For working links, refer to retiring site:


 – Because finding an attorney that is knowledgeable in Indian law and willing to take these types of cases has proven difficult for many in our position, we are providing our Case Law site, ICWA law site, and annotations of  the 14th amendment as resources for information, meant to assist lawyers or caregivers in finding what they are looking for, not as a means of giving specific legal advice.  We are not attorneys.   Parents and care-givers should consult a lawyer for all child custody issues.


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  1. U.S. SUPREME COURTMeyer v. State of Nebraska,325, Decided June 4, 1923.“…the right of the individual to … establish a home and bring up children, to worship God according to the dictates of his own conscience,… long recognized … as essential to the orderly pursuit of happiness by free men””…and it hardly will be affirmed that any Legislature could impose such restrictions upon the people of a state without doing violence to both letter and spirit of the Constitution.” “…the individual has certain fundamental rights which must be respected. The protection of the Constitution extends to all…”
  2. U.S. SUPREME COURT Pierce v. Society of the Sisters,Decided June 1, 1925.“The child is not the mere creature of the state; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations,” “…the liberty of parents and guardians to direct the upbringing and education of children.”
  3. U.S. SUPREME COURTBrown v. Board of Education, Decided May 17, 1954.“Segregation is a denial of the equal protection of the laws,”
  4. U.S. SUPREME COURTMississippi Choctaw Indian Band v. Holyfield, et al. , April 3, 1989, Definition of “domicile” under the Indian Child Welfare Act / Parental Rights diminished. First case in which the federal high court has construed ICWA. Link to William B. Allen article concerning this case.
  5. ALASKAIn the Matter of F.P., W.M. and A.M, December 18, 1992, Tribal Jurisdiction questioned
  6. CALIFORNIAIn re Bridget R. (1996) 41 Cal.App.4th 1483 (Bridget R.). , James R. and Colette R. v. Cindy al., January 19, 1996,”The Pomo Twins”, IMPORTANT The “Existing Indian Family” Doctrine, Constitutional Limitations upon the Scope of ICWA, Due Process, Equal Protection, and The Indian Commerce Clause and The Tenth Amendment.
  7. CALIFORNIA In re Alexandria Y. (1996), Decided May 31, 1996, IMPORTANT The “Existing Indian Family” Doctrine, “neither Alexandria nor Renea had any significant social, cultural or political relationship with Indian life; thus, there was no existing Indian family to preserve.”
  8. MONTANAIn the Matter of the Adoption of Riffle, Decided July 30, 1996, Child’s “Constitutional Rights”, “Best Interests”, and “Good Cause”.
  9. NINTH CIRCUIT COURT Native Village of Venetie Ira Council v. Alaska , September 17, 1998, “Full Faith and Credit” given to adoption decrees issued by Tribal Courts
  10. MONTANA In re Marriage of Skillen March 3, 1998, “Indian jurisdiction” law in relationship to UCCJA and PKPA
  11. MONTANAIn Matter of A.P., Youth in Need of Care , July 16, 1998, Successful “Good Cause”, Adoption of Riffle cited, 25 U.S.C. § 1911(b) discussed
  12. MONTANAIn the Matter of the Adoption of H.M.O. July 16, 1998, “Qualified Expert Witnesses”
  13. MONTANAIn the Matter of K. H. & K. L. E., Youths in Need of Care , June 3, 1999 (briefs only)
  14. MONTANAIn re T.A.G., Youth in Need of Care , June 15, 1999, Successful “Good Cause”
  15. MONTANAM.P.M. and A.R.M., Youths in Need of Care., April 20, 1999, “Qualified Expert Witnesses”
  16. MONTANAIn the Matter of C.H., Youth in Need of Care, March 16, 2000, Unsuccessful “Good Cause”
  17. MINNESOTAIn the Matter of the Welfare of: S.N.R. , September 1, 2000, Determination that a Child is a Tribal Member
  18. CALIFORNIAIn re SANTOS Y., a Person Coming Under the Juvenile Court Law2001,IMPORTANT RULING re the “Existing Indian Family” Doctrine, Constitutional Limitations upon the Scope of ICWA, Due Process, Equal Protection, and The Indian Commerce Clause and The Tenth Amendment. Link to Thomas Sowell article concerning this case.
  19. OKLAHOMAIn the Matter of Child, B.R.W. September 19, 2003, The “Existing Indian Family” Doctrine
  20. ALASKAIn the Matter of the Adoption of Keith M.W. October 31, 2003, Voluntary Relinquishment of Parental Rights, Good Cause
  21. CONNECTICUT In the Interest of MAKAILA A., a person under the age of eighteen years. December 19, 2003, “Termination of Parental Rights”
  22. MINNESOTA Roy E. GERBER v. Phyllis EASTMAN January 20, 2004, “Child Custody Proceeding, ” defined, IMPORTANT – FOUR PRONGS OF ICWA discussed and agreed upon.
  23. NINTH CIRCUIT COURTMary Doe v. Arthur Mann July 19, 2005, IMPORTANT 9th CIRCUIT RULING – Good news for Public law 280″ States: Alaska, California, Minnesota, Oregon, Nebraska and Wisconsinl, as well as possibley Washington and Idaho; giving those States jurisdiction over children NOT living on the reservation.




Brief summary of the ICWA’s Legislative History. Extensive Legislative hearing record is available on hardcopy. Will be transcribing parts as time allows

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Compiled by B.J. Jones..– Chief Judge-Sisseton-Wahpeton Sioux Tribal Court, Director-Northern Plains Tribal Judicial Institute-University of North Dakota Law School (note*)

Circa 2004, Accessed Online Aprl 29, 2007, at

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A. Status of Tribe

1. In Interest of C.H., 510 N.W.2d 119 (S.D. 1993) (on remand Court holds that Mowa Band of Choctaw Indians is a federally recognized Tribe for ICWA purposes).

2. In re M.C.P., 153 Vt. 275, 571 A.2d 627 (Vt. 1989) (member of Micmac Tribe of Indians not Indian); see also In re A.J., 733 A.2d 36 (Vt. 1999).

3. In re John V. , 5 Cal. App. 4th 1201, 7 Cal. Rptr. 2d 629 (Cal. App. 6 Dist. 1992) (Creoles not Indians).

4. In re Interest of J.L.M., 451 N.W.2d 377 (Neb.1990) (In decision prior to restoration of Nebraska Poncas, Court holds that Ponca child not Indian).

5. In re Wanomi P. , 264 Cal. Rptr. 623 (Ct. App. 2 Dist.1989); In the Matter of T.I.S., 586 N.E.2d 690 (Ill. App. 1 Dist. 1991); In re Stairwalt, 190 Ill.App. 3d 547, 546 N.E.2d 44 (Ill. App. 2 Dist. 1989) (Canadian Tribes not Indians for ICWA); but see Matter of Adoption of Linda J., 682 N.Y.S. 2d 565 (NY Family Court 1999)(Court holds that Canadian Indian entitled to have her adoption records released to Canadian band under ICWA).

