Indian Child Welfare Act: Still Under Siege

OVERVIEW

The Government Accountability Office reported that in 2003, American Indian children represented about 3% of total number of children in foster care in United States, but only 1.8% of total population under age of 18. The GAO Study also revealed that in five states, at least one-quarter of the foster care population was American Indian. It also reported that few empirically validated studies on the effectiveness of the ICWA are available, in part because many states fail to maintain accurate records tracking cases to which the ICWA applies.

“Notwithstanding the fact that the Indian Child Welfare Act (ICWA) was passed in 1978, full compliance with the Act remains elusive,” the Washington State Racial Disproportionality Advisory Committee explains in a report issued in January 2010.

Regarding the status of the nationwide implementation of the ICWA, the report explains: “A literature review found no articles or research on the impact of state ICW legislation on the disproportionality of Indian children in the child welfare systems. Follow-up phone calls to American Indian Child Welfare managers in Iowa and Nebraska indicated that they did not have internal processes to track and analyze data related to disproportionality. The Native American Rights Fund and National Indian Child Welfare Association were also unaware of any formal or informal research or studies, outside of Washington State, regarding strategies to reduce disproportionality of Indian children in child welfare systems.”

“Too many Native parents face extraordinary hurdles in keeping their children—including cultural misunderstandings and legal barriers that are unimaginable to many non-Native people. In this second decade of the 21st century, American Indian children in states across the country are still taken from their families and placed in foster care or adoptive homes at a much higher rate than those for other kids—just as they were before the passage of the 1978 Indian Child Welfare Act (ICWA), a federal statute intended to help keep Native families intact,” Stephanie Woodard explains in a recent article in Indian Country.

Woodward has some statistics at hand to back her claims: “In Alaska, Native children make up 20 percent of the child population but 51 percent of those a state agency has placed in foster care; Montana, Nebraska, Oregon, Utah, North Dakota and Washington also have similarly skewed ratios. In Minnesota, the percentage of Native children in foster care is high, and it’s gotten worse in recent years. Disproportionalities exist nationwide at every stage in the process, starting right from the initial reports of possible abuse or neglect of a Native child.”

The most recent information on disproportionality is to be found in a study released by the National Council of Juvenile and Family Court Judges in May 2012. The study found that: “Across the United States, Native American children are overrepresented in foster care at a rate of 2.1 times their rate in the general population. While not all state show disproportionality, 21 states do have some overrepresentation. Twenty-seven percent of the states that have overrepresentation have a disproportionality index of greater than 4.1. In Minnesota, the disproportionality is index 11.2, in Washington State it is 5.6.”

“An alarming figure illustrates that Nebraska has the second-highest imbalance in the country when it comes to the number of Native American children in the state’s foster care system. Though Native Americans make up roughly one percent of Nebraska’s population, native children represent eight percent of the total number of children in foster care,” Nebraska Appleseed reports.

In 2008, Nebraska Appleseed joined with tribal leaders, the Indian Child Welfare Program Specialist for the Nebraska Department of Health and Human Services, Legal Aid of Nebraska’s Native American Program, and other advocates to create the Nebraska ICWA Coalition. The Coalition, together with a number of tribal representatives, family members, and other advocates, participated yesterday in a Legislative interim study held in Macy on the Omaha Reservation.

“The purpose of the Coalition is to identify ICWA issues within Nebraska’s county and juvenile courts with the goal of working together to resolve any concerns,” explained Staff Attorney Robert McEwen during his testimony.

“The Nebraska ICWA Coalition has compiled a list of culturally appropriate social services and has conducted various ICWA trainings for attorneys and case professionals across the state, including recruiting and training qualified expert witnesses as required under ICWA. Nebraska Appleseed, in cooperation with the Nebraska ICWA Coalition, has filed two amicus briefs before the Nebraska Supreme Court in cases involving the interpretation of key components of ICWA,” McEwen added.

The ICWA Coalition presented a preliminary set of recommendations to improve ICWA in Nebraska during the hearing.

Appleseed has been among the forefront of those advocating for the rights and needs of foster children in the face of privatization in the state of Nebraska.

