Alaska ICWA Case on Qualified Expert Witness and Guardianship

The Opinion case is Jude M., Appellant versus State of Alaska Department of Health & Social Services, Office of Children’s Services, Appellee by the Supreme Court of the State of Alaska.

The leading question was whether a long term Guardianship is more like a foster care placement or a termination of parental rights. It was affirmed legal Guardianship was deemed more similar to a foster care placement and therefore, required the testimony of a “qualified expert witness.” However, the reach of the court’s opinion is limited by the legal framework of ICWA.

My analysis in “An Alternative to the Indian Child Welfare Act” is still valid. First and foremost, voluntary legal Guardianship is an alternative to ICWA (when the court has not yet assumed ANY jurisdiction over the child) and ICWA is not triggered in cases “that do not operate to prohibit the child’s parent or Indian Custodian from regaining custody of the child upon demand.” For all intents and purposes, the court stepped into the father’s parental shoes, effectively super-ceding his parental rights which allowed the court to order the legal Guardianship placement.

The child was found to be an Indian child by the definition of the Indian Child Welfare Act (ICWA). “Father appealed a Superior Court order that granted long-term Guardianship of his daughter to maternal relatives in another state.” Office of Child Services (OCS) petitioned to terminate the father’s parental rights in August 2012 for essentially child abuse and by April 2014, five of the six elements required for termination had been found. While the court didn’t terminate, it was nevertheless de facto termination. The lower court had found the father’s parental rights had been effectively “suspended” because of the child’s status as needing legal intervention and the father was not allowed to have unsupervised contact under the terms of his probation. By that point, there was no negotiating or demanding that his child be returned to his custody.

What is most important to note is that there is a clear history of state intervention. The court essentially found that it had sufficient jurisdiction over the child to allow the court to act within a quasi-parental role. If a voluntary legal Guardianship had already been in effect, the state could not take legal custody.

There is an interesting, unpublished Indian Custodian case out of California deserving special attention. In Riverside County Department of Public Social Services versus J.B. the mother, a member of Citizen Potawatomi Nation claimed she had transferred custody of her minor children to the paternal Grandmother (prior to the state taking jurisdiction over the children). California State Welfare Department was seeking to terminate the mother’s parental rights.

Citizen Potawatomi Nation had created a custodial status called Indian Custodian and the procedure to establish it. As a result of the conflicting information from the Grandmother and Mother regarding which party actually had (legal) control over the minor children, DSS argued that the status of Indian Custodian had not been conferred. As a result of that uncertainty, the state’s jurisdiction was triggered and child removal from the home occurred. In fact, the only problem that the court had with the Indian Custodian status was the lack of evidence or writing to confirm its legitimacy.

I am available for consultation and would like to share more about my findings upon request. Helen Nowlin, Attorney and CEO Educational Family Estate Apps.

Stop state based removal of American Indian children (under the Indian Child Welfare Act)

Through Educational Family Estate Apps, I offer an  important discussion about how to avoid state based removal actions under the Indian Child Welfare Act.

Indian Child Welfare Act was sold as change but in fact, it solidified the status quo. After years of violations by the states, nothing changed since its inception and implementation. Have you ever wondered why?

Goldwater Institute intentions against the Indian Child Welfare Act started as early as 2010

Problems versus Solutions ~

I researched the Goldwater Institute’s website as soon as I received the announcement headline: Goldwater Institute intends to challenge the Indian Child Welfare Act, in parts or entirety as unconstitutional.

It seems that this recent revelation by persons in the law and related child welfare organizations about the intentions of the Goldwater Institute to dismantle the Indian Child Welfare Act is itself misleading. The Goldwater Institute posted A.D. v. Washburn on its website originally in 2010. I searched its website yesterday, and found only three results under the topic of the Indian Child Welfare Act.

One was an article published by an Institute author, Mark Flatten, and was called Death on a Reservation dated on July 06, 2010 and A.D. v. Washburn published on July 07, 2010. The more recent activity was titled Indian Child Welfare Act Case Inquiry, published originally on May 26, 2015. It is a questionnaire which intends to fetter out the “rights” of the adoption or temporary or more permanent placement foster parents, not the birth parents or tribes, as based on the types of questions asked. It reminds me of another site I stumbled upon which deceptively seemed to be pro – ICWA but in fact it wasn’t (see http://www.caicw.org/familystories.html).
That is, the Institute had no other publicly available activity on its website until the announcement it made on July 07, 2015 (http://goldwaterinstitute.org/en/work/topics/constitutional-rights/equal-protection/goldwater-institute-files-class-action-lawsuit-aga/). Could it be what is really going on here is industrial process, money and job security?

Question is why are we just now being informed of this threat and intention to further undermine American Indian children (more of the same treatment by a system which allows innocent children to be treated like ardent criminals), their biological families and tribes? The green flag for any attack, whether frontal or collateral was the announcement by the Bureau of Indian Affairs it would seek to finally revise and “strengthen” enforcement of the Indian Child Welfare Act. After all, everyone knows the adoption industry is especially lucrative.

No one it seems is interested in asking children what they want. Indian children have a right to ask us why are the conditions on Indian Reservations the way they are – children intuitively know the obvious. The reasons are as much an outside problem as an inside one. The problems mask and help us to avoid addressing acts of socio-economic discrimination, genocide, dehumanizing conditions and grotesque acts of land theft. Christians should be praying that the parents will make better choices but also that the American society will wake up. Besides the distrust of the system, those children grow up to be adults who will have contempt for the society which allowed those abuses against their families and more importantly, allowed the bubble to be popped of “what could have been.” Remember that if you remove the hook of the Devil, he can’t retain his hold on you. Is there anyone who has a viable solution?

The ICWA was sold as a change but in fact since its inception in 1978, it maintained the status quo. Violation after violation and we are just now having this discussion. The real news is that there is an alternative! My idea is part of the debut of my new product, Educational Family Estate Apps (www.educationalfamilyestateapps.com). Look under Our Products in the menu and then click American Indian Probate for a synopsis of my findings.

Announcement: Goldwater Institute to File a Constitutional Challenge against the Indian Child Welfare Act

Goldwater Institute (out of Phoenix, Arizona) is setting up a constitutional challenge against the Indian Child Welfare Act! What is the real agenda?
“Phoenix—Tomorrow, Tuesday, July 7, the Goldwater Institute will launch a new project to reform the Indian Child Welfare Act and similar state laws that give abused and neglected Native American children fewer rights and protections than other American children. Part of this project will be a class action lawsuit.
“When an abused child is removed from his or her home and placed in foster care or made available for adoption, judges are required to make a decision about where the child will live based on the child’s best interest. Except for Native American children. Courts are bound by federal law to disregard a Native American child’s best interest and place the child in a home with other Native Americans, even if it is not in his or her best interest,” said Darcy Olsen, president of the Goldwater Institute.”

We saw this coming before it happened! Purchase a subscription to Educational Family Estate Apps American Indian section and we will tell you how to protect yourself, your children and tribal communities! There is an alternative that can prevent illegal state removal actions. View our website at www.educationalfamilyestateapps.com.

State based removal authority in the Indian Child Welfare Act can be circumvented!

…the beat goes on….It is time to empower American Indians and tribes to circumvent the Indian Child Welfare Act which allows state removal of Indian children. I tell people how to do just that and disclose my research in the American Indian Section of Educational Family Estate Apps. There will be no need then for apologizes.

See our website at http://www.educationalfamilyestateapps.com.

http://www.theglobeandmail.com/news/national/manitoba-to-apologize-to-aboriginal-adoptees-thursday/article25012979