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Two Indian Child Welfare cases come down on side of Indians

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  • Two Indian Child Welfare cases come down on side of Indians

    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.”

    A good friend will come and bail you out of jail . . . but, a true friend will
    be sitting next to you saying, "**** . . . that was fun!"
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