View Full Version : Two Indian Child Welfare cases come down on side of Indians

01-13-2005, 06:12 AM

Two Indian Child Welfare cases come down on side of Indians
Experts predict far-reaching consequences

Ruth Steinberger Lakota Times Correspondent 1/12/2005

Two South Dakota Supreme Court decisions released last week signaled strong
victories for the Indian Child Welfare Act. Both decisions have far reaching
implications for Indian Tribes and families.

In both cases, actions by the South Dakota Department of Social Services that
resulted in family terminations were deemed by the South Dakota Supreme Court
to have been handled outside of the provisions of ICWA. In one case a family
termination was reversed and will be sent back to the lower court. The cases
involved are extremely complicated, but most of those involved consider them
victories for the Indian people.

In a case involving a Rapid City family, a judge overturned a lower court
decision that preempted the federal law known as ICWA by a federal law called
the Adoption Safe Families Act (ASFA), a 1996 law intended to speed up family
terminations and adoptive placements in cases where there is no hope of family

In the second case involving a Sioux Falls family, the court upheld standards
for individuals who are used as an, ‘expert witness’ in an ICWA case and
overturned a family termination that was based on someone who the parents and
the Cheyenne River Sioux Tribe contended was not qualified to be used as an
expert witness.

Both cases involved children who were eligible for enrollment as members of the
Cheyenne River Sioux Tribe and the families of the children filed the appeals.

In the case of the Rapid City family the South Dakota Supreme Court opinion
upheld the judges ultimate decision to terminate parental rights but found the
judge had committed legal error in saying that the Adoption Safe Families Act
overrode provisions of ICWA by releasing the state from following ICWA’s
requirement for active efforts to try to work with the family to try to find
placement for the child.

Although the opinion found legal error in the lower court action, the opinion
noted that the state had made active efforts although the earlier decision did
not compel them to do so and so the termination was upheld.

Peg Egan, Attorney for the Cheyenne River Sioux Tribe said, “We disagree and
believe that active efforts were not made to the level that they could or
should have been. But the important thing is that ruling was not allowed to
stand.” Egan continued, “In the lower court the state claimed that ASFA
applied and that under ASFA the court is allowed to release the state from
following reasonable efforts to reunify the family if the circumstances that
generally apply under AFSA exist. The judge accepted that argument and said
that as long as AFSA releases the state from having to provide reasonable
efforts it doesn’t make sense that we should have you continue to provide
active efforts and he released the state from having to make any efforts. And
ultimately sometime later the judge terminated.”

Last week’s decision found that ASFA does not release the state from having
to follow the mandates of ICWA regarding making efforts to locate appropriate
family or tribal placements for the child. In the court opinion Justice
Konenkamp wrote, ‘Under the Adoption and Safe Families Act (ASFA), enacted in
1997, “reasonable efforts” to reunify a family are not required before
termination of parental rights when a parent has a pattern of abusive or
neglectful behavior constituting an aggravated circumstance. On the other hand,
the Indian Child Welfare Act (ICWA), enacted in 1978, provides special rules
for the needs of Indian children and families. ICWA requires “active
efforts” to reunite families before a parent’s rights may be terminated. In
this abuse and neglect case, the father, a member of a federally recognized
Indian tribe, appeals the termination of his parental rights. During the
proceedings, the trial court ruled that ASFA “preempts” the requirements of
ICWA, such that “active efforts” were not required in the circumstances. We
conclude that ASFA does not override the requirements of ICWA. We affirm the
termination of parental rights, however, because despite the court’s
erroneous ruling, the record reflects that the Department of Social Services
(DSS) continued to provide “active efforts” to reunify the family, but such
efforts were unsuccessful.’

Egan said, “In the intervening time after the initial ruling that the state
no longer had to do active efforts the state workers continued to provide
services to the family that the higher court felt did indeed meet the active
efforts requirement. They felt that even though the ruling released the state
from making active efforts, the state did so anyway.

So they upheld the termination even thought they said that ruling was a legal
error. If the state had said refused to continue working with this family that
termination may have been overturned as well, but since they went ahead and
continued to work with the family the termination did hold because they in fact
met the guidelines that would have been imposed under ICWA had ICWA been upheld

Egan said, “The important thing for the tribe is that ruling of legal error
and the clear language that says that in no way does a finding that AFSA
applies to the case overall release the state from following the provisions of
ICWA, particularly regarding the provisions calling for active efforts to place
the child with family or within the tribe.”