6. Matter of Adoption of Christopher, 662 N.Y.S. 2d 366 (N.Y. 1997)(native village in Alaska that is not federally recognized not entitled to treatment as Indian tribe under ICWA.)

7. People ex rel. P.A.M., 961 P.2d 588 (Col. App. 1998)(Blood Tribe of Canada not an Indian Tribe for purposes of ICWA.)

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B.Status of Child

1. In re Desiree F.,83 Cal. App. 4th 460, 99 Cal. Rptr 2d 688 (Ca. App. 5 Dist. 2000)(Failure to apply ICWA to child that was not enrolled member of Indian tribe [despite] child’s eligibility for membership. Court invalidates all proceedings under 25 USC §1914 for failure to permit Tribe to intervene).

2. In re Adam N., 84 Cal. App. 4th 846, 101 Cal 2d 181 (Cal. App. 3 Dist. 2000)(father’s assertion that he was a Blackfoot (sic) Indian without any other proof did not support notice to the Blackfeet Tribe of Montana); see also In re Brittany Kirk v. Klamath Tribe, 11 P.3d 701 (Or. App. 2000); In re A.S., 614 N.W.2d 393 (SD 2000).

3. Matter of Adoption of Riffle, 922 P.2d 510 (Mont. 1996)(Tribal determination on membership is conclusive.)

4 .Matter of Dependency and Neglect of A.L., 442 N.W.2d 233 (S.D. 1989) (Tribe’s enrollment of Caucasian child invokes ICWA).

5 .Matter of Baby Boy Doe. 849 P.2d 925, 930-931 (Idaho 1993) (Court holds that a state Court must make independent determination of whether child is Indian even if Tribe and BIA are unable to make determination).

6 .Matter of Adoption of Baby Boy W., 831 P.2d 643 (Okla. 1993) (father’s claim that school records show he is Indian not sufficient); Matter of Shawboose, 438 N.W.2d 272 (Mich. App. 1989) (failure of mother to prove enrollment and Tribe to intervene doomed application of ICWA); People In Interest of A.E., 749 P.2d 450 (Col. App. 1987).

7. Quinn v. Walters, 320 Or. 233, 881 P.2d 795 (1994) (Court rejects application of ICWA on ground that only proof of membership was inadmissible hearsay).

8. Matter of Welfare of S.N.R., 617 N.W.2d 77 (C.A. Minn. 2000)(Court holds that tribal determination of membership is conclusive and cannot be collaterally challenged.)

9. In re Carlos G., 74 Cal. App. 4th 1138, 88 Cal. Rptr. 2d 623 (Cal. App. 3d Dist. 1999)(Tribe’s notice that child was not eligible for membership in Tribe conclusive on question of whether ICWA applies.); In re J.O., 743 A.2d 341 (N.J. App. 2000)(reference at status hearing to children as Indian did not trigger ICWA requirements).

10. Interest of A.L. and J.L., 2001 ND 59; 623 N.W.2d 418; 2001(mere allegation by attorney that children are Indian not sufficient to invoke ICWA.)

11. In re C.N., 196 Ill. 2d 181; 752 N.E.2d 1030; 2001 Ill. LEXIS 484; 256 Ill. Dec. 788 (Father’s eleventh hour claim he was Indian not sufficient to invoke ICWA.)

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C.Status of Proceedings

1. Custody Dispute – Application of Defender, 435 N.W.2d 717 (S.D. 1989); In re Custody of Sengstock, 165 Wis. 2d 86, 477 N.W.2d 310 (Wis. App. 1991) (ICWA does not apply to custody disputes between parents).

2.Intrafamily Dispute – Matter of Ashley Elizabeth R. 863 P.2d 45 (N.M. App. 1993); Custody of A.K.H., 502 N.W.2d 79 (Minn. App. 1993)applies to custody dispute between parent and non-parent).See also, In re Guardianship of Q.G.M., 808 P.2d 684 (Okla. 1991); In re Custody of S.B.R., 719 P.2d154 (Wash. App. 1986); J.W. v. R.J., 951 P.2 1206 (AK 1998)(rejects in context of custody dispute between father and stepfather); D.J. v. P.C., 36 P.3d 663 (Alaska 2002)(ICWA applies to proceeding where Indian custodian attempting to terminate parental rights of parent).

3. Minor In Need of Assistance – In Interest of B.B., 500 N.W.2d 9 (Iowa 1993) (ICWA applies to a proceeding in which a mentally retarded Indian child declared minor in need of assistance).

4. Criminal Conduct – State in Interest of T.D.C..,748 P.2d 201 (Utah App. 1988).

5. Late Discovery of Indian Child – Matter of Welfare of B.W., 454 N.W.2d 437 (Minn. App. 1990); People In Interest of A.E., 799 P.2d 450 (Colo. App. 1987); In Interest of C.H., 510 N.W.2d 119 (S.D. 1993) (late discovery that Indian child is involved does not vitiate proceedings, but ICWA applies from that point on); but see, Matter of Adoption of Crews, 825 P.2d 305 (Wash. 1992); see also In re J.D.B., 584 N.W. 2d 577(Iowa App. 1998)(Court holds that failure of Tribe to participate in earlier proceedings prevented court from determining children’s Indian status); Adoption of Jake and Adoption of Brian, 50 Mass. App. Ct. 743; 741 N.E.2d 456 (2001).

6. Arizona Dept. of Economic Security v. Bernini, 48 P.2d 512 (Ariz. App. 2002)(Court erred in applying ICWA standards to emergency shelter care proceeding absent proof children were Indian).

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D. Status of Existing Indian Family Exception to Indian Child Welfare Act

1. Cases That Have Utilized Existing Indian Family Exception

a. In re Bridget R., 1996 Cal. App. Lexis 37 (Cal. Ct. App. 13 Dist. 1996)(Court elevates existing Indian family exception to constitutional dimensions by holding that ICWA does not apply to a child custody proceeding unless natural parents have substantial political, social or cultural ties to their tribe where they are members.)

b. In re Alexandria Y., 45 Cal. App. 4th 1483, 53 Cal. Rptr.2d 679 (Cal. App. 4th Dis. 1996)(Court adopts reasoning of Bridget R. and holds that ICWA does not apply to proceeding where mother is enrolled Seminole Indian but who was raised in non Indian home. Court suggests that Bridget R. is too limiting and that trial court should be able to make determination whether ICWA applies in every case); see also In re Derek W., 73 Cal. App. 4th 828, 86 Cal. Rptr. 2d 742 (Cal. App. 2d Dist. 1999).

c. In Re Crews, 825 P.2d 305 (Wash. 1992). But see Matter of Adoption of M., 832 P.2d 518 (Wash. App. 1992)(Appeals Court refuses to follow Crews in a case where parents of Indian child petitioned to voluntarily terminate parental rights over child who lived most of life in Non-Indian home).

d. In re S.C., 833 P.2d 1249 (Okla. 1992) (Court holds that ICWA does not apply to the foster care placement of an Indian child removed from non-Indian mother); but see, In re Q.G.M.. 808 P.2d 684 (Okla. 1991)(ICWA does apply to dispute between N-I grandparents and I mother).NOTE -the Oklahoma legislature has apparently repealed the Existing Indian family exception.

