Justia Native American Law Opinion Summaries

This case involved a contest over the private adoption of a child born in Oklahoma to unwed parents, one of whom is a member of the Cherokee Nation. After a four day hearing in September 2011, the family court issued a final order on November 25, 2011, denying the adoption and requiring the adoptive parents to transfer the child to her biological father. The transfer of custody took place in Charleston, South Carolina, on December 31, 2011, and the child now resides with her biological father and his parents in Oklahoma. THe adoptive parents appealed. The Supreme Court affirmed the decision of the family court which denied the adoption and awarded custody to the biological father.View "Adoptive Couple v. Cherokee Nation" on Justia Law

M.A.S. (Father) appealed the termination of his parental rights to P.S.E. At the time P.S.E. was removed from Mother’s care, Father lived in California and did not know he had a child in South Dakota. The Indian Child Welfare Act (ICWA) applied to these proceedings because P.S.E. was an enrolled member of the Fort Peck Sioux Tribe. Father argued on appeal that the Department of Social Services (DSS) did not make active efforts to reunite the Indian family and that any efforts made were successful. Because the evidence presented shows that DSS provided active and reasonable, though abbreviated, efforts to place P.S.E. with Father, and those efforts were unsuccessful, the Supreme Court affirmed the trial court's order terminating Father's parental rights.View "In the interest of P.S.E." on Justia Law

"Jade" is the biological daughter of Roy and Sheila. Jade is an Indian child as defined in the Indian Child Welfare Act (ICWA). Between 1998 and 2007, the Office of Children's Services (OCS) received at least 12 reports of drug abuse and child neglect in the family. Before Jade's birth in September 2004, the couple's older children were transferred to OCS custody for two years. Roy and Sheila attempted to complete drug treatment programs but were unsuccessful. Sheila relapsed while pregnant with Jade; her discharge report from the treatment program indicated she tested positive for cocaine in August 2005 and stopped attending treatment sessions or contacting drug counselors in October 2005. Roy was discharged for positive drug tests and missing treatment. Since being taken into OCS custody in July 2008, Jade has lived in five separate placements. In its termination order, the superior court found that termination of parental rights was in Jade's best interests and that OCS made active efforts to prevent the breakup of the Indian family. Roy contested three of the superior court's findings: that OCS made active efforts to prevent the breakup of the family; that termination was in Jade's best interests; and that good cause existed to deviate from the ICWA placement preferences. Sheila did not appeal the superior court's decision. Upon review, the Supreme Court found that the record supported the superior court's conclusions with regard to OCS's efforts to keep the family together, and that it was in Jade's best interests to terminate Roy's parental rights.View "Roy S. v. Alaksa" on Justia Law

A father appealed the termination of his parental rights to his daughter, an Indian child within the meaning of the Indian Child Welfare Act (ICWA). He challenged the superior court's findings that the Office of Children's Services (OCS) made active efforts to prevent the breakup of his Indian family, arguing that OCS failed to investigate placement with his extended family members and did not provide him with adequate visitation and remedial services. Upon review, the Supreme Court concluded that OCS made active efforts, and accordingly affirmed OCS's decision.View "Josh L. v. Dept. of Health & Social Services" on Justia Law

This case arose from a Child In Need of Aid (CINA) case involving four Indian children who were removed from their parents’ care due to substance abuse and domestic violence. The children were placed with their maternal grandmother, who claimed that the Office of Children’s Services (OCS) permanently removed the children and placed them with a non-Native foster family while she was away in Montana caring for her elderly mother. There were substantiated reports of harm relating to the grandmother’s care, and the tribe expressed dissatisfaction with the children’s placement with their grandmother. After removing the children, OCS did not provide the grandmother with notice of scheduled permanency or placement hearings for the children. Over a year after returning from Montana, the grandmother formally requested that the children be placed with her. OCS denied this request and the grandmother appealed, arguing that the children should be placed with her and that the failure to provide her with notice of hearings conducted during the preceding year violated her due process rights. After a full hearing, the superior court denied the request, finding good cause to deviate from the Indian Child Welfare Act’s (ICWA) placement preferences. The court further concluded that the grandmother was neither entitled to notice of earlier hearings nor prejudiced by a lack of notice. After the superior court proceedings, the children were adopted by the foster family with whom they had bonded. The grandmother appealed the adoption. Upon review, the Supreme Court found that because there was not good cause to deviate from the ICWA preferences, the adoption should be set aside and OCS should begin to reunify her with her grandchildren. The grandmother was correct in her argument that she did not receive proper notice of the earlier permanency proceedings. But because any prejudice to the grandmother was cured by the subsequent hearing in which she participated and was able to present evidence and cross-examine witnesses, and because the superior court did not commit plain error by finding good cause to deviate from ICWA’s placement preferences, the Court affirmed the superior court’s ruling. View "Paula E. v. Alaska" on Justia Law

