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Posts Tagged ‘ICWA’

A recent case from division one, Custody of CCM, gives me the unique opportunity to blog my own case. I represented the appellants in this case. We won.

CCM pitted a non-Indian father against the Indian grandparents. I had the grandparents. Thus, the facts lay in the intersection between two sometimes contradictory statutes: the U.S. Indian Child Welfare Act and Washington’s third-party custody statute.

The case raised several issues: 1) Notice to the child’s Indian tribe, 2) Cure for defective notice, 3) The standard for determining where to place the child, and 4) Child support. We won on three of the four issues.

In terms of notice, the court held that ICWA requires that the child’s Indian tribe needs formal notice of any custody proceeding regarding the child. Formal notice means certified mail, return receipt requested, to the proper tribal authority. If the notice is defective in any way, the Tribe gets a new trial.

In terms of the placement standard, in a custody dispute between two parents, the state-law standard is best interest of the child. However, in a custody dispute between a parent and a non-parent, the standard for placing with the non-parent is much higher. The child is placed with the parent unless 1) the parent is unfit or 2) moving the child from the non-parent to the parent would cause the child actual detriment to his health and well-being.

I argued that this standard didn’t apply to the grandparents because they were the Indian custodians. Since ICWA treats parents and Indian custodians the same, the standard should be the same – best interest. I still think it is a good argument, but it lost. The court held that, where federal law – ICWA – treats the parties the same, the standard for which party gets the child is the state law standard.

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A new case from the court of appeals, division II, In Re the Welfare of MG, # 36975-3, held that the initial involuntary foster-care placement of an Indian child per the Indian Child Welfare Act cannot be considered voluntary at a later date, even if the mother later agrees.

The purpose of the Indian Child Welfare Act is to prevent the break-up of Indian families by establishing minimum standards for the removal of Indian children from their homes. Different standards apply for involuntary removal versus voluntary placement.

In an involuntary proceeding, the tribe must be notified, the parents are entitled to appointed counsel, the state must offer remedial services to the parents, and the state must prove that failure to remove the child would result in serious physical or emotional damage to the child.

In a voluntary proceeding, however, the state need only ensure that the Indian parent is fully aware of the consequences of placing the child with others, and the parent can revoke permission in the future.

In this case, the mother had a serious problem with drug use. The child was born premature, underweight, and with symptoms of drug withdrawal. The mother signed an agreed dependency order, whereby the child could stay with the mother while the mother was in rehab., pending approval of the child’s medical care providers.

However, the child’s medical care provider did not approve because the child was too weak. The mother then attempted to revoke her consent. The court held that an agreed order of dependency was not a voluntary placement under ICWA.

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