e. C.S.A. v. F.J.P., 571 So.2d 1187 (Ala. Civ. App. 1990) (child who had been raised by non-Indian mother, aunt and uncle, where Indian father had little involvement not an Indian child).

f. C.E.H. v. L.M.W., 837 S.W.2d 947 (Mo. App. W.D. 1992) (dicta suggests that existing Indian family exception is doctrinally correct).

g .Barbry v. Darzat, 576 So.2d 1013 (La. App. 1991) (Court applies a state law declaring that illegitimate child assumes race of mother to defeat ICWA). See also In re Hampton, 658 So.2d 331 (La. App. 1995)(Court strongly endorses existing Indian family exception); but see Owens v. Willock, 690 So.2d 948 (La. App. 1997)(rejecting existing Indian family exception).

h. Rye v. Weasel, 934 S.W.2d 257 (Ky. 1996)(Court applies existing Indian family exception to Indian child raised by Indian uncle and non-Indian wife of uncle to hold that child never resided in Indian family).

i. Matter of Adoption of Baby Girl S., 690 N.Y.S. 2d 907 (N.Y. 1999).

j. In re Santos Y., 92 Cal. App. 4th 1274; 2001 Cal. App. LEXIS 815; 112 Cal.Rptr. 2d 692; 2001 Cal. Daily Op. Service 8997; 2001 Daily

Journal DAR 11209 (2001)(Court finds ICWA unconstitutional for a variety of reasons including a violation of the 10th amendment; equal protection clause and liberty rights of child.)

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2.Cases That Reject:

a. In re Alicia S., 65 Cal. App. 4th 79, 76 Cal. Rptr. 2d 121 (Cal. App. 5th Dist. 1998).

b. Matter of Adoption of Riffle, 922 P.2d 510 (Mont. 1996)(Court expressly declines to follow California appellate court decisions constitutionalizing existing Indian family exception and rules that ICWA applies regardless of contacts of parents.)

c.. Utah in Interest of DAC, 933 P.2d 993 (Utah App. 1997)(Applies ICWA to intra-family dispute between wife, stepparent and Indian natural father. Strongly rejects the existing Indian family exception).

d. In re Elliott, 218 Mich. App. 196 (Mich. App. 1996)(Court rejects existing Indian family exception to requirement that qualified expert witness testimony be submitted to support a termination of parental rights.)

d. In re Adoption of T.N.F., 781 P.2d 973 (Alaska 1989).

e. In re Coconino County, 737 P.2d 829 (Ariz.App. 1989).

f. In re Adoption of S.S., 622 N.E.2d 832 (Ill. App. 1993) (contains a very thoughtful analysis of the exception. at 835-838).

g. Matter of Baby Boy Doe, 849 P.2d 925 (Idaho 1993).

h. In re Adoption of Lindsay C., 229 Cal.App. 3d 404, 280 Cal. Rptr. 194 (Cal. App. 1 Dist. 1991).

i. In re Oscar C., 559 N.Y.S.2d 431 (Fam Ct. 1990).

j. In re Adoption of Baby Child of Indian Heritage, 543 A.2d 925 (N.J. 1988).

k. Matter of Adoption of Baade, 462 N.W.2d 485 (S.D. 1990).

l. J.W. v. R.J., 951 P.2 1206 (AK 1998)(rejects in context of custody dispute between father and stepfather).

m. Michael J. v. Michael J., 7 P.3d 960 (Ariz. App. 2000).

n. Burks and Burks v. Arkansas Department of Human Services, 76 Ark. App. 71; 61 S.W.3d 184 (2001);

o. Matter of A.B., 663 N.W.2d 665 (N.D. 2003), cert petition pending No 03-784

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In Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30 (1989) the Supreme Court indicated that the “most important substantive requirements imposed upon state courts” are the placement preferences expressed in section 1915 of ICWA. Holyfield, at 36. That section requires an Indian child to be placed in the least restrictive alternative which closely approximates his family and which is within reasonable proximity to his home.

B. Cases

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1.Preferences Apply Even when Child Not Raised in Indian Home.

a. In re Adoption of M.T.S., 489 N.W.2d 2851 (Minn. App. 1992).

b. Matter of Appeal in Coconino Juvenile Action No. J – 10175, 736 P.2d 829 (Arizona App. 1987).

c. Contra, In re Baby Girl A., 230 Cal. App. 3rd 1611, 282 Cal. Rptr. 105 (Cal. App. 4 Dist. 1993) (Court suggests that an Indian mother raised by non-Indians would have right to place her own child for adoption with non-Indians over Tribe’s objections).

d. Matter of Adoption of Riffle, 922 P.2d 510 (Mont. 1996) (Court refuses to follow California appellate decisions which recognize an exception to the placement preference requirements of ICWA when Indian child involved has never been raised in an existing Indian cultural setting and holds that ICWA requires placement with Indian uncle over non-Indian putative adoptive parents and that such a requirement is not unconstitutional. Court also follows Minnesota Supreme Court decision in S.E.G. By holding that the best interest of the child standard is not an appropriate factor in determining whether good cause exists (!) to deviate from placement preference provisions.)

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2.Effect of Tribal Designation of Different Preference.

a. In re Laura F., 83 Cal. App. 4th 583, 99 Cal. Rptr. 2d 859 (Ca. App. 5th Dist. 2000) (Tribal resolution barring non-Indians from adopting tribal members held not to supersede state’s right to place Indian child with non-Indian because such would violate state public policy under the full faith and credit provisions of ICWA. Court does not discuss the tribal law as a tribal designation of preference for adoption).

a. In re Guardianship of Q.G.M., 808 P.2d 684 (Okla. 1991) (Tribe can change order of preference without showing of good cause as long as the proposed placements were least restrictive alternative).

b. Matter of Adoption of T.R.M., 525 N.E.2d 298 (Ind. 1988), cert denied, 490 U.S.1069 (1989) (Court implies that right of Tribe to alter placement preference scheme does not apply in state court?).

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3.Effect Of Parental Preference and Child’s Preference For Placement – 25 U.S.C. Sec 1915(c)

a. Matter of Baby Boy Doe, 902 P.2d 477 (ID 1995) (In a case where the lower court upheld adoption by non-Indian couple consented to by the natural mother, a non-Indian, the Court first holds that mother was proper party to proceedings because her voluntary consent to termination was invalid under ICWA; court did not err in holding that reasonable doubt standard did not apply to the provision that remedial and rehabilitative services be provided to the natural father; qualified expert witness standard met; and lastly that good cause to deviate from adoption placement preferences existed because of natural mother’s preference and the emotional trauma that would befall child if removed from non-Indian home.)

b. Matter of Baby Girl Doe.,865 P. 2d 1090 (Mont. 1993) (Parent’s request for anonymity does not override Tribe’s right to notice in voluntary placement proceeding).

c. In re Baby Girl A., 230 Cal. App. 3d 1611, 282 Cal. Rptr. 101 (court suggests that natural mother’s right to dictate placement overrides Tribe’s right to enforce preference).

d. Adoption of N.P.S., 868 P.2d 934 (Alaska 1994) (mother’s appointment of live-in boyfriend as guardian in will entitled to deference in determining adoption placement).

e. BIA Guidelines, F. I Commentary, at 67594.

f. Matter of Adoption of F.H., 851 P.2d 1361 (Alaska 1993) (Preference of mother entitled to deference, although not absolute, in adoption proceeding).

g. In re Custody of S.B.R., 719 P.2d 154 (Wash. App. 1986) (non-Indian mother cannot defeat rights of father by asserting a preference for placement with her parents).

h. In Interest of J.W., 528 N.W.2d 657 (Iowa App. 1995) (failure of mother to object to placement taken as tacit request for placement that doesn’t comply with ICWA).

i. In re A.E., 572 N.W. 2d 579 (Iowa 1997)(best interests of the child sufficient to deviate from placement preference provisions.)

