COLOR BLINDNESS OR CULTURALLY CONSCIOUS?

National Association of Counsel for Children ConferenceSan Diego, California

Tracy Mills and Martha Pierce

August 31, 2011

ICWA vs. MEPA-IEP

Part I:

ICWA: Culturally Conscious

Congressional Findings:

FOUR TYPES OF CHILD CUSTODY PROCEEDINGS

Four Types of Child Custody Proceedings

foster 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 Definition

INDIAN CHILD means any unmarried person who is under age eighteen and is either a member of an Indian tribe

ORis 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.

Concurrent (“presumptive”)Jurisdiction

Everything else

CONCURRENT JURISDICTION

• Tribe 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 Transfer

1. Parent vetoes transfer.

2. Advanced stage of proceedings.

3. Tribe has not court.

4. BIA Guidelines suggests child has a voice.

5. Forum non conveniens arguments.

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

•Tribe’s participation is prospective.

•May intervene in other proceedings using state civil rules).

25 U.S.C.A. § 1911 (c)

Placement PreferencesThe Heart of ICWA

Foster or Preadoptive Placements

• Least restrictive.• Most approximates a family.• Meeting “special needs.”• Within reasonable proximity to child’s home.

Foster or preadoptive placements

1. Member of extended family (whether or not Native American).

2. Tribe authorized foster home.3. Licensed Indian foster home (whether or not

of child’s tribe).4. Tribe-authorized institution.

Adoptive Placements . . .

1. Extended family member.2. Tribal member.3. Other Indian families.

Preferences may be modified

• Per tribal resolution;• Per child’s preference;• Per parent’s preference;• Where parent requests anonymity.

QUALIFIED EXPERT WITNESS,HIGHER STANDARD OF PROOF

• To 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 EFFORTS

ICWA 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."

ICWA’s IMPLICIT VALUES

• Collective 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-IEP

• MEPA = Multiethnic Placement Act.• 42 USC Sec. 5115a (1994) (repealed—

exception 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 Child

Opposing Best Interests

MEPA-IEP vs. ICWA

ICWA• Applies to foster care,

adoption.• Enforcement = possible

reversal.

• Culturally conscious.

MEPA-IEP• Applies to foster care,

adoption.• Enforcement includes

agency sanctions, civil rights action.

• Color-blind application.

ICWA VALUES

• Child presumed to have cultural needs.• Child is part of collective.• Child’s placement is in part reparative.• Racial, cultural categorization inevitable.• Child needs role model from same

racial/ethnic group.• Extended family model• More deliberative.

MEPA-IEP VALUES

• Swift permanency in nuclear family model.

• Race blind individualism.

• Child’s 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 CHILD’S VOICE

• Requiring appointment of counsel contemplates . . .– The Child’s interests does not always track the

Tribe’s.– The Child is a party.– The Child’s voice should be heard.– The Child is a fully formed person.

ICWA PLACEMENT PREFERENCES andTHE CHILD’s VOICE.

• No age limit.• No need for preference to be verbalized.• Child needs must be accommodated.• Child’s need for home-like place.• Child’s need for place near home.

Jurisdictional Transfers andThe Child’s Voice.

• BIA Guidelines.• Forum non conveniens may look at

convenience to the child.

Child’s Voice andthe Qualified Expert Witness

• Goes 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 & Children’s Participation

• Placement, permanency based on unique needs of child, not race, ethnicity.

NACC / ABA STANDARDS

• Child’s counsel to– Ensure child’s physical presence in proceedings.– Ensure courts hear and consider unique child’s

views.– Advocate for permanency.– Advocate for family relationships.– Recommended reading includes books advocating

primary attachment / psychological parent theory.

Part V: The Child’s Preferences

A child, your child client is

• More complex than what the law implies.• More nuanced.• More evolving.• More in need.

Child’s 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

CHILDREN’s PARTICIPATION

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

outcome.

CHILDREN’s PARTICIPATION ENDORSED BY

• ASFA• ICWA• The ABA.• The NACC.

• The Pew Commission.• The UN Comm’n on Rights of Child.• Native American tradition.

Getting the judge to hear the child’s voice by . . .

• Having the child at all hearings.• Highlighting the child’s 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 Child’s non-verbals.

• Submitting Child’s art, homework.pressions.

Part VII: THE TAKE AWAY

THE TAKE AWAY: THE LAW

“Indian 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 PRACTICE

•The Child is the Constant.•Preferences are communicated

holistically.•Participation is key.

THE END