Peg Egan said, “The federal AFSA includes five circumstances in which the
state is relieved from making active efforts to reunite the family. They are
violent offenses, for example if a parent kills the sibling of the child. But
South Dakota added three more circumstances, so in South Dakota there are eight
circumstances in which AFSA applies and hastens family terminations.” Egan
emphasized, “The state added three more circumstances and two of these fall
disproportionately on Indian families. These circumstances under AFSA release
the state from making reasonable efforts to reunify the family.” Egan said
she is not aware of the legislative history of those provisions, but said that
if this case had been decided differently the added circumstances of AFSA would
definitely increase Indian family terminations. She said, “This put a stop to

Egan explained, “Even if any of those circumstances, even if all eight of
them, are found in a case and therefore AFSA applies, and even if the state is
released from making reasonable efforts under AFSA, if the case involves an
Indian family the state will still be required to provide active efforts to
reunify the family under ICWA.”

The point of AFSA, a law that was heavily supported by the private adoption
lobby in congress, is allegedly to be to get stability for the children.
According to Egan, “ASFA tries to accomplish this by accelerating the process
toward termination and adoption, whereas ICWA tries to accomplish the same
thing for the child by slowing things down and searching for relative contact
and by trying to place the child within the extended family or within the
child’s tribe.”

Preliminary findings of a recent GAO study reveal that when efforts are made to
reunify the family by searching for relatives and find kinship placement
through the tribe, although it takes longer, the resulting placement tends to
be more stable than if there is a rush to adopt out and sever contact with the
tribe. The report was commissioned by Senator Tom Delay (R- Texas) in his
efforts on behalf of the private adoption industry, to learn how ICWA was
slowing down placement of Indian youth. Egan noted that the private adoption
industry, with notable Republican support, has supported efforts to make family
terminations and adoptions easier and faster.

In the second case, filed by a Sioux Falls family, the court upheld a standard
for individuals providing expert witness in a case involving termination of
parental rights of an Indian family.

Egan explained, “ICWA requires expert witness testimony in two circumstances.
One is before the state places an Indian child in an out of home placement.
Those hearings are never held in South Dakota, which violates ICWA, but they
just do not occur. The second circumstance is in the event of termination.
Prior to termination the state must provide expert witness testimony. The
question asked is if continued custody by the parent or custodian result in
serious physical or emotional damage to the child.”

ICWA does not spell out who may be considered an ‘expert witness.’ BIA
guidelines give three examples, but the legislative history of ICWA makes it
clear that congress intended this to be somebody who is ideally from the
child’s tribe.

According to Egan, “This is to be someone who can look at the family and
comment within the context of the tribes culture, the tribes values, the
kinship structure and answer if continued custody may endanger the child
physically or emotionally. The purpose of the ‘expert witness’ testimony is
to assist the state judge by giving them a perspective on how the tribe would
view this family.” Egan continued, “Ideally ICWA wants cases transferred to
tribal court, but when you can’t transfer to tribal court, and state judges
and non-Indian people sit in judgment of an Indian family they must come up
with an expert witness who will help the judge understand the tribe and how the
tribe would view the family. That is the intention.”

Egan said, “We argued was that the person’s area of expertise be related to
the question that they are answering. In some places the state uses DSS workers
as ‘expert witnesses. They cite the fact that 60% of DSS cases involve Indian
families, making the caseworker an expert in Indian families. In some places
they routinely use the caseworker who is involved in the removal of the child.
In Sioux Falls they were using a non-Indian lawyer whose contact with Indian
kids had been placing them in jail as a prosecutor for several tribes as the
expert witness. In court I asked James Eirinberg what he knew about Lakota
kinship and he claimed he read a hundred articles on ICWA, but he could not
name any of them. He said he had contact with a couple thousand Indian
people-well, what does that mean? Did you go to the Denver pow-wow? Ultimately
he said he was not an expert in what he called, ‘ Sioux culture.’”