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4.. Extraordinary Needs of Child – BIA Guidelines F. 3 Commentary (“Highly specialized treatment services that are unavailable in the community where the families who meet the placement preference reside. Must be supported by qualified expert testimony”).

a.L.G. v. State of Alaska, 14 P.3d 946 (AK 2000)(Court upholds adoption with non-Indian and rules that grounds existed to deviate from adoptive placement preferences because of serious emotional harm that would befall child by removing from foster care placement.)

b.In the Matter of C.H., 997 P.2d 776 (Mont. 2000)(Court rejects trial court’s conclusion that bonding was an extraordinary need of child.

c.Matter of Custody of S.E.G., 507 N.W.2d 872 (Minn. App. 1993), rev’d, 521 N.W. 2d 357, (1994). (Appellate Court had upheld an adoption by non-Indians on the ground that the child had the extraordinary need for “stability” and that the child had bonded to N-I family. Supreme Court reversed and ruled that bonding was not extraordinary reason and that the Appellate Court had exceeded its authority by going beyond BIA guidelines). See also Matter of Adoption of Riffle, 922 P.2d 510 (Mont. 1996)

d. Matter of Oscar C. Jr., 559 N.Y.S.2d 431 (Fam. Ct. 1990).

e. In re Adoption of M.T.S., 489 N.W.2d 285(Minn. App. 1992) (Court holds that it is presumptively in best interest of Indian child to be placed with Indian relative over non-Indian couple) .

f. In re Jacqueline L., v. Eric L., 39 Cal.Rptr.2d 178 (Cal. App. Dist. 1995) (UNPUBLISHED) (children’s interest in stable home outweighs their right to be raised in a home that reflects their culture).

g. Matter of Baby Boy Doe, 902 P.2d 477 (ID 1995)(court seems to suggest that the trauma associated with removal of child from non-Indian placement met the standard of extraordinary emotional needs.)

h. People ex rel. A.N.W., 976 P.2d 365 (Col. App. 1999)(Court relies upon Idaho Baby Boy Doe case to find that trauma caused by removal from foster home sufficient to justify deviating from placement preferences under ICWA.);

i. In Interest of C.G.L., D.G.L., and A.B.L., 63 S.W.3d 693; 2002 Mo. App. LEXIS 8 (2002)(Good cause to deviate from adoptive placement preference existed in that the child had extraordinary medical problems and bonding existed that would be contrary to best interest of child to break up).

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5.Inability To Comply – BIA Guidelines, F. 3 (a) (iii), at 67594.

a. In re Robert T., 246 Cal. Rptr. 168 (Ct. App. 6 Dist. 1988) (Court implies that the burden of coming forward with relative placements and Indian home placements rested with Tribe and Tribe’s failure to come forward with placements justified deviation).

b. In re Krystle D., 37 Cal. Rptr. 2d 132, 30 Cal. App.4 1778 (Cal. App.6 Dist. 1994) App. 6 Dist. Dec. 21, 1994) (failure of Tribe to find home justifies deviation.)

6.Other Cases

a. In re Jullian B., 82 Cal. App. 4th 1337, 99 Cal. Rptr. 2d 241 (Cal. App. 4th Dist. 2000)(State law requirement that adoptive placement not have criminal record does not supersede placement preference provisions of ICWA and state required to seek waiver in order to comply with ICWA.)

b. In re Interest of C.W., 239 Neb. 817, 479 N.W.2d 105 (Neb. 1992) (Court whitewashes placement preference requirements by holding that parent cannot enforce preference if she previously agreed to deviation).

c. State ex. rel. Juv. Dept. v. Woodruff, 816 P.2d 623 (Or. App. 1991) (violation of foster care placement requirements is not a ground for dismissal of a termination petition); but see B.R.T. v. Executive Director, 391 N.W.2d 594, 601 n. 10 (N.D. 1986).

c. In re Quinn, 881 P.2d 795 (Or. 1994)(Court reverses decision of lower court allowing an Indian mother to withdraw her consent to adoption made the day of the birth of child on ground that the mother failed to show that the child involved was an Indian child because an affidavit from Tribe to that effect was inadmissible hearsay. As a sideline issues, it should be noted that the attorney for the mother was sued for malpractice and the case settled.)

d. In re Adoption of Lindsay C. 229 Cal. App. 3d 404 (Cal. App. 1 Dist.1991)(placement preferences apply in stepparent adoption).

e. A.M. v. State, 891 P.2d 815 (Alaska 1995)(court vacates termination of parental rights of incarcerated father, finding that section of ICWA requiring active remedial efforts had not been complied with and that need for permanency of children was factor to be considered in termination, but not conclusive.)

f. In Interest of B.M., 532 N.W.2d 504 (Iowa App. 1995)( court reverses a termination of parental rights on the ground that the termination was not the least restrictive alternative and remanded for the court to award great grandparents legal guardianship.)

g. In re Brandon M., 1997 Cal. App. Lexis 373 (Ca. App. 1st Dist. 1997)(Court holds that California’s de facto parent statute, which gives a non-parent of a child preferential treatment under the law is not superseded by ICWA in a case where court places Indian children with non-Indian former stepparent)

h. Carson v. Carson, 13 P.3d 523 (Or. App. 2000)(non-Indian adoptive father lacks standing to challenge an adoption of Indian child in alleged violation of ICWA.)

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7.Burden of Proof For Deviation – BIA Guidelines, F.3b at 67594.

a. Adoption of N.P.S., 868 P.2d 934 (Alaska 1994); Matter of Adoption of F.H., 851 P.2d 1361, 1363 (preponderance of evidence).

b. Matter of Custody of S.E.G., 507 N.W.2d 872, 878 (Minn. App. 1993), rev’d on other grounds, 521 N.W.2d 357 (1994) (clear and convincing evidence needed to deviate).

c. In re Alexandria Y., 45 Cal. App. 4th 1483, 53 Cal. Rptr.2d 679 (Cal. App. 4th District 1996)(in decision which upholds lower court’s determination that ICWA not applicable because child and mother had no significant contacts with Tribe or reservation, Court suggests that party deviating from placement preferences must show beyond a reasonable doubt that good cause exists.)

