On Point: H. Indian Child Welfare Act

Haaland et al. v. Brackeen et al., USSC No. 21-376, 143 S.Ct. 1609 (June 15, 2023), affirming in part, reversing in part, and vacating and remanding 994 F.3d 249 (5th Cir. 2021); Scotusblog page (including links to briefs and commentary)

This is a guest post by Attorney Matthew Giesfeldt of the Madison Appellate office, who is also the SPD’s Family Defense Practice Coordinator.

The Indian Child Welfare Act, or “ICWA,” is a federal law enacted in response to concern that nontribal public and private agencies were removing Native American children from their homes to non-tribal placements at “an alarmingly high percentage[.]” Slip op. at 2. Wisconsin codified ICWA as state law in 2009. Wis. Stat. § 48.028. Under both the federal and state statutes, agencies that place children out of the home (such as local child-protection agencies) must adhere to stricter requirements to remove a tribal child than they must follow to remove a non-tribal child. For example, tribes may intervene in child placement cases, and agencies seeking to remove tribal children from tribal homes must engage in “active efforts” to help the parents and prevent the removal. Wis. Stat. § 48.028(4)(e)2.

In these consolidated cases, the biological parents and each foster parent couple seeking to adopt agreed that a tribal child should be adopted by nontribal parents, but a tribe intervened in opposition to the others’ plans. The parents filed a federal suit challenging ICWA, which three states joined. In one of the cases, the adoption was denied based upon the tribe’s intervening objection, though in the other two cases the tribe ultimately abandoned its objection, allowing the adoption to go through. Slip op. at 6-8.

The Court addressed four separate constitutional challenges to ICWA:

State v. S.S.M., 2022AP524 & 2022AP525, District 1, 8/2/22 (one-judge decision; ineligible for publication); case activity

Under § 48.415(intro.), termination of parental rights to children subject to the Indian Child Welfare Act (ICWA) requires, in addition to proof of one or more grounds for termination under subs. (1) to (10), proof of “active efforts,” as defined in § 48.028(4)(e)2., to prevent the breakup of the family as well as the unsuccess of those efforts. S.S.M., whose children are not subject to the ICWA, argues that the statute’s failure to require proof of active efforts in all TPR cases violates the right to equal protection the statute because it gives Indian parents greater protection from having their parental rights involuntarily terminated than it does non-Indian parents. The court of appeals rejects the claim.

Kewaunee County DHS v. R.I., 2018 WI App 7; case activity

Following the lead of the U.S. Supreme Court, the court of appeals holds that the additional fact finding mandated in TPR proceedings involving an Indian child don’t apply when the parent never had physical or legal custody of the child.

Adoptive Couple v. Baby Birl, USSC No. 12-399, reversing and remanding 298 S.C. 625, 731 S.E.2d 550 (2012).

SCOTUSblog coverage here.

TPR lawyers, this one is for you.

The dissent says the casual reader of the majority opinion could be forgiven for thinking that Indian Child Welfare Act of 1978 points to only one sensible result.  See what you think.

Unwed mom became pregnant with the child of dad,

Jackson Co. DHS v. Robert H., 2011AP2783, District 4, 7/17/12

court of appeals decision (1-judge, ineligible for publication); case activity

Both federal and state Indian Child Welfare Acts require that termination of parental rights to an Indian child be supported by testimony of a qualified expert witness “that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child,” 25 U.S.C.

 “Qualified Expert Witnesses” Requirement

Issue: Whether the social worker expertise “beyond the normal” is required to qualify as an expert within the meaning of the ICWA, 25 U.S.C. § 1912(f).

Holding:

¶37 Because in D.S.P. the court affirmed an exercise of the circuit court’s discretion, we do not read D.S.P. to hold that 25 U.S.C. § 1912(f) requires that social workers must have qualifications comparable to those of the two testifying there.

Monroe County DHS v. Luis R., 2009 WI App 109

Issue: Whether ICWA, 25 U.S.C. § 1912(f), which requires likely serious emotional or physical damage to the child from continued parental custody, applies to placement outside the parental home when the TPR proceeding is initiated.
Holding:

¶18 The ICWA does not preempt the Wisconsin Children’s Code, and Wisconsin statutes can be harmonized with the federal law by applying any state law safeguards beyond those mandated by the ICWA.