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From Charleston, South Carolina, comes the news of a contentious legal ruling that sent a Native American girl back to Oklahoma from her adoptive family. The South Carolina Supreme Court ruled in July that the 2-year-old should be returned to her biological father, a member of the Cherokee tribe. It was the court’s first decision weighing state adoption laws against the Indian Child Welfare Act. The case is being appealed to the U.S. Supreme Court.

ARIZONA TAKES OFF ITS’ RAINBOW SHADES

According to a 2002 study, Arizona appeared to be making efforts to comply with the terms of the Indian Child Welfare Act. However, while tribal attorneys reported that they were somewhat to very familiar with ICWA requirements, “three fourths (73%) believed that ICWA did not do enough to protect the rights of Indian children and tribes.” In contrast, only 43% of tribal judges were of this opinion.

The Arizona Court of Appeals, in an August 28 ruling, upheld a juvenile court decision finding “good cause” to deviate from the Indian Child Welfare Act, Indian News reports. The 2-year-old child – identified only as “Z” in court documents – was “rescued” from his parents’ home at the age of 1 month, according to the ruling.

“It’s contrary to the majority of the cases and of the intention of the act,” said Craig Dorsay, a Portland, Oregon-based attorney who previously worked on the Navajo Nation, and has worked with thousands of ICWA-related cases.

“It’s a concerning case,” Dorsay said. “The majority opinion states what I would call an anti-Indian child welfare case.”

A number of recent appellate cases indicate that the Arizona Department of Economic Security, which administers Child Protective Services programs, has been busily engaged in plucking a disproportionate number of Native American children out of their homes in a complete disregard of federal law. In Devina H. v. Arizona Dept. of Economic Security, the Court of Appeals, in a July 19, 2011 ruling, found that “expert testimony” supported its decision to terminate parental rights.

Before reviewing the testimony provided in the case, let’s review the oft-cited book edited by Steven Unger of the Association on American Indian Affairs in 1977. In “The Destruction of American Indian Families,” the practice of bringing in “experts” to testify as to the Native American parents’ alleged “deficiencies” is reviewed at some length:

The case planning for Indian children is biased from the beginning. Workers tend to place Indian children in non-Indian substitute homes where there is the likelihood that they can remain a long time either through permanent foster care or adoption. This becomes an important factor in the department’s case. It can demonstrate that a permanent, loving, caring home has already been found, and also claim that removal of this child to the questionable home of his Indian parents or relatives would inflict severe, longlasting and traumatic damage to the child. Experts are brought in to testify to the traumatic effects of separation and placement. Parents unwittingly submit themselves to psychiatric or psychological testing paid for by the department to prove that they are unfit, troubled people and parents. The referrals to these psychological experts are made by the department workers who in their letters of referral painstakingly list the parents’ failures. No mention is made of strengths.

And the parents’ rights are terminated.

Bearing this in mind, let us review the Devina H decision. Specifically, the Court of Appeals opined:

The supervising psychologist and the graduate psychology student who administered Mother’s psychological evaluation testified Mother had Bipolar II Disorder and Antisocial Personality Disorder. They both testified Antisocial Personality Disorder negatively impacted Mother’s ability to parent because people with this disorder typically lack empathy, disregard the safety of others, and act aggressively and impulsively without any remorse. Moreover, they testified that although the impulsive, manic, and depressive behaviors associated with Bipolar II Disorder may be regulated with medication and therapy, Antisocial Personality Disorder has no effective treatment. They also testified any CPS services offered to Mother would be futile to treat that disorder and a child in Mother’s care would be “at risk of physical abuse or neglect.”

Antisocial Personality Disorder, indeed. The Tennessee Court of Appeals handily saw through a similar ruse tossed out by the Department of Children’s Services, which claimed “that father’s narcissistic personality disorder was sufficient evidence to support a finding that the grounds for terminating the father’s parental rights” pursuant to the relevant state Codes. Some years earlier, a California court overruled a termination on the same grounds.

In Karen O. v. Arizona Dept. of Economic Security, decided in December of 2011, appellants Jeff O. and Karen O., husband and wife, appealed a juvenile court’s denial of their motion to intervene in the adoption petition of three Navajo children by their non-Indian foster parents. The Navajo Nation moved to stay the adoption petition but was denied, as the Court of Appeals “found that it lacked standing to request a stay in a majority decision on that issue.”

