Slide 1

COLOR BLINDNESS OR CULTURALLY CONSCIOUS? National Association of Counsel for Children ConferenceSan Diego, CaliforniaTracy Mills and Martha Pierce

August 31, 2011ICWA vs. MEPA-IEP

1Part I:ICWA: Culturally ConsciousCongressional Findings:

Four TYPES of Child Custody Proceedings

Four Types of Child Custody Proceedingsfoster care placement which shall mean any action removing an the child returned upon demand, but where parental rights have not been terminated; Child custody proceeding shall mean and include,1.preadoptive placement which shall mean the temporary placement of an Indian child in a foster home or institution after the termination of parental rights, but prior to or in lieu of adoptive placement; 2.3.4.termination of parental rights which shall mean any action resulting in the termination of the parent-child relationship; and adoptive placement which shall mean the permanent placement of an Indian child for adoption, including any action resulting in a final decree of adoption. 25 U.S.C.A 1903

Indian Child:A Political DefinitionIndian child means any unmarried person who is under age eighteen and is either a member of an Indian tribeORis eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe; 25 U.S.C.A. 1903 (4)

Basic Components of ICWAExclusive vs. Concurrent Jurisdiction

EXCLUSIVE JURISDICTION

WHEN THE INDIAN CHILD . . .

Resides or is domiciled on the reservation; or

Is a ward of the tribal court.

Parent who resides on reservation cannot subvert this requirement by fleeing reservation to give birth or to relinquish.

This was the case in Holyfield and Holloway.

9Concurrent (presumptive)JurisdictionEverything elseCONCURRENT JURISDICTIONTribe has right to request transfer to tribal court only for foster care or terminations.

Transfer required absent good cause.

Reasons not to transfer: No tribal court;A parent objects;Tribe declines;Good cause.Good Cause Not to TransferParent vetoes transfer.

Advanced stage of proceedings.

Tribe has not court.

BIA Guidelines suggests child has a voice.

Forum non conveniens arguments.

13Intervention vs. TransferTribe may intervene in foster care or termination proceeding at any time.

Tribes participation is prospective.

May intervene in other proceedings using state civil rules). 25 U.S.C.A. 1911 (c)Placement Preferences

The Heart of ICWAFoster or Preadoptive PlacementsLeast restrictive.Most approximates a family.Meeting special needs.Within reasonable proximity to childs home.Foster or preadoptive placementsMember of extended family (whether or not Native American).Tribe authorized foster home.Licensed Indian foster home (whether or not of childs tribe).Tribe-authorized institution.Adoptive Placements . . .Extended family member.Tribal member.Other Indian families.

Preferences may be modifiedPer tribal resolution;Per childs preference;Per parents preference;Where parent requests anonymity.QUALIFIED EXPERT WITNESS,HIGHER STANDARD OF PROOFTo support one finding:

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.ACTIVE vs REASONABLE EFFORTSICWA categorizes politically, not racially or culturally.a child can be 100% genetic Native American and not be an "Indian Child."

a child can be 100% genetic non-Native American and be an "Indian Child."

ICWAs IMPLICIT VALUESCollective rights, child has right to belong.

Sovereignty, self-determination.

Best Interests code for middle class values.

Values of culture, tribe best passed on within tribe.

Where Child is Native American,but not politically Native American.What is the default position?

Part II:MEPA-IEP MULTI-CULTURALISM

MEPA & MEPA-IEPMEPA = Multiethnic Placement Act.42 USC Sec. 5115a (1994) (repealedexception swallowed the rule)

MEPA-IEP = Interethnic Placement Act.42 USC Sec. 1996b (1996)

MEPA I, 42 U.S.C. Sec. 1994 (1994) (repealed).

Applies to foster care or adoption.

Prohibits categorical denial or placement based solely on race, color, or national origin.

Permits consideration of cultural, ethnic, or racial background of child and cultural capacity of care giver.

