ICWA Placement Preferences: Implications of “Baby Veronica” and Beyond Melony Lockwood, Sydney Tarzwell, Tina Reigh Alaska Legal Services Corp. BIA Providers’ Conference Dec. 5, 2013 Mel introduce ALSC and what we do for Tribes

Outline of Session Placement Preferences Overview Case Law Update Tununak v. State (Tununak I & Tununak II) Adoptive Couple v. Baby Girl (“Baby Veronica”) Table discussion about cases Impact of cases New resource to help with placements ML

Indian Child Welfare Act: Policy § 1902. The Congress hereby declares that it is the policy of this Nation to protect the best interests of Indian children and to promote … the placement of such children in foster or adoptive homes which will reflect the unique values of Indian culture… TR

Placement Preferences: Adoption ICWA § 1915(a) In any adoptive placement of an Indian child under State law, a preference shall be given, in the absence of good cause to the contrary, to a placement with a member of the child's extended family; other members of the Indian child's tribe; other Indian families. TR

Placement Preferences: Foster Care and Pre-Adoptive ICWA § 1915(b) the least restrictive setting which most approximates a family, within reasonable proximity to his or her home, taking into consideration the child’s special needs. TR

Placement Preferences: Foster Care and Pre-Adoptive(cont.) Preference shall be given, in the absence of good cause to the contrary, to a placement with-- a member of the Indian child's extended family; a foster home licensed, approved, or specified by the Indian child's tribe; an Indian foster home licensed or approved by an authorized non-Indian licensing authority; or an institution for children approved by an Indian tribe or operated by an Indian organization which has a program suitable to meet the Indian child's needs. TR: What do these placement preferences tell us: Native children should be with their relatives and if they can’t be with their relatives, they should be in a Native home that is close their own home. Congress said it—is it happening? LOOK AT OCS’ MOST RECENT STATS.

Native Village of Tununak v. State of Alaska 303 P Native Village of Tununak v. State of Alaska 303 P.3d 431 (Alaska 2013) July 2008 4 month-old “Dawn” removed from her mom in Anchorage for mental health and substance abuse issues. Tribe intervened and gave a list of placements. Grandma, “Elise,” who lived in the village was at the top of the list. Tribe met with OCS about placement. September 2008 OCS decided Elise was not an option because a relative in her home had a barrier crime.

Tununak – Timeline (cont.) November 2008 Parties all agreed that keeping Dawn in Anchorage was ok in an effort to reunify mom and Dawn. August 2009 Elise’s relative that caused a barrier crime moved out; Elise told OCS she was still interested in being a placement.

Tununak – Timeline (cont.) October 2009 Tribe asked OCS to do a walk-through of Elise’s home. OCS made recommendations to Elise. Dawn placed with Smiths—adoptive placement. November 2009 At a 6-month conference, OCS noted that Elise is available and interested in permanent placement. November 2010 Court denied OCS’ request to terminate parental rights, because it had not made “active efforts.”

Tununak – Timeline (cont.) September 2011 OCS’ second petition to terminate parental rights was granted. Elise asked to be Dawn’s permanent placement. OCS denied Elise’s request, so she requested a placement review. November 2011 The Smiths filed for adoption (Nov. 3). Placement review hearing held (Nov. 14).

Tununak – Placement Review At the placement review hearing, the judge heard about: Dawn’s need for stability. The long-term damage of being separated from her culture. Elise’s suitability as a placement. Court denied Tribe’s objection to placement with the non-Native family: It was in Dawn’s best interests to stay with the non-Native family because it would be traumatic to move her from “the only family that [Dawn] knows.” Elise not a suitable placement because she was 67 years old. Tribe appealed Placement decision to the Alaska Supreme Court.

Tununak - Adoption Tribe asked that the court hold off on deciding the adoption, pending the appeal of the placement decision. Court went forward with the adoption, but warned the adoptive family that since the placement was being appealed, the adoption could be set aside. Tribe objected to the adoption on ICWA grounds. Court granted the adoption. Tribe appealed the adoption to the Alaska Supreme Court.