FAILURE TO BENEFIT FROM OFFERED SERVICES

In Karen P. v. Arizona Dept. of Economic Security, decided in February 2012, the Department essentially argued that it had provided reunification services to the mother, which largely consisted of a boiler plate reunification plan, including “referrals for substance abuse treatment, mental health treatment, parenting classes, parent aide services, and visitation.” While the mother did attend visits with her children fairly regularly, “she did not substantially participate in any of the other services offered to her.”

While the mother was apparently reluctant at first to participate, she nevertheless successfully participated in drug testing and became “actively engaged in her substance abuse treatment.” Also, she completed a psychological evaluation and was diagnosed with several disorders including borderline intellectual functioning. Following her evaluation, she began participating in individual counseling, and she continued “to actively engage in services until the severance hearing.”

Following a two-day hearing, the juvenile court found the Department had proven the grounds for termination, arguing that severance was in “the best interests of the children.” (Perhaps to her detriment, the court also found that the Zuni Tribe, through its designated representative, agreed that the Department made active efforts to “provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and that those efforts were unsuccessful.”)

In Freddie H. v. Arizona Dept. of Economic Security, decided in August 2012, the father made the mistake of refusing the “services” the Department of Economic Security so generously offered. In an effort to implement the case plan, the Department “developed a case plan that offered Freddie various services, including supervised visitation, and parenting, anger-management, and domestic-violence classes.”

Indeed, it is controverted that: “Throughout the dependency, Freddie repeatedly told CPS workers he did not want to engage in services and failed to maintain contact with CPS for months at a time.”

Testimony reveals that Freddie told CPS that “he didn’t need any services, and that he wanted the child placed with his mother.” CPS nonetheless “met with him to formulate a case plan,” offering “to set up drug testing and parenting classes for him,” as well as “to schedule supervised visits with Freddie Jr.” A case worker, however, claimed that she “was unable to reach Freddie in order to implement the visits.”

LEGAL, BUT HAZARDOUS

In Justin C. v. Arizona Dept. of Economic Security, decided in March of 2012, the Department removed a child who was not at home at the time of his Father’s arrest for growing marijuana. (The child was some time later tested as negative.) The Department filed a dependency petition in March 2011, alleging that the child was dependent as to both parents due to substance abuse and neglect. Specifically, the Department alleged the father failed to provide an appropriate home for the child because:

A significant Marijuana Grow was found in Father’s home. Father’s cultivation of the marijuana in the home exposed the child to not only the marijuana, but also the chemicals used and the toxins and molds produced in the operation. Father’s marijuana growing operation also exposed the child to electrical hazards [because] the child slept in the bedroom next to the operation.

At some point thereafter, the father obtained an Arizona medical-marijuana license to legally cultivate, and he resumed using marijuana sometime later. Oddly, the police arrived at his home in June of 2011 “to arrest both parents for the February incident.” Why there was a four-month long delay between the offense and the arrest is not explained.

After the father’s arrest, the Department – presumably just happening to be in the neighborhood anyway – investigated and found the home in the same condition as it was during the February incident. “A strong odor of marijuana permeated the home. Again, Child’s items were found near drug paraphernalia, marijuana plants and chemicals used to produce marijuana. Lamps and electrical wiring from the operation created a fire hazard, which was aggravated by the lack of functioning smoke detectors.”

The Court of Appeals notes that Section 36-2813(C)-(D) of the Arizona law prohibits “discrimination against medical-marijuana cardholders in child-custody proceedings by negating any presumption of neglect or child endangerment for conduct allowed under the license ‘unless the person’s behavior creates an unreasonable danger to the safety of the minor as established by clear and convincing evidence.'”

Notwithstanding that enactment, the presence of paraphernalia, electrical wiring creating a potential fire hazard, and the lack of functioning smoke detectors combined to make the Department’s case for termination.

The Court of Appeals also ruled that because the father’s dependency proceeding was a civil matter, due process did not automatically include the right to confront an expert witness. It held that “the right to confront witnesses belongs solely to the accused in a criminal prosecution,” citing a prior case that held “that a dependency proceeding is a civil matter, so admission of a hearsay report raises no Sixth Amendment confrontation problems.”

In Denese M. v. Aceto, a case decided in July 2012, the Court came out with a ruling that is seemingly at odds with its ruling in Justin C. All parties agreed that the affidavit of Lewis Lane, who claimed he was an employee of the Arizona Department of Economic Security and a “specialist” in the Indian Child Welfare Act, was at issue.