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At three stages of ICWA there is a requirement of qualified expert testimony to support state court action – foster care placement, termination of parental rights and deviating from the foster care and adoptive placement preference due to the extraordinary needs of the child. 25 U.S.C. SS1912(e); 1912(f), BIA Guidelines, F. 3 at 67594. The failure to produced qualified expert witness testimony may vitiate any proceedings held in state court. See In re. K.H., 981 P.2d. 1190 (Mont. 1999); Doty-Jabbar v. Dallas County, 19 S.W.3d 870 (Tex. App. 5th Dist. 2000). The need for qualified expert witnesses [may apply] in stepparent adoption proceedings also even when the claim is one of abandonment by the natural parent. See In re H.M.O., 962 P.2d 1191 (Mont. 1998).

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1.Exceptions – No cultural bias

a . In the Interest of M.S., 624 N.W.2d 678 (ND 2001)(qualified expert witness testimony not necessary in case where cultural bias not involved: Court also rules that clear and convincing evidence is the standard in determining whether remedial and rehabilitative services provided); State ex rel. Children’s Services Div. v. Campbell, 122 Or. App. 371, 857 P.2d 888 (Or. App. 1993) (expert testimony not necessary in foster care placement when nature of neglect suffered is due to mental illness of mother and not cultural bias); Long v. State Department of Human Services, 527 So.2d 133 (Ala. Civ. App. 1988); State ex jygjygrel. Juvenile Dept. v. Tucker, 710 P.2d 793 (Or. App. 1985). A Michigan appellate court has expressly rejected this exception. See In re Elliott, 218 Mich. App. 196 (Mich. App. 1996)

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2.Failure to object

A few courts have ruled that the failure of Indian parent to object to lack of qualified expert testimony at trial bars review of issue. In Interest of R.L.F., 437 N.W.2d 599 (Iowa App. 1989) ; In re Riva M., 235 Cal. App. 3d 403, 286 Cal. Rptr. 592 (Cal. App. 4 Dist. 1991); In the Matter of Inquiry into K.M.G. and J.G., 2002 Mont. Lexis 6 (2002)(parents’ failure to object to questions to alleged expert witness bars appellate review).

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3.Cases Finding Qualified Experts

a. In re Interest of C.W., 470 N.W.2d 105(Neb.1991) (psychologist with little experience working with Indian children qualified as expert).

b. In Interest of S.M., 508 N.W.2d 732 (Iowa App.1993) (social worker who worked with Indian families and who had training in Native cultures).

c. State ex rel. Juvenile Dept. v. Woodruff, 108 Or. App. 352, 816 P.2d.

d. In re L.N.W., 457 N.W.2d 17 (Iowa App. 1990) (social worker with 2 1/2 years of experience, half of cases, were Indian and Indian friends qualified); Cf., C.E.H. v. L.M.W., 837 S.W.2d 947 (Mo. App. W.D. 1992); In re Interest of D.S.P., 480 N.W.2d 234 (Wis. 1992),Matter of D.S., 577 N.E.2d 572 (Ind. 1991); Matter of L.F. and D.F., 880 P.2d 1365 (Mont. 1994); Matter of Baby Boy Doe, 902 P.2d 477(Idaho 1995).

e. In re Krystle D., 37 Cal. Rptr. 132, 30 Cal. App. 4 1778 (Cal. App. 6 Dist. 1994) (Court holds that fact that Q.E.W. testified sufficient even if those experts testified against termination).

f .In re Denice F. et al. , -A. 2d -, 199 5 WL 324789 (Me. 1995)

g. L.G. v. State of Alaska, 14 P.3d 946 (AK 2000)(social worker familiar with native american culture.)

h. Rachelle S. v. Dept of Economic Security, 958 P.2d 459,191 Ariz. 518 (Ariz. App. 1998)(Medical doctor in shaken baby case satisfies ICWA requirements.)

i. J.A. v. Alaska, 50 P.3d 395, Alaska 2002)(hypothetical questions to experts who reviewed file only and did not work with mother sufficient to support evidence by qualified expert witness. Court also holds that the State provided adequate remedial services to mother).

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4.Cases Not Finding Q.E.W.

a.Matter of Welfare of B.W., 454 N.W.2d 437 (Minn. App. 1990) (Court-appointed psychologist not an expert under Minnesota’s more restrictive guidelines).

b.Matter of Welfare of M.S.S., 465 N.W.2d 412 (Minn. App. 1991) (merely because social worker works with Indian families does not qualify her as an expert).

c.Matter of Custody of S.E.G., 521 N.W.2d 357 (Minn. 1994).

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New regulations, promulgated in the Federal Register, at Vol. 59, No. 9, at 2248, Jan. 13, 1994, remove the competitive nature of the award of Title II ICWA grants to Tribes. Non-tribal entities are still judged on a competitive basis.


1. ICWA – Title II – 25 U.S.C. SS 1931, 1932; 25 C.F.R. 23.25, as amended by Federal Register, Vol.59, No. 9 at 2248, Jan. 13, 1994. See Navajo Nation v. Hodel, 645 F.Supp. 825 (D. Ariz. 1986).

2. Title IV-B of Social Security Act – 42 U.S.C.628. TheAugust,1994 OIG report indicated that only 59 of 542 Tribes receive this funding. Title II ICWA grants can be used as match. 25 U.S.C. 1931(b).

3.Title IV-E of Social Security Act – 42 U.S.C. S670 et seq.

a. No direct funding – must be cooperative agreement under 25 U.S.C. 1919(a) and 42 U.S.C. SS672(a)(2).

b. Native Village of Stevens v. Smith, 770 F.2d 1486 (9th Cir. 1985) (Alaska not required to make foster care payments to tribally licensed home absent cooperative agreement).

4.Title XX of Social Security Act – 42 U.S.C. 1397 et seq

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25 U.S.C. Sec.1912(b) mandates the appointment of counsel for parents or Indian custodian in a “removal, placement or termination proceeding”. This appears broad enough to mandate the appointment of counsel in pre-adoptive and adoptive placement proceedings. This appears to include purely private disputes not involving a state, such as stepparent adoptions and intra-family squabbles.


1. Matter of J.W., 742 P.2d 1171 (Okla. App. 1987) (failure to appoint counsel is basis for reversal of trial court’s action).

2. In re Interest of D.S.P., 458 N.W.2d 823, aff’ 484N.W.2d234(Wis.1993)(ICWA does not require the appointment of guardian ad litem for incompetent Indian parent).

3. Lassiter v. Department of Social Services, 452 U.S. 18 (1981) (counsel is not a due process right in termination proceeding).

4. V.D. v. State, 991 P.2d 214 (AK 1999)(State court should promptly appoint counsel in ICWA proceedings and delay may cause reversible harm.)

C.BIA Reimbursement 25 C.F.R. S23.13

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Federal court litigation reveals that most of the cases that seek review of a state court determination under the ICWA consider the state court judgments to have preclusive effect. Other federal court litigation involves conflicting state and tribal custody decrees or whether tribal courts have authority to hear a specific claim.

