1. The Role of the Tribal Judiciary in Child Abuse and Neglect Cases BJ Jones Director-Tribal Judicial Institute Chief Judge- Sisseton-Wahpeton Oyate

2. What’s on the docket for this presentation? Examine the Indian Civil Rights Act protections that must be afforded parents, children, extended family, foster care providers in child abuse and neglect cases. Role of the Tribal Judge in both original proceedings started in Tribal Court and transfer cases under ICWA What judicial philosophy a Judge must maintain in these types of cases? How to avoid an appearance of siding with the Child Protection Program in these cases

3. Why are these cases difficult for Tribal Judges? Concept that overriding interest is the “best interest of the child” difficult to administer as a Judge Removing children brings out raw emotions in litigants and advocates Reality is that in many places Indian children are being removed by tribal courts at rates higher than state courts Difficult to defend oneself against charges of improper judicial conduct because cases are confidential

4. Indian Civil Rights Act Protections ICRA prohibits tribal government from depriving a person of a “liberty” interest without due process of law- 25 U.S.C. 1302(a)(8) “Liberty” interest has been interpreted by US Supreme Court to include the right to raise one’s children free of governmental interference and the right to remain within the nuclear family- Moore v. City of East Cleveland

5. Who has protected rights in Child Welfare cases in Tribal Courts? Parents and Guardians of Children Have a Liberty Right to raise their children Children who have been abused and neglected have the right to remain within the nuclear family unless government demonstrates adequate grounds to remove the child US Supreme Court rejected the idea that a child has a liberty right to be free of abuse in DeShaney v. Winnebago County Social Services, 489 U.S. 189 (1989 A Tribes's failure to protect an individual against private violence generally does not constitute a violation of the Due Process Clause, because the Clause imposes no duty on the Tribe to provide members of the general public with adequate protective services.

6. More Rights to be protected Foster care providers have rights? Supreme Court rejected the claim that foster care providers obtain “liberty interests” to maintain contact with foster children in Smith v. Organization of Foster Families, 431 U.S. 816 (1977) Some tribal or federal laws may give foster care providers rights to participate in hearings

7. Statutory rights? Indian Child Welfare Act, if applicable in tribal courts, or Tribal Codes may give protected rights to persons other than children and parents such as “extended family members” that must be protected in child welfare cases Putative fathers- Fathers who are not yet legally established as fathers There is an ICWA definition of parent that seems to require some legal determination of paternity or acknowledgment and there is a Supreme Court case call Stanley v. Illinois which holds that fathers of children born out of wedlock have rights, but recent US Supreme Court decision in Baby Veronica case causes confusion on what those rights are

8. Role of Judge in Child Welfare Cases- Original Jurisdiction cases Initial removal- does there have to be a pre-deprivation hearing or judicial review before removal? Some Tribes require it- others allow police or Child Protection to remove children Meaningful post-deprivation judicial review- If there is no pre-deprivation judicial there must be a meaningful prompt post-removal hearing-ICWA case in Rapid City, SD discusses this right Can hearsay be used in these hearings? Standard of review in these cases- look at code but primary issue is whether the initial removal was justified and if so whether there continues to be an imminent threat of harm to child if returned

9. Examples Mother gives birth to child and on her drug screen she tests positive for marijuana? Meth?Hydrocodones?- Removal or not? Mother arrested for DUI and child is in vehicle at time of arrest- Mother bonds out of jail and appears at hearing sober Boyfriend of mother abuses mom in presence of children and mom and boyfriend are intoxicated and both arrested? Child removed due to allegations of sexual abuse by father- Evidence offered at emergency hearing is “FBI is looking into the allegations?

10. Adjudicatory hearings (Trial on petition) Many Tribes never reach this point but instead drag out emergency custody orders without establishing clear and convincing evidence to support petition Judge must ensure that the proper procedure under Code is followed in order to sustain a long-term removal of a child from family Many Judges hope that parents work with CPP to gain return of child and issue becomes not whether the child is in danger but instead whether the parent has completed a case plan- Is this proper?

11. Dispositional hearings- Placement hearings- Permanency hearings Supposed to be hearing regarding placement of child after adjudication but instead generally tends to be a lot of temporary dispositional hearings Permanency hearings- Hearings to determine long-term plan for child- Reunification, kinship care, suspension or termination of parental rights, etc

12. Terminations or suspension of parental rights Strongly implicate rights under the ICRA and must be taken as seriously as a criminal trial Default terminations or suspensions Notice required to parent in these types of cases

13. Process in ICWA cases Role of Court is to either accept or decline transfer of jurisdiction- Some Tribes though give the Tribal Judge the authority to seek a transfer Once transfer is granted Tribe can either start at point State court left off or start anew, but parents and child still entitled to due process of law No requirement to grant full faith and credit to state court actions Transfer does not mean automatic reunification with parent

14. What is role of Tribal Judge in obtaining a transfer? Judge generally not involved in arguing for transfer but some Codes give her that responsibility Judge must ensure his impartiality in these cases Can Judge transfer case back to State Court if problems arise? No procedure for this although it has been done Transfers between Tribal Courts?

15. Judicial Tenets to apply in these cases Children have a right to be raised in their own families so presumption is always in favor of returning children Judge must never become spokesperson for Child Protection program or feel obliged to follow CPP recommendations Should Judge visit with children involved in these cases??

16. Some emerging issues Impact of Proposed ICWA regs on tribal court cases- Possibly more cases coming our way Impact of proposed federal regulation pertaining to mandated background investigations on all placements? Good or bad idea- Who pays?

17. Maintaining a Healthy Balance between Parties in these Cases