08/25/2009

IN THIS ISSUE

1. Policy Spotlight: Child Welfare Attorneys Need to Know About the Fostering Connections to Success and Increasing Adoptions Act
2. Court Opinions: In re Interest of Leslie S. et al.
3. Legislative Update: Child Welfare Interim Studies
4. Announcements: NEW Appleseed Blog and Upcoming Conferences

POLICY SPOTLIGHT

Child Welfare Attorneys Need to Know About the Fostering Connections to Success and Increasing Adoptions Act

In the fall of 2008, the U.S. Congress passed and President George W. Bush signed into law the Fostering Connections to Success and Increasing Adoptions Act. This new law has been hailed as the most significant federal child welfare reform in over a decade. Most of the provisions went into effect on October 7, 2008, although some key provisions will be phased in over the next few years. Of the provisions currently in effect, many have practical implications of which child welfare attorneys should be aware.

This month’s Policy Spotlight, outlining the practical implications of the new Fostering Connections Act, is provided as a separate attachment. Click here to read the Policy Spotlight.

As noted below, Appleseed is currently working with Nebraska State Sen. Kathy Campbell on an interim study examining the implementation of the federal Fostering Connection to Success and Increasing Adoptions Act. We hope to have the input and involvement of a broad range of advocates and stakeholders about the implementation of this new federal law in Nebraska. Please contact us about to share your thoughts and experiences!

COURT OPINIONS

In re Interest of Leslie S. et al., 17 Neb. App. 828 (2009).http://bit.ly/MNUt9
Decided August 4, 2009

The Nebraska Court of Appeals affirmed a juvenile court’s denial of a motion to transfer an Indian Child Welfare Act (ICWA) case to the tribal court, finding no abuse of discretion in the juvenile court’s determination of good cause based on the advanced stage of the proceeding (two years after the (3)(a) petition was filed and subsequent to the filing of a TPR petition) and the fact that the state court still had jurisdiction over pending truancy, delinquency, and another non-ICWA (3)(a) petition involving the children in the case which presented a forums non conveniens issue.

In July 2006, the state filed a juvenile petition alleging that the six children of Kinda and two children of Francis came within the meaning of Neb. Rev. Stat. § 43-247(3)(a). Both Kinda and Francis as well as the children are enrolled members of the Omaha Tribe. In November 2006, the Omaha Tribe filed a notice of intent to transfer the case to the Tribal Court, pursuant to ICWA. The juvenile court denied the motion based on the mother’s objection. Subsequently, the state filed a § 43-247(3)(b) petition based on truancy for Leslie, the daughter of Kinda, but not Francis. The Omaha Tribe did not request to transfer the truancy case to tribal jurisdiction. A delinquency case was also filed involving Glory, also the child of Kinda, but not Francis. Finally, a (3)(a) case was also subsequently filed involving Leslie’s child, who was made a ward of the state but is not eligible for enrollment with the tribe. In October, 2008, Francis filed a motion to transfer the initial (3)(a) juvenile case (involving his children) to the tribe. The next day, the tribe filed a second notice of intent to transfer. Prior to the hearing being held on the transfer motion, a TPR petition was filed against both parents. At the hearing on the transfer motion, Francis made a statement that he wished the case to be transferred so that he could work with Native counselors, attorneys, and judges. He had also had disagreements with the state’s caseworker and refused to work with her. At the time of the hearing, Francis faced pending criminal charges and acknowledged that he had an addiction to drugs and alcohol but expressed a desire to take responsibility. Francis also acknowledged that, if the case was transferred, he would have to participate in similar programs which he had failed to participate in while the case was under the state court’s jurisdiction. The mother did not object to the second transfer motion. She indicated that she objected to the first transfer motion because she thought she would be reunited more quickly with her children if the case was under state court jurisdiction. The caseworker testified that the three older children (two of which were at least 15 years old and the other was 12 years old) expressed a desire to have the case transferred. The caseworker also testified that she developed a cultural plan with the foster parents to expose the children to tribal activities and books.