MEPA-IEP, 42 U.S.C. Sec. 1996b (1996) Applies to foster care or adoption.

Prohibits discrimination of care giver on race, color, or national origin of child or parent.

Prohibits denial or delay of placement based on race, color or national origin.

Noncompliance can result in agency fine or civil rights action

Part III: Same ChildOpposing Best Interests

MEPA-IEP vs. ICWAICWAApplies to foster care, adoption.Enforcement = possible reversal.

Culturally conscious.

MEPA-IEPApplies to foster care, adoption.Enforcement includes agency sanctions, civil rights action.Color-blind application.30ICWA VALUESChild presumed to have cultural needs.Child is part of collective.Childs placement is in part reparative.Racial, cultural categorization inevitable.Child needs role model from same racial/ethnic group.Extended family modelMore deliberative.

MEPA-IEP VALUESSwift permanency in nuclear family model.

Race blind individualism.

Childs needs trumps notions of fairness.

Child should not be permanently categorized.

Persons of all races presumed to be able to care for children of all races.

Part IV: The Voice of the Child.How ICWA, MEPA-IEP, ABA, NACC listen to the Child.

ICWA ALLOWS FOR THE CHILDS VOICERequiring appointment of counsel contemplates . . .The Childs interests does not always track the Tribes.The Child is a party.The Childs voice should be heard.The Child is a fully formed person.ICWA PLACEMENT PREFERENCES andTHE CHILDs VOICE.No age limit.No need for preference to be verbalized.Child needs must be accommodated.Childs need for home-like place.Childs need for place near home.

Jurisdictional Transfers andThe Childs Voice.BIA Guidelines.Forum non conveniens may look at convenience to the child.

Childs Voice andthe Qualified Expert WitnessGoes solely to whether continued custody by the parent Indian custodian is likely to result in serious emotional or physical damage to the child.MEPA-IEP & Childrens ParticipationPlacement, permanency based on unique needs of child, not race, ethnicity.NACC / ABA STANDARDSChilds counsel toEnsure childs physical presence in proceedings.Ensure courts hear and consider unique childs views.Advocate for permanency.Advocate for family relationships.Recommended reading includes books advocating primary attachment / psychological parent theory.

Part V: The Childs Preferences

A child, your child client isMore complex than what the law implies.More nuanced.More evolving.More in need.

Childs Expressed Preference . . .Is a moving target.Is fluid, evolving.Is influenced by conflicting loyalties, changing needs.Should be globally determined over time.

Your child client will tell you by . . . Words, in conversation, over time.Words from medical reports, police reports, court reports.Actions.Facial expression.Artistic and other expression.Flourishing and faltering.

Art Work, Home Work . . .

Even infants express preferences . . . Quality of an attachment.Thriving.Failing to thrive.Respiration.Gaze.Sucking response.

Part VI: PARTICIPATION

CHILDRENs PARTICIPATIONIncreases their satisfaction with the outcome.Increases their self esteem.Affirms their sense of dignity and hope.Increases others satisfaction with the outcome.

CHILDRENs PARTICIPATION ENDORSED BYASFAICWAThe ABA.The NACC.The Pew Commission.The UN Commn on Rights of Child.Native American tradition.

Getting the judge to hear the childs voice by . . . Having the child at all hearings.Highlighting the childs voice and words as they appear in the documents.Leaving a photo, artwork with the judge.

Getting the judge to hear the child by. . . Highlighting when the Child flourishes, falters.

Highlighting Childs non-verbals.

Submitting Childs art, homework.pressions.

Part VII: THE TAKE AWAY

51THE TAKE AWAY: The LAWIndian Child is a political designation.

MEPA-IEP is the default position when the child does not fall in the political category of Indian Child--no delay in placement or permanency based on race, culture, ethnicity.

THE TAKE AWAY: THE PRACTICEThe Child is the Constant.Preferences are communicated holistically.Participation is key.

THE END

54