inherent sovereign jurisdiction to initiate child custody proceedings. 

The Court said that 1) Alaska Tribes had not been divested of their jurisdiction to decide children’s custody cases, and 2) Alaska Tribes have concurrent jurisdiction with the State.  The Court further explained that decisions of tribal courts in these cases were due full faith and credit under ICWA—meaning the state courts have to recognize tribal court decisions.

Parks v. Simmonds, 329 P.3d 995 (2014)
Full text of the decision can be accessed here.

After numerous hearings, the Minto Tribal Court terminated the parental rights of Mr. Parks and Ms. Stearman and granted permanent custody of a child to the Simmonds.  Mr. Parks sued in state court, claiming, among other things, that the tribal court has no jurisdiction over him and that his right to due process was violated when the Minto Court--in accordance with its traditional practices and procedures--did not permit Mr. Parks' attorney to present oral argument.  Based on these arguments, Mr. Parks claims that the tribal court termination order is not entitled to full faith and credit under ICWA.  The Simmonds argued that the termination order is entitled to full faith and credit and they moved to dismiss the state court action, but this motion was denied by the state court in November 2010.  The state court reasoned that failure to allow an attorney to present oral argument did violate Mr. Parks' due process rights, and that he could have been successful in arguing that Tribes lack jurisdiction to terminate parental rights of non-member parents
 
The Alaska Supreme Court disagreed.  It applied the "Tribal Court Exhaustion Doctrine" to Mr. Parks, and decided that the state court shouldn't consider his appeals if he failed to even try to follow the tribal court appeal process. The Court thought it plausible for the tribal court to have jurisdiction to terminate parental rights considering its vital interest in the tribal child's safety and the fair proceedings the court used.
Adoptive Couple v. Baby Girl, 133 S.Ct. 2552 (2013): 
Full text of decision available here.

Baby Veronica was born in Oklahoma to a non-Native mother and Native American father.  The parents had split up during the pregnancy, and without the father’s knowledge the mother found non-Native adoptive parents through an agency.  The adoptive parents were present at Veronica’s birth, and took the baby home with them to South Carolina.  When Veronica was four months old, the adoptive parents filed an adoption case in South Carolina.  The father contested the adoption and asked for custody of Veronica.  Two years later—due to court delays—the state judge held that ICWA (Indian Child Welfare Act) prohibited the termination of the father’s rights and awarded the father custody of Veronica.  The adoptive couple appealed all the way to the U.S. Supreme Court.  The Supreme Court decided that the three following sections of ICWA did not apply to this private adoption case:

Section 1915(a):  In private adoption cases—not Child in Need of Aid (CINA) cases—ICWA’s placement preferences do not apply if there are not competing petitions to adopt a Native child.  In Veronica’s case, since only the adoptive parents asked to adopt, that placement was the only option the Court could consider, so ICWA’s placement preferences did not apply.

Section 1912(d):
Normally, “active efforts” must be provided to prevent the breakup of a Native family, before the court can terminate a parent’s rights.  The Court decided that there is an exception to this rule for a father who has abandoned his child before birth and has never had physical or legal custody of his child at any time.

Section 1912(f):
Before a court can terminate the parental rights of a Native parent, it must find that the “continued custody of the child by the parent . . . is likely to result in serious emotional or physical damage to the child.”  The Supreme Court held that this section does not apply in situations where a father has never had physical or legal custody of his child.

Bottom line: It is unclear what impact this case may have on practice here in Alaska.  For more information on the possible implications, click here.

Native Village of Tununak v. State of Alaska, Office of Children's Services,  303 P.3d 431 (Alaska, 2013): 
Full text of decision can be accessed here

In this state court Child In Need of Aid (CINA) case, the Office of Children's Services (OCS) removed a Native child from her family because of concerns about her mother’s mental health and substance abuse issues. Although the child’s maternal grandmother (a first-tier preference placement under ICWA, which was designed to stop the removal of Native children from their communities and families) requested placement of the child in Tununak, OCS placed the child in a non-Native, non-relative foster home in Anchorage.  The Native Village of Tununak intervened in the case, requested that OCS look into several ICWA-compliant placements, and specifically requested that the child be placed with her maternal grandmother.  OCS refused. 

Over the next three years, the child’s maternal grandmother and Tribe repeatedly requested that the child be placed with her grandmother in the village.  OCS generally ignored these requests, or gave reasons to reject the grandmother as a placement such as: her adult son living in the home had a DUI conviction, the child’s bond with her mother would be best maintained if she stayed in Anchorage, or the grandmother’s home had unresolved safety concerns, like excessive clutter.

After the child’s parents’ rights were terminated, the Tribe requested a placement review to challenge OCS’s refusal to place the child with her maternal grandmother.  At the trial, the Tribe argued that placing the child in a non-Native, non-relative home, instead of with her grandmother, violated ICWA.  OCS argued that there was good cause to deviate from ICWA’s placement preferences for a number of reasons, including that the child had bonded with her foster family.  The trial court ruled that there was good cause to deviate from ICWA’s placement preferences because the grandmother, despite being fit and healthy, was too old to care for a young child, and the child would be traumatized by a move. The Tribe appealed.

The Alaska Supreme Court reversed, and remanded (sent back) the case to the trial court for further proceedings.  The Court held that good cause to deviate from ICWA’s placement preferences must be shown by clear and convincing evidence, and that the trial court had erred by applying the lower preponderance of the evidence standard. The Court also clarified that when determining if good cause exists to deviate from ICWA’s placement preferences, a trial court must first evaluate whether there are any suitable ICWA-compliant placements available.  In determining whether an ICWA-compliant placement is suitable, the trial court must apply the prevailing values of the Native community, not “white, middle-class standards.”  The Court pointed out that the trial court had concluded that the grandmother was too old to care for the child despite evidence that it was common in her community for grandparents to care for young children.

The re-trial in this case is currently on hold.  While this appeal was pending, the foster family that had been caring for the child adopted her, over the Tribe’s objection.  The Tribe has appealed the adoption (click here for more information), but the foster family and OCS are arguing that because the child has been adopted, the placement issue in her CINA case is moot.

Bottom line: When determining good cause to deviate from ICWA’s placement preferences, a court must first examine whether there are any suitable ICWA-compliant placements available (using prevailing values of the Native community).


AlaskaTribes.org