March 01, 2016

Party Seeking ICWA-Noncompliant Child Placement Must Show Need by Clear and Convincing Evidence

The views expressed herein have not been approved by the House of Delegates or the Board of Governors of the American Bar Association, and accordingly, should not be construed as representing the policy of the American Bar Association.

In re M.K.T., 2016 WL 236297 (Okla.).

Child whose father was enrolled in the Cherokee Nation was placed with an ICWA-noncompliant family despite efforts by the tribe to provide temporary ICWA-compliant foster care. The trial court could consider harm to the child resulting from the tribe’s request to move the child to an ICWA-compliant home. The proper standard for a party showing a need for an ICWA-noncompliant child placement is clear and convincing evidence.

The child welfare agency placed three minor children in emergency protective custody in different homes and petitioned to adjudicate the children as deprived due to neglect, lack of supervision, and exposure to substance abuse. The natural mother is a non-Indian, while the natural father was enrolled in the Cherokee Nation. The child in this case was placed with a foster placement that was not compliant with ICWA.

At the request of the Cherokee Nation, the trial court ordered transfer of the child from her foster home to a home compliant with the Indian Child Welfare Act (ICWA). The child welfare agency, natural father, natural mother, child, and foster mother appealed and the appellate court reversed the order. The Cherokee Nation appealed the reversal.

The Oklahoma Supreme Court held the proper standard for a party showing a need for an ICWA-noncompliant child placement is clear and convincing evidence. The court found the evidence presented by the agency and parents was sufficient to show a continued temporary ICWA-noncompliant placement was in the best interests of the child. The ICWA-compliant family originally selected by the Cherokee Nation would not have been considered for foster placement because they had expressed a preference for an adoption-only placement. At that time neither parent’s rights had been terminated.

The father, who was incarcerated, had filed a tribal relinquishment form, which he believed would help keep the child in her current ICWA-noncompliant placement. He said if his parental rights and those of the natural mother were terminated, he would prefer the child be adopted by the foster mother. While there was some dispute about the effect of the father’s attempts to relinquish his tribal membership or whether such relinquishment could alter the Indian status of the child, it was uncontested that the child was an Indian child for ICWA purposes.

In its analysis, the court described the updated Bureau of Indian Affairs (BIA) 2015 Guidelines for State Courts and Agencies in Indian Child Custody Proceedings as instructive or advisory in nature, but not mandatory. Courts can use them when construing language in the ICWA, and they are the starting point for a best interests analysis, with the potential to be applied retroactively. In this case, the updated Guidelines were created after the trial court hearing and no party pointed to authority for their use, so the court applied the Guidelines in effect on the date of the trial court hearing when the decision for placement was made.

Testimony that supported keeping the child in her ICWA-noncompliant placement included a child welfare specialist who stated the child’s attachment to her foster mother would make a timely emotional attachment to a new ICWA-compliant family difficult. Furthermore, the child’s therapist stated it would be likely the child would experience additional trauma if moved from her current placement. The child was well cared for by the foster mother and was healthy and happy in her care.

While establishing the clear and convincing standard to show need for an ICWA-noncompliant placement, the court found the evidence in this case was sufficient to satisfy the burden regardless of which standard was applied. The evidence showed a continued temporary ICWA-noncompliant placement was in the best interests of the child.