“Lane averred that DES had made active efforts to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family involved in this case, those efforts were not successful, and that continued custody of the child by Mother or an Indian custodian is likely to result in serious emotional or physical damage to the child.”

It wasn’t only the mother that the “specialist” objected to, rather it was placement with any “Indian custodian.” Perhaps in smelling the proverbial rat, the Court reversed the termination, ordering that the mother be allowed to cross examine the expert as to his qualifications.

THE INCONSEQUENTIAL CLERICAL ERROR

In Henry M. v. Arizona Dept. of Economic Security, decided in July 2012, the Court of Appeals set out the facts of the case, writing:

On December 8, 2009, [Arizona Department of Economic Security] filed a dependency petition alleging three-year-old Gage was dependent as to his parents because his mother, whose whereabouts were unknown, had a history of mental illness and substance abuse, and Henry, who also had a history of substance abuse, was incarcerated. Based on representations made by his maternal grandmother, it was believed Gage was not an Indian child. However, the minute entry from the preliminary protective hearing held on December 15, indicates the juvenile court was advised “ICWA is applicable.” (Emphasis added).

The Court also explained that: “there was no reference to ICWA or Gage’s status as an Indian child at the three subsequent dependency review hearings held in March, July, and September 2010.”

In January 2011, the Department of Economic Security:

filed a memorandum regarding the applicability of ICWA, explaining that based on a clerical error, it had assumed Gage did not qualify as an Indian child, thus resulting in the juvenile court having adjudicated him dependent without notice to the Nation, without findings that active efforts had been made to provide services to prevent the breakup of the family, and in the absence of expert testimony that continued custody would result in serious damage to Gage.

The Department’s “clerical error” only served to forestall the inevitable. Parental rights were terminated, and the decision was upheld on appeal. A close reading of the opinion, however, reveals that there were legal issues that could have – and perhaps should have – been raised on appeal.

A clerical error played a role in Masayumptewa v. Aceto, Arizona Dept. Economic Security, a case decided in March 2012. Due to a miscommunication among parties to the trial, the mother legitimately missed her court date, and her parental rights were terminated by default. A required ICWA hearing had also been passed over. Though the Department argued vigorously against granting a reversal, the Court of Appeals nevertheless granted one.

Jurisdictional confusion has led to “nightmarish results,” explains a recent article in Gonzaga Law Review. By way of offering an example, the authors recount an Arizona ICWA case with several peculiar twists along the way:

In Arizona, a married couple’s four children were held in legal limbo for years while the wife pursued custody first in tribal court, then in state court. The wife, a non-Native, first filed for divorce from her husband, a member of the Hopi Indian Tribe, in Hopi Tribal Court. The tribal court granted the divorce and awarded permanent custody of the couple’s children to the husband. Unhappy with this result, the wife filed a second action for divorce in Arizona state court. The Arizona court, initially unaware of the Hopi court’s previous order, granted temporary custody of the couple’s children to the wife, thereby launching a legal tug-of-war. The husband ultimately regained permanent custody, but only after more than three years of legal wrangling.

CONCLUSION

In a prior entry, I wrote of a San Francisco Housing Authority employee who turned a qualified Indian family away from housing, saying: “I have been working in the Housing Authority for over 20 years. We do not work with Indians, Indian tribes or the Indian Child Welfare Act. Never have — never will.”

National Public Radio conducted a year-long investigation into the Indian Child Welfare Act, finding that “financial incentives” and “cultural bias” are in effect fueling the foster care system. “Each year, South Dakota removes an average of 700 Native American children from their homes. Indian children are less than 15 percent of state’s the child population, but make up more than half the children in foster care,” the report explained.

Over thirty years have elapsed since the enactment of the Indian Child Welfare Act. While some incremental progress may have been made in some areas, the Act has yet to make a meaningful impact. Study after study reveals that the overrepresentation of children of color in the foster care system remains a problem to this day.

How to purge the child welfare system of its inherent racism and classism, its anti-family bias, its violations of parents’ and children’s rights, its arbitrary decision-making procedures, the incompetence and inefficiency of its staff, its costs, and its mismanagement continues to elude even the most astute of the nation’s acedemics and policymakers.