Alaska Supreme Court: “Tununak I” (Foster Care Placement) Tribe argued two main issues: Court misapplied “good cause” to deviate from ICWA: “Best interests” can’t mean anything the court/OCS wants it to mean or ICWA loses effectiveness. Dawn’s bond with the foster family was result of failure to honor ICWA. Grandmother being “too old” is not a legitimate reason to deny placement. Court applied wrong legal standard to the question of whether good cause existed to deviate from ICWA’s placement (“preponderance of the evidence” vs. “clear and convincing evidence”). ST

“Tununak I” (Foster Care Placement) OCS argued that court applied the correct legal standard and correctly evaluated Dawn’s best interests. The Tribe won. Alaska Supreme Court reversed and remanded: Native Village of Tununak v. Dep’t of Health & Soc. Servs., 303 P.3d 431 (Alaska 2013)

“Tununak I” (Foster Care Placement) The Alaska Supreme Court DECIDED: “Best interests” is the appropriate evaluation for whether good cause exists to deviate from ICWA’s placement preferences, and court evaluated appropriate factors. BUT before a court looks into whether good cause exists, court must first evaluate whether ICWA placements are suitable.  Must do that evaluation under the prevailing norms of the Native community. CINA judge applied wrong legal standard: correct legal standard is clear and convincing evidence.

What does the “Tununak I” decision mean? In a placement review, court has to do a two-step analysis: Are there any suitable ICWA-compliant placements? Evaluated under Native community’s norms. Does good cause exist to deviate from placement preferences? OCS has to meet high burden – clear and convincing evidence – to show that good cause exists to deviate from ICWA’s placement preferences.

Native Village of Tununak v Native Village of Tununak v. State of Alaska “Tununak II” (pending in Alaska Supreme Court) Court stayed the adoption appeal until the placement appeal was resolved; after issuing Tununak I, it asked the parties what should be done with adoption appeal. Four days later, US Supreme Court issued Adoptive Couple v. Baby Girl.

Adoptive Couple v. Baby Girl 133 S. Ct. 2552 (2013) FACTS: Child’s non-Native mother and Native father (Cherokee Nation) were engaged to be married, but the engagement was later broken off. Shortly thereafter, the mother sent father a text message asking if he would rather pay child support or relinquish his parental rights. Dad agreed (via text) to relinquish his rights, but thought he was relinquishing to Mother. Mother arranged for a private adoption, without telling the father. Mother knew of father’s Cherokee heritage, but her attorney contacted the Cherokee Nation with the father’s misspelled name and incorrect DOB. September 2009: Adoptive couple was at the birth, and baby went to South Carolina with the couple a few days after her birth. The immediately filed for adoption.

Baby Girl (facts continued) Four months later, father served with the adoption papers. Father believed he was signing papers relinquishing his rights to the birth mother. The next day, he consulted an attorney, and quickly asked the court to hold off on the adoption because he was getting deployed to Iraq in a week. Father in Iraq for 11 months. Court delays for another 9 months.

Baby Girl (facts continued) September 2011: adoption trial; dad won and Baby Veronica returned to dad. South Carolina Supreme Court: Under state law dad’s rights should be terminated and child should be adopted out. BUT, ICWA provides heighten protections to dad. Adoptive Couple did not prove: Being with dad would cause serious emotional or physical harm. “Active efforts” were provided to prevent the breakup of the Indian family. Even if the couple had proven those things, the placement preferences would come into play. Adoptive Couple appealed to the US Supreme Court.

Adoptive Couple v. Baby Girl Three ICWA provisions implicated: Section 1912(d): “active efforts” Section 1912(f): continued custody will result in physical or emotional harm. Section 1915(a): adoption placement preferences This session focusing on placement preferences, but will discuss 1912 briefly.

Baby Girl: Active Efforts 1912(d) Remedial services and rehabilitative programs; preventive measures. Any party seeking to effect a … termination of parental rights to, an Indian child under State law shall satisfy the court that active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and that these efforts have proved unsuccessful.

Baby Girl: Active Efforts (cont.) DECISION: Section 1912(d) only applies where an Indian family’s “breakup” would be caused by the termination of parental rights. REASONING: If a parent abandons a child before birth and child has never been in parent’s legal or physical custody, then there is no relationship that is being discontinued. Unreasonable to expect an adoptive family to “stimulate” a dad’s desire to be a parent. That puts adoptive family in a situation where they would not want to adopt. “breakup” = “discontinuance of a relationship”

Baby Girl: Active Efforts (cont.) “Section 1912(d) is a sensible requirement when applied to state social workers who might otherwise be too quick to remove Indian children from their Indian families. It would, however, be unusual to apply Sec. 1912(d) in the context of an Indian parent who abandoned a child prior to birth and who never had custody of the child.”

Baby Girl: Emotional/Physical Harm 1912(f) Parental rights termination orders; evidence; determination of damage to child. No termination of parental rights may be ordered … in the absence of a determination, … including testimony of a qualified expert witness, that the continued custody of the child is likely to result in serious emotional or physical damage to the child.

Baby Girl: Emotional/Physical Harm DECISION: 1912(f) did not apply because the Indian parent never “had custody of the Indian child.” REASONING: When an adoption is voluntary and initiated by non-Indians with sole custodial rights, the goal of ICWA is not implicated. Here, Dusten Brown never had physical or legal custody of Veronica. Continued custody: “continued” refers to a “pre-existing state” and “something that is resumed after interruption.