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B.Cases: Federal Court Review of State Court Decisions

1.Mississippi Band of Choctaw Indians v. Holyfield. 490 U.S. 30 (1989)(exclusive tribal court jurisdiction where child considered to have reservation domicile)

2. Comanche Indian Tribe v. Hovis, 53 F.3d 298 (10th Cir. 1995)(Court reverses district court decision which had awarded custody of Indian child to Tribe, contrary to state court decision, on the basis that the Tribe was collaterally estopped from relitigating issue in federal court that it lost in state court under Section 1914.)

3.Morrow v. Winslow, 94 F.3d 1386 (10th Cir. 1996)(Natural father of Indian child barred by doctrine of abstention from invoking federal court jurisdiction to enjoin Oklahoma state court proceeding which declared that his consent to adoption was not necessary under Oklahoma law because he had abandoned child.)

4.Mowa Tribe of Oklahoma v. Lewis, 777 F.2d 587 (10th Cir. 1985, cert. denied 479 U.S. 872 (1986)( collateral review barred by doctrine of collateral estoppel under 28 U.S.C. 1738)

5.Kickapoo Tribe of Oklahoma v. Rader, 822 F.2d 1493 (10th Cir. 1987)(barred by res judicata)

6.Native Village of Venetie I.R.A. Council v. Alaska, 944 F.2d 548 (9th Cir. 199l)(federal court has jurisdiction to hear tribal and individual causes of action that native villages have concurrent jurisdiction over Indian child custody proceedings in PL 280 jurisdiction); cf Matter of F.P., 843 P.2d 1214 (Alaska 1992)(holding native village did not have concurrent jurisdiction); Native Village of Nenana v. State, 722 P.2d 219 (Alaska 1986)(same).

7.Roman-Nose v. New Mexico Dept. of Human Resources, 967 F.2d 435 (10th Cir. 1992)(federal court has jurisdiction in termination of parental rights proceeding “to the extent” pro se mother alleges the State court violated either 25 U.S.C. 1911, 1912 or 1913)

8.Navaio Nation v. District Court, 624 F.Supp. 130, (D.Utah 1985), later related proceeding, In re Adoption of Halloway, 732 P.2d 962 (Utah 1986), aff’d, Navajo Nation v. District Court, 831 F.2d 929 (10th Cir. 1987)(barred by res judicata)

9.Fletcher v. State of Fla., 858 F.Supp. 169 (M.D.Fla. 1994)(damage claim under ICWA dismissed since ICWA provides only declaratory relief, not money damages)

10.Sitka Community Ass’n v. Perkins No. 185-018 (D.Alaska 1984) (unpublished)(tribes must exhaust state court remedies)

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C.Cases: Federal Court Review of Child Custody Decisions

1.Shelifoe v. Dakota, 966 F.2d 1454 (6th Cir. 1992)(federal court lacks jurisdiction to review custody decision under tribal court jurisdiction)

2.Confederated Tribes v Superior Court, 945 F.2d 1138 (9th Cir. 1991)(federal court lacks jurisdiction to issue declaratory judgment where a tribe seeks reversal of interlocutory decision by state court which ruled that the tribal court was divested of jurisdiction over child custody dispute under PL 280)

3.In re Larch 872 F.2d 66 (4th Cir. 1989)(federal court has jurisdiction to address tribe’s claim that state court interfered with tribal jurisdiction in not honoring tribal court custody order)

4.DeMent v. Oglala Sioux Tribal Court, 874 F.2d 510 (8th Cir. 1989)(federal court has jurisdiction over non-Indian claim in divorce challenging tribal court’s exercise of jurisdiction over claim)

5.Comanche Indian Tribe of Oklahoma v. Hovis, 847 F.Supp., 871 (W.D.OkI. 1994), reversed 53 F.3d 298 (10th Cir. 1995)(Federal court must grant comity to state court decision in ICWA case and cannot independently review state court decisions.)

6.LeBeau v. Dakota, 815 F.Supp. 1074 (W.D. Mich. 1993)(tribaI court jurisdiction waived by non-Indian grandmother who challenged non-Indian grandchild’s placement by tribal court)

7.Sandman v. Dakota 816 F.Supp. 448 (W.D. Mich 1992), aff’d, 7 F.3d 234 (6th Cir. 1993)(federal court lacks jurisdiction to review tribal court’s child custody determination)

8.Brown v. Rice 760 F.Supp. 1459 (D.Kan. 1991)(federal court has jurisdiction to resolve parents’ claim that tribal court lacks jurisdiction where tribal law did not permit exercise of such jurisdiction even over ICWA component.

9.Johnson v. Frederick, 467 F.Supp. 956 (D.N.D. 1979)(in dicta court observes tribal court is responsible to determine best interest of Indian children and their supervision and those decisions not subject to review by federal court)

10.Native Village of Venetie v. Alaska, No. F86-0075 Civ Order dated November 23, 1994 (D. Alaska) (adoption decrees of the native courts of the Neets’aii Gwich’in tribe are entitled to full faith and credit from State of Alaska).

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Section 1915(e) requires the state to keep a record of each adoptive placement of an Indian child which shall be made available upon the request of the Secretary or the Indian child’s tribe. A copy of a state adoptive decree or order, along with other required information, must be provided to the Secretary under 1951(a). This information may be disclosed, subject to anonymity constraints, to the Indian child for tribal enrollment purposes pursuant to 1951(b).

A. Cases:

1.Matter of Adoption of Rebecca, 158 Misc.2d 644, 601 N.Y.S.2d 682 (Sort. 1993)(good cause to disclose adoption information under ICWA to establish tribal membership, but only to tribal administrator to protect rights of biological parents)

2.Matter of Hanson, 470 N.W.2d 669 (Mich. App. 1991) (good cause to inspect adoption information under ICWA to establish Indian ancestry, but disclose only to tribe)

3. Matter of Adoption of Mellinger, 672 A.2d 197, 288 N.J. Super 191 (N.J. App. 1996)(ICWA provision allowing adopted Indian child access to state court records preempts state confidentiality law.)

4.BIA Guidelines, G.2 Commentary, p. 67595.

5.Matter of Adoption of Linda J., 682 N.Y.S. 2d 565 (NY Family Court1999)(Court holds that Canadian Indian entitled to have her adoption records released to Canadian band under ICWA).

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A. Notice.