Last week’s opinion calling for higher standards for ‘expert witnesses’
states, ‘The necessity of requiring compliance with the terms of ICWA is
reflected in its purpose, to protect the tribal interest in its children,
therefore, we must remain vigilant because, in large part, the members of the
tribe are its culture. …This is in accord with the general legal doctrine
that each tribe needs “to control their own internal relations,
and…preserve their own unique customs and social order.”’

The original decision in this case was reversed and remanded, meaning that
termination of parental rights were reversed and another hearing will take
place on that case and if the state wants to move for termination they will
have to come up with another expert witness.

Steve Emory testified for the Cheyenne River Sioux Tribe. Emery recommended
against termination, but also against placing the children back with the
parents at that time. Egan said, “What is important is that the court came
out and although they did not go so far as to say the expert witness must be a
tribal member, they did say it must be someone with specific experience and
knowledge of that tribe and that knowledge must be related to child rearing and
kinship. In other words the person must have bearing on the question being
asked.” She concluded, “In the Sioux Falls case the question was did the
trial judge abuse their discretion. The fact that the court found that she had
abused her discretion was a powerful statement on this issue. Both of these
decisions were ground breaking opinions.”

Andrew Small of BlueDog, Olson and Small, is a consultant on ICWA and trains
professionals on ICWA. Commenting on last week’s decisions Small said, “It
was really, really good news. It was not such a surprise on the expert witness
case. There is a lot of confusion in the courts about the person being an
expert in ICWA, versus the person being an expert in child rearing and family
structure of a specific tribe. It’s not that hard of a question. So often
people are qualified for the wrong reason.”

According to Small sometimes social workers or lawyers are qualified and they
talk about ICWA rather than the values and beliefs of the tribe. Small said,
“I think the more significant of the two decisions was the question of
whether the Adoption Safe Families Act trumped the active efforts requirement
of the Indian Child Welfare Act. That decision was completely appropriate and
very helpful.” He explained, “This conflict is unavoidable for states and
social workers and courts because there is an AFSA mandate that makes
termination and permanency the two most important factors in child welfare
decisions, and ICWA has a clear requirement that you cannot make placement or
permanency determinations in the absence of showing that you have engaged in
‘active efforts’ rather than the ‘reasonable efforts’ that are
typically required of the state workers in those cases.

Small noted that, “There has been a difficulty in those cases partially
because the AFSA performance is tied to the money that states receive e for
placement and adoption services. Lack of compliance can mean a decrease in the
amount of money that they get. To move quickly with termination and adoption is
the purpose of ASFA, which was meant to protect children who languish in foster
homes for years with no hope of reunification with their families. There is a
line of thinking that is popular right now that a much shorter timeline for
kids so they don’t languish in foster care is beneficial to them, and
that’s not something that anyone would typically argue with. But in the
context of Indian children and families, and the way that tribes provide for
and support their kids is different than it is in other cultures, especially
the dominant white culture.”

Small concluded, “Not withstanding any of that, the imposition of the mandate
to move quickly that is in AFSA has caused a reduction in the kind of efforts
that are extended on behalf of Indian children. There’s nothing in the law
that indicates that the timelines in AFSA are to trump the active efforts
requirements in ICWA, there is not legislative history whatsoever.”

Terry Cross, Executive Director of National Indian Child Welfare Association
said, “We are every pleased with these findings. The provisions of the Indian
Child Welfare Act were affirmed and the protections for Indian children and
families were held in place. The Indian Child Welfare Act is intended to
prevent the unnecessary break up of Indian families and the key word there is
unnecessary.” Cross continued, “It does not dictate outcomes but it does
set up a process of checks and balances. We are happy that the courts found
that those checks and balances are appropriate, and that the federal law does
hold precedence in cases affecting Indian children. I would also add that NICWA
applauds the good work of the Cheyenne River Sioux Tribe and the Oglala Sioux
Tribe for their protection of tribal children and Indian family’s rights.”

Virgena Weisler of the South Dakota Department of Social Services said that her
department had not had time to review the decisions and she could not comment
on them. She did not have an estimate of when the department would be able to

Peg Egan concluded, “Any Indian child from any tribe in this state is now
better protected and other tribal attorneys from around the country can rely on
the language in these cases as they fight these questions.”

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