Baby Girl: Caveat? “We should decide here no more than is necessary. Thus, this case does not involve a father with visitation rights or a father who has paid all of his child support obligations. Neither does it involve special circumstances such as a father who was deceived about the existence of the child or a father who was prevented from supporting his child.” - Justice Breyer (concurrence)

Baby Girl: Placement Preferences 1915(a) Adoptive placements; preferences In any adoptive placement of an Indian child under State law, a preference shall be given, in the absence of good cause to the contrary, to a placement with a member of the child’s extended family; other members of the Indian child’s tribe; or other Indian families.

Baby Girl: Placement Preferences DECISION: The placement preferences of 1915(a) do not apply in cases where no alternative party has formally sought to adopt the child. REASONING: There is no “preference” to apply if no other party has come forward. Bio dad is not covered because he didn’t seek to adopt baby. Court wants to avoid situation where dad abandons child in utero and refuses to pay child support after birth and then at the last minute uses ICWA to override mother’s decision to adopt.

Baby Girl: Placement Preferences Tip from Justice Breyer: Section 1913(c) allows the Tribe to establish a different order of preference by resolution.

“Tununak II” (Adoption Placement) ARGUMENTS: OCS said that pursuant to Baby Girl, because Elise never filed an adoption petition, ICWA’s placement preferences are irrelevant. Tribe said: Babu Girl was a voluntary private adoption, not a state-driven child welfare case: the decision in Baby Girl doesn’t control here. Elise did formally request to adopt Dawn.  Because adoption was based on incorrect placement decision, it should be vacated and remanded to the trial court to be addressed along with the placement issue.

Where are we after Tununak I and Baby Girl? Foster care placements: must look at Tribe’s cultural norms. Adoptive placements: if there is only one family trying to adopt, the placement preferences do not apply. No active efforts for unwed dads who never had custody?? OCS does not need to prove serious harm by unwed dad who never had custody?? ST

Small Group Activity On the yellow paper: What changes might happen in Child-In-Need- of- Aid (CINA) cases as a result of these court cases? What happens if OCS takes custody of child at birth? What will happen to unwed dads who never lived with their child? What else? On the white paper: write down any questions you have about the cases discussed.

Concerns Unwed dads—especially when child taken away as a newborn 1912(e) foster care placement—has same “continued custody” language of 1912(f) Fast-tracking termination

Practice Tips The best way to enforce ICWA is to find Native placements early on in CINA cases. Encourage family members not to wait to ask for placement. If the Tribe disagrees with a proposed state court adoption and knows an ICWA-compliant family who wants to adopt, help them file a petition to adopt with the state court ASAP. To avoid state court entirely: transfer cases into Tribal Court. To ensure that unwed fathers are a priority for placement, Tribes may include them as a placement preference by resolution. The state court must follow that resolution. When in doubt, ask for help! ALSC is here to help.

Record of Placement Problem faced by many tribes: Native children are being placed in non-Native, non-ICWA compliant homes New tool to assist Tribes not represented by an attorney.

What Power Does the Tribe Have? Section 1915(e) Record of placement; availability “A record of each such placement, under State law, of an Indian child shall be maintained by the State in which the placement was made, evidencing the efforts to comply with the order of preference specified in this section.  Such record shall be made available at any time upon the request of … the Indian child's tribe.” Before ORCA, when everything was in a paper file, this was automatically given. It isn’t any more.

How does the Tribe Exercise its Power? Send letter to OCS. If response is inadequate, file Motion to Compel (see www.alaskatribes.org: click on “state court forms” and “motion to compel”)

Outcome? TBD Motion has yet to be tested Legal framework for the Motion and the Order in place, but how courts and OCS will respond can’t be predicted

Value of Motion Packet Notify the judge early Empower the Tribe to hold OCS accountable Expand search for Native homes Force OCS to produce a record * Does not necessarily change placement.

In Closing “[I]t is the policy of this Nation to protect the best interests of Indian children and to promote the … the placement of such children in foster or adoptive homes which will reflect the unique values of Indian culture…” ICWA Sec. 1902. We’ve learned that if Tribes say they agree w/ on out-of-preference placement, then OCS treats that case as being compliant.

Contact Information: ALSC Anchorage (888) 478-2572 Barrow (855) 755-8998 Bethel (800) 478-2230 Bristol Bay (888) 391-1475 Juneau (800) 789-6426 Fairbanks (800) 478-5401 Ketchikan (877) 525-6420 Kenai (855) 395-0352 Kotzebue (800) 622-9797 Palmer (907) 746-4636 Nome (888) 495-6663