The juvenile court judge denied the transfer motion finding good cause had been shown to prevent the transfer because the issue had been previously litigated and overruled and because the juvenile court would continue to have jurisdiction over the truancy and delinquency and non-ICWA (3)(a) case even if the present (3)(a) case was transferred. The juvenile court also expressed that the parents waited two years after the initial transfer motion to seek another transfer and that it was not in the children’s best interest to transfer at this late stage in the proceedings. Francis appealed alleging that the denial of the transfer motion was an abuse of discretion. Specifically, Francis argued that good cause did not exist because the previous transfer motion was not fully and fairly litigated, that the case was not at an advanced stage, and that jurisdiction over the other juvenile cases was not an appropriate basis for denial.

In its review, the Court of Appeals noted that the party opposing a transfer of jurisdiction to a tribal court has the burden of showing that good cause not to transfer exists. The Court of Appeals also noted that the fact that a state court may take jurisdiction under the Indian Child Welfare Act does not necessarily mean that it should do so, as the court should consider the rights of the child, the rights of the tribe, and the conflict of law principles, and should balance the interests of the state and the tribe. The Court of Appeals went on to state, however, that ICWA statute does not define good cause, but that the Bureau of Indian Affairs (BIA) sets forth nonbinding guidelines for determining whether good cause exists. The guidelines state that good cause not to transfer may exist if “[t]he proceeding was at an advanced stage when the petition to transfer was received and the petitioner did not file the petition promptly after receiving notice of the hearing.” Guidelines for State Courts; Indian Child Custody Proceedings, 44 Fed. Reg. 67,584, 67,591 (Nov. 26, 1979). Based in part on this information, the Court of Appeals found that the juvenile court’s denial of the transfer motion was not an abuse of discretion. Specifically, the Court of Appeals reiterated that Francis did not file the transfer motion until two years after the (3)(a) petition was filed and that, during the two years, the father did very little to participate in the case. The Court of Appeals also noted that, at the time of the hearing on the motion to transfer, a TPR petition had been filed. Finally, the Court of Appeals stated that the fact that there were other pending juvenile cases under the jurisdiction of the state court essentially presented a forum non conveniens issue, which is another basis for good cause.

Legislative Action

Child Welfare Interim Studies

Appleseed is monitoring a number of interim studies introduced this year relating to child welfare. Click here for a list of child welfare interim studies. In particular, Appleseed is currently working with Sen. Campbell’s office on an interim study examining the implementation of the federal Fostering Connection to Success and Increasing Adoptions Act. Appleseed is also working with Sen. Coash and the Judiciary Committee on an interim study examining the central register process. We hope to have the input and involvement of a broad range of advocates and stakeholders on both of these studies. Please contact us about to share your thoughts and experiences!

Note: This is not an exhaustive list of legislation. The legislation in this update is selected by Appleseed as those raising systemic issues in the child welfare system.

ANNOUNCEMENTS

NEW Appleseed Blog!

Appleseed recently launched a blog where you can read daily updates about our work to positively impact low-income families, immigrants, children in foster care, and access to health care. Child welfare posts generally appear every Wednesday. Stop by and check it out! Read, comment, and share your own stories with us at: http://www.neappleseed.org/blog

Upcoming Conferences

Appleseed’s Foster Care Reform Legal Resource Center will have a table at the 2009 Children’s Summit in Grand Island, Wednesday, September 9th through Friday, September 11th. Please stop by and say hi, and pick up copies of resources relevant to your juvenile court practice!

Nebraska State Bar Association 2009 Annual Meeting, Wednesday, October 14th through Friday, October 16th, Doubletree Hotel, Omaha.

Complex Issues in Juvenile Court Practice II, Friday, October 23rd, Creighton University School of Law.

We invite you to contact us if Appleseed can be of any assistance on systemic issues that arise in your practice. I may be reached at shelvey@neappleseed.org or (402) 438-8853, ext. 106.

Sarah Helvey
Program Director / Staff Attorney
Child Welfare System Accountability Program

For more information about the Child Welfare System Accountability Project, please visit: http://www.NeAppleseed.org/children

For more information about Nebraska Appleseed, please visit: http://www.NeAppleseed.org

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