In combined cases, the Supreme Court examined the Indian Child Welfare Act (ICWA) to decide whether several issues relating to the Act's notice provision mandate notice be sent to the appropriate tribe or to the Secretary of the Interior. Because the question of whether notice violations occurred in these cases began with determining whether the tribal-notice requirement was triggered, the Court first considered what indicia of Indian heritage sufficed to trigger the notice requirement. Further, the Court then considered whether a parent could waive the rights granted by ICWA to an Indian child's tribe and determine the appropriate recordkeeping requirements necessary to document the trial court's efforts to comply with ICWA's notice provision. "While it is impossible to articulate a precise rule that will encompass every possible factual situation, in light of the interests protected by ICWA, the potentially high costs of erroneously concluding that notice need not be sent, and the relatively low burden of erring in favor of requiring notice, we think the standard for triggering the notice requirement of 25 USC 1912(a) must be a cautionary one." Upon review, the Supreme Court held that: (1) sufficiently reliable information of virtually any criteria on which tribal membership might be based suffices to trigger the notice requirement; (2) a parent of an Indian child cannot waive the separate and independent ICWA rights of an Indian child's tribe and that the trial court must maintain a documentary record; and (3) the proper remedy for an ICWA-notice violation is to conditionally reverse the trial court and remand for resolution of the ICWA-notice issue.View "In re J.L. Gordon, Minor" on Justia Law

In combined cases, the Supreme Court examined the Indian Child Welfare Act (ICWA) to decide whether several issues relating to the Act's notice provision mandate notice be sent to the appropriate tribe or to the Secretary of the Interior. Because the question of whether notice violations occurred in these cases began with determining whether the tribal-notice requirement was triggered, the Court first considered what indicia of Indian heritage sufficed to trigger the notice requirement. Further, the Court then considered whether a parent could waive the rights granted by ICWA to an Indian child's tribe and determine the appropriate recordkeeping requirements necessary to document the trial court's efforts to comply with ICWA's notice provision. "While it is impossible to articulate a precise rule that will encompass every possible factual situation, in light of the interests protected by ICWA, the potentially high costs of erroneously concluding that notice need not be sent, and the relatively low burden of erring in favor of requiring notice, we think the standard for triggering the notice requirement of 25 USC 1912(a) must be a cautionary one." Upon review, the Supreme Court held that: (1) sufficiently reliable information of virtually any criteria on which tribal membership might be based suffices to trigger the notice requirement; (2) a parent of an Indian child cannot waive the separate and independent ICWA rights of an Indian child's tribe and that the trial court must maintain a documentary record; and (3) the proper remedy for an ICWA-notice violation is to conditionally reverse the trial court and remand for resolution of the ICWA-notice issue.View "In re C.I. Morris, Minor" on Justia Law

Mother, a non-Indian, gave birth to Child and decided to place Child for adoption. Father was a member of Cherokee Nation. Mother chose a non-Indian family to adopt Child. Adoption Agency filed a pleaded seeking to deviate from the Indian Child Welfare Act's (ICWA) placement preferences. The district court decided to deviate from ICWA's placement preferences based on Mother's preference that Child be placed with a non-Indian family. Intervenor Cherokee Nation challenged the district court's decision. The Supreme Court reversed, holding that, absent a request for anonymity by a biological parent with respect to a child's placement, a parent's placement preference cannot override ICWA's placement factors.View "In re T.S.W." on Justia Law

Upon adjudication of parental neglect, the Division of Child and Family Services (DCFS) took custody of L.O., a child and an enrolled member of the Navajo Nation, and placed L.O. with a foster family. After L.O.'s natural parents relinquished parental rights, L.O.'s foster family filed a petition for adoption. The Nation filed an objection to the adoption because DCFS failed to abide by the placement preferences contained in the Indian Child Welfare Act and moved the juvenile court to transfer jurisdiction to the Nation. The juvenile court denied the transfer motion. The Nation appealed, and the court of appeals dismissed the case. After the Supreme Court granted certiorari to consider two procedural questions raised by the Nation, the juvenile court granted the foster family's petition to adopt L.O. Filed with the adoption order was a document titled "Navajo Nation's Consent to Adoption." The Supreme Court declined to address the issues raised on certiorari and dismissed the petition for certiorari, holding that the Nation's consent to L.O.'s adoption placement rendered the procedural questions moot.View "Navajo Nation v. State " on Justia Law

After a hearing, the circuit court terminated Mother's parental rights to Child. Mother was Native American and eligible to be enrolled in the Crow Creek Sioux Tribe, but because she was not actually enrolled, an Indian Child Welfare Act (ICWA) specialist for the Tribe concluded that Child was not eligible for enrollment. Since Child was not enrolled or eligible for enrollment, the court found ICWA inapplicable. The Supreme Court affirmed, holding that the circuit court did not err (1) in finding ICWA inapplicable, as Mother failed to show that Child was an Indian child within the meaning of ICWA; and (2) in finding that termination of Mother's parental rights was the least restrictive alternative available.View "In re L.S." on Justia Law