A tribe has a right to receive notice of involuntary child custody proceedings, including adoption proceedings. 25 U.S.C.1912. In the voluntary setting some Courts have held that ICWA does not explicitly require notice and that notice is not therefore jurisdictional, especially when the parent requests anonymity. People in Interest of J.J., 454 N.W.2d 317 (S.D. 1990) However, it appears that several provisions of ICWA would be rendered meaningless if the tribe were not notified because a tribe is an interested party in child custody proceedings involving its tribal children so as to require notice and right to intervene. See, Matter of Baby Girl Doe, 865 P.2d 1090, 1095 (Mont. 1993); In re Kahlen W., 285 Cal.Rptr. 507, 511 (CalApp. 5 Dist. 1991); In re adoption of Lindsey C.. 280 Cal.Rptr. 194, 201 (CalApp. 1 Dist. 1991); Compare Catholic Social Services, Inc. v. Cook Inlet Tribal Council, 783 P.2d 1159 (Alaska 1989.)(tribal intervention rights granted in involuntary proceeding as expressly stated in ICWA, but not for voluntary termination); BIA Guidelines, 44 Fed. Reg. 67584, at 67586 (1979). In any event, to prevent reversible error, sufficient notice must be given. In the Interests of J.W., 498 N.W.2d 417 (Iowa 1993)(reversed termination of parental rights where notice to tribe did not advise of right to intervene.) State must give notice to two tribes where evidence that children were eligible in both tribes, People ex rel. DSS In Interest of C.H., 510 N.W.2d 119 (S.D. 1993)(state failed to given adequate notice under ICWA to tribe so remand for notice compliance); In re Desiree F., 83 Cal. App. 4th 460, 99 Cal. Rptr. 2d 688 (Cal. App. 5th Dist. 2000)(failure to give adequate notice and to permit intervention by Tribe reversible error); Adoption of Arnold, 20012 MASS APP. LEXIS 216 (Proceedings should not be vitiated by late discovery that children were Indian in light of Parties’ failure to notify the Court earlier of Indian status); Family Independence Agency v. Maynard, 592 N.W.2d 751 (Mich. App. 1999).

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Several states, especially Michigan in a series of unpublished opinions, have held that defective notice should not vitiate the state court proceedings unless it is demonstrated that the child is Indian. These courts have taken the approach that rather than reverse a decision for lack of notice, the more appropriate remedy is to grant a conditional stay to a termination order pending notice to an Indian tribe. If the child is not Indian the stay shall be lifted and the termination order effective. See e.g. Matter of Jackson, 2001 Mich. App. LEXIS 2501 (2001); Matter of Bennett, 2001 Mich App. LEXIS 2341 (2001). These cases are representative of dozens of recent cases where parties have attempted to claim some Indian heritage as a manner of defending against termination proceedings in state courts. Michigan seems to be a state that will strictly enforce notice requirements of ICWA. See Matter of N.E.G.P., 245 Mich App. 126, 626 N.W.2d 921(Mich App. 2001)(Court erred in continuing with termination proceedings before notifying the Tribe of the child); See Matter of TM, 245 Mich. App. 181, 628 N.W.2d 570 (Mich. App. 2001)(state complied with notice requirements by notifying all potential tribes and BIA.)

Miscellaneous: In re custody of Sengstock, 477 N.W.2d 310 (Wis App. 1991) (tribe had identifiable and protectable interest, as described in UCCJA, to permit it to intervene in child custody proceeding and tribe successful, as a matter of comity, in dismissing state proceeding to give effect to tribal court order); Matter of Welfare of MSS, 936 P.2d 36 (Wash. App. 1997)(Court holds that notice sent to wrong administrative office of Tribe coupled with failure to wait the statutory ten days after notice received vitiated termination proceedings); In re Levi U., 78 Cal. App. 4th 191, 92 Cal. App. 2d 648 (Cal. App. 3d Dist. 2000)(State court not required to inquire further regarding Indian status of Tribe after BIA failed to respond to state court notice): In Interest of C.Y., 925 P.2d 447 (Kan. App. 1996)(Court holds that Tribal Court must decline to exercise jurisdiction or Court must make finding that there is good cause to contrary to refuse transfer); In re Marinna J., 90 Cal. App. 4th 731, 109 Cal. Rptr.2d 267 (Ca. App. 3d Dist. 2001)(failure of parents to object to lack of notice does not bar appellate review).

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B.Objection by Natural parent

Several Courts have recently reaffirmed that if a natural parent objects to a transfer of jurisdiction to tribal court, transfer is precluded. See Matter of Appeal of Maricopa County Juvenile Action No JD-6982, 922 P.2d 319 (Ariz. App. 1996) (Even though natural mother was schizophrenic represented by a guardian ad litem who consented to transfer, trial court erred in transferring because natural mother objected. Mother’s acquiescence in placement on reservation not consent to transfer) ; In re Larissa G. 43 Cal. App. 4th 505, 51 Cal. Rptr. 2d 16 (Ca. App. 4th Dist.1996); In re A.E., 572 N.W. 2d 579 (Iowa 1997). But see Matter of Andrea Lynn M., 10 P.3d 191 (N.M. App. 2000) (father objected to transfer but case was nonetheless transferred. It appears that this Court may have ruled that the child’s domicile was on reservation however); see also People in Interest of G.R.F., 569 N.W.2d 29 (SD 1998). A child through his guardian ad litem, however, does not have the authority to veto a transfer but instead must demonstrate good cause not to transfer. Michael J. v. Michael J., 7 P.3d 960 Ariz. App. 2000).

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C. Best Interests Standard

The ICWA contains statutory presumptions, which must be followed absent good cause to the contrary, articulating what is in the best interest of Indian children, parents and tribes. See 25 U.S.C. §§1902, 1911, 1915; Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 49 (1989). It is presumed to be in their best interest [ irregarless of child’s upbringing and predominant family emotional connections]

(1) that a tribal court decide the future of an Indian child, Sec.1911;

(2) that the Indian child be placed in a home, either temporarily or permanently, where his racial and cultural identity will be maintained, §1915; and

(3) that the relationship between the Indian child and tribe be perpetuated, HoIyfield supra; Matter of Baby Girl Doe, supra.

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1.Procedural Cases: State’s best Interest standard is not good cause:

a. People in interests of JLP, 870 P.2d 1252 (Colo.App. 1994) (adoption of State’s best interests standard would defeat purpose underlying ICWA, therefore, State’s standard cannot be considered).

b. Matter of Ashley Elizabeth R. 863 P.2d 451 (N.M.App. 1993) (State’s best interest standard inapplicable when considering transfer of jurisdiction).

c. In Interest of Armell, 550 N.E.2d 1060 (Ill.App. 1990), Appeal denied , 555 N.E.2d 37 , cert. denied, 498 U.S. 940 (1990) (State’s best-interest-of-the-child considerations cannot establish “good cause”).

d.BIA Guidelines, C.3 Commentary, p. 67591

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2. Procedural Cases: State’s best interest standard is good cause:

a. In re Interest of C.W., 479 N.W.2d 105 (Neb. 1992)

b.Matter of Maricopa County Juvenile Action, 828 P.2d 1245 (Ariz.App. 1991)

c. Matter of T.S., 801 P.2d 77 (Mont. 1990), cert. denied, 500 U.S. 917 (1991)

d. Department of Social Services v. Coleman, 399 S.E.2d 773 (S.C. 1990)

e. People in Interest of J.J., 454 N.W.2d 317 (S.D. 1990)

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3. Substantive cases: State’s best interest standard is not good cause:

a. Adoption of M.T.S., 489 N.W.2d 285 (Minn.App. 1992) (ICWA preempts state’s best-interest-of-the-child standard and, absent good cause to the contrary, requires placement of an Indian child with an Indian family)

b. Matter of Baby Girl Doe, 865 P.2d 1090 (Mont. 1993) (recognizing ICWA placement provisions achieve purpose of protecting best interests of Indian children by retaining connection to their tribes)

c. Matter of Custody of S.E.G., 521 N.W.2d 357 (Minn. 1994) (good cause to avoid placement preference of SS1915 should be based upon a finding of one or more of the factors described in BIA guidelines)

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4. Substantive cases: State’s best interest standard is good cause:

a. Matter of Adoption of F.H., 851 P.2d 1361 (Alaska 1993) (good cause to deviate from adoptive placement. preference shown by paternal preference for adoption by non-Indians, bonding between non-Indian and child and the need for permanent placement).

b. Adoption of M. v. Navaio Nation, 832 P.2d 518 (Wash.App. 1992) (case was remanded for determination of whether good cause existed not to make preferential placement and best interest was a factor that would be considered on the discretion of the trial court).

c. See also, Adoption of N.P.S. 868 P.2d 934 (Alaska 1994) (good cause to deviate from adoptive placement preference proved by preponderance of the evidence to permit Caucasian to adopt Indian child over Indian maternal grandmother); see also In re A.E., 572 N.W. 2d 579 (Iowa 1997)(best interests of the child sufficient to deviate from placement preference provisions.)

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VIII.Dual Burden of Proof Problems

– Foster care placement, the standard is “clear and convincing’ evidence, see Matter of LF. 880 P.2d 1365 (Mont. 1994);

– . Termination of parental rights, the standard is ‘beyond a reasonable doubt” People in Interest of A.R.P., 519 N.W.2d 56 (S.D. 1994); In re L.N.W., 457 N.W.2d 17 (Iowa App. 1990); Matter of D.D.S. 869 P.2d 160 (Alaska 1994).

1.Matter of J.R.B., 715 P2d 1170 (Alaska 1986)(reasonable doubt standard applies only to findings of serious harm to child resulting from continued parental custody, and it is not required for any additional findings mandated under state law)

2.In re Interests of D.S.P., 480 N.W.2d 234 (Wis. 1992) (dual burden of proof was appropriate in proceeding for involuntary termination of parental rights; since ICWA did not mandate using beyond a reasonable doubt standard for proof of abandonment under Wisconsin law, only ICWA’s requirement for termination shall be governed by Act’s standard of proof while additional state law safeguards should be governed by proof required under state law)

3.New York City DSS v Oscar C., 600 N.Y.S.2d 957 (A.D.2 Dept. 1993)(court applied dual burden of proof in child neglect proceeding: “preponderance of the evidence’ standard of proof in its fact finding phase and “clear and convincing evidence’ standard in dispositional phase)

4.Utah in Interest of SAE and KLE, 912 P.2d 1002 (Ut. App. 1996)(Court holds that state grounds for termination must still be shown by clear and convincing evidence).

5.A.H. v. Department of Social Services, 10 P.3d 1156 (AK. 2000(Court seems to utilize state standard of clear and convincing evidence to terminate notwithstanding the beyond a reasonable doubt standard in ICWA.)

6. In re J.A., 962 P.2d 173 (AK 1998)(probable cause standard applicable to emergency custody hearing involving Indian child.)

7. In re H.A.M., 961 P.2d 716 (Kan. App. 1998)(Court applies a clear and convincing standard to state grounds for termination and beyond a reasonable doubt for ICWA grounds.)

8. Family Independent Agency v. Dougherty, 599 N.W.2d 772 (Mich. App. 1999)(Court holds that a state agency need not provide remedial services to a parent convicted of sexual abuse because he was not part of family at time he committed offense.)

9. In Interest of Sabriena B., 9 Neb. App. 888 (Neb. App. 2001)(failure to properly plead all required showings under ICWA in termination proceeding is subject to dismissal in state court even if state shows all necessary elements.)

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The ICWA expressly provides that “the Indian child’s tribe shall have a right to intervene at any point in the proceeding.” 25 U.S.C. 1911(c). See e.g., Matter of Guardianship of O.G.M., 808 P.2d 684 (0k]. 1991) (tribe permitted to intervene on eve of trial in guardianship action); People in Interest of J.J., 454 N.W.2d 317 (S.D. 1990) (tribe intervened into appellate proceeding); Matter of Begay, 765 P.2d 1178 (N.M.App. 1988) (Pueblo intervened into appellate proceeding); cf. State ex rel.Juvenile Department of Lame County v. Shuey, 850 P.2d 378 (Or.App. 1992) (ICWA preempts state law requiring groups to be represented by attorney when applied to tribe’s attempt to intervene in ICWA proceeding); Compare In re Baby Girl A., 282 Cal.Rptr. 105 (Cal.App. 4 Dist. 1991) (ICWA did not give tribe automatic right to intervene in ancillary proceeding intended to assist in completing voluntary adoptive placement; however, ICWA did not preclude intervention and tribe’s interest is great enough to intervene). One Court has held that former foster parents of an Indian child, however, have not standing to intervene in a termination and pre-adoptive placement proceeding. See In Interest of H.N.B. and A.J.B., 619 N.W.2d 340 (Iowa 2000). Relatives who meet the adoptive placement preference standards may however intervene to express their interest. See In Re. C.G.L. v. Bilyeu, 28 S.W.3d 502 (Mo. App. 2000); see also In re Matter of C.G.L., 28 S.W.3d 502; 2000 Mo. App. LEXIS 1518(Adoption reversed because family member not permitted to intervene. But see IN THE INTEREST OF H.N.B. and A.J.B., Minor Children, B.L.and C.L., Appellants., 619 N.W.2d 340; 2000 Iowa Sup. LEXIS 218 (Trial court [denied] request to intervene from former foster parents including the father who was a Canadian Indian implying that the potential intervenor was not federally-recognized Indian.)

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IX. Adoption and Safe Families Act and ICWA

Courts have recently begun to examine whether the mandates of the ASFA and ICWA conflict. Several recent cases appear to side with ASFA.

    1. In the Matter of the Custody and Parental Rights of A.L.R., 2002 MT. 183 (2002) (Mother’s failure to comply with family services plan sufficient cause to terminate her parental rights).
    2. J.S. v. Alaska, 50 P.3d 388 (Alaska 2002)(father not entitled to remedial services when he was convicted of child sexual abuse. ASFA trumps ICWA).
    3. Adoption of Arnold, 50 Mass. App. Ct 743, 741 N.E.2d 456 (Mass. App. 2001)(court terminated father’s parental rights for sexual abuse notwithstanding lack of services to him).
    4. In re Cari B., 327 Ill. App.3d 743, 763 N.E.2d 917 (Ill. App. 2002)(active efforts required to rehabilitate father even when he is incarcerated in another state. Burden of showing efforts is preponderance of evidence and was demonstrated in this case).
    5. In re William G., 89 Cal. App. 4th 423, 107 Cal. Rptr.2d 436 (Ca. App 3d Dist. 2001)(father’s argument that termination inappropriate because he was denied rehabilitative efforts rejected because he refused to avail himself of such efforts.)


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