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October 01, 2017

District Court Dismisses Claim that ICWA Provisions and Accompanying Guidelines are Unconstitutional

Emily Peeler

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.

A.D. by Carter v. Washburn, 2017 WL 1019685 (D. Ariz.).

A class action was filed on behalf of all off-reservation Arizona children with Indian ancestry and all off-reservation Arizona foster, preadoptive, and prospective adoptive parents in child custody proceedings involving children with Indian ancestry challenging certain provisions of the Indian Child Welfare Act (ICWA) and the 2015 Guidelines. The claim alleged several constitutional violations including equal protection and due process violations of the Fifth and Fourteenth Amendments. The court found the parties lacked standing because the complaint did not allege facts showing a concrete and particularized injury that was actual or imminent and fairly traceable to alleged violations.

This case was filed to protect children involved in three different child welfare cases and was extended to include all off-reservation Arizona children in child custody proceedings. Of the child-specific cases, the first involved a child who was an enrolled member of a tribe, whose parents’ rights had been terminated, and whose foster parents’ petition to adopt was pending. The second was a child who was also an enrolled member of a tribe with a finalized adoption after four years in state custody. The third was a pair of half-siblings, one of whom was eligible for tribe membership while the other was not. Parental rights had not been terminated and the siblings remained in foster care with parents who wanted to adopt them.

The petitioners, on behalf of the children, alleged the 2015 ICWA Guidelines and parts of ICWA itself violate equal protection and due process guarantees of the Fifth and Fourteenth Amendments; exceed the federal government’s power under the Indian Commerce Clause and the Tenth Amendment; violate associational freedoms under the First Amendment; and exceed authority to publish guidelines. The government sought a dismissal of these claims. To avoid dismissal, the complaint needed to contain “enough facts to state a claim for relief that is plausible on its face.” The petitioners also needed to establish standing by showing they suffered an injury that was concrete and particularized, actual or imminent, and traceable to the alleged violation.

The court’s analysis of the disputed sections of ICWA and the 2015 Guidelines included:

  • Section 1911(b) requires state courts to transfer any proceeding on foster care placement of, or termination of parental rights to, an Indian child not domiciled or residing within the reservation of the child’s tribe to the tribal court upon petition of either parent, the Indian custodian, or the Indian child’s tribe, in the absence of good cause to the contrary, objection by either parent, or declination by the tribal court of the tribe. The court found only one of the three cases had a tribe seek transfer and agreed there was concrete and particularized injury of delay due to that transfer. However, the court determined it was not traceable to § 1911(b) but rather to the tribe.

  • Section 1912(d) requires state officials to make active efforts to provide services to prevent the breakup of an Indian family. These efforts are distinct from reasonable efforts found in the Adoption and Safe Families Act (ASFA). Petitioners argued that requiring more than reasonable efforts deprived Indian children and their foster parents of legal recognition of their family status resulting in uncertainty and distress. The court found the only possible injury from Section 1912(d) would be a delay in termination of parental rights, which no party suffered.

  • Section 1912(e) prohibits foster care placement “in the absence of a determination supported by clear and convincing evidence…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.” This is a higher standard of proof than required in non-Indian child cases. Petitioners argued the higher standard disregarded the safety and security of children with Indian ancestry based solely on race. The court found the complaint did not state facts showing a foster care placement for any of the children was delayed or exposed to greater risk of harm because of this higher standard and therefore there was no injury.

  • Section 1912(f) prohibits termination of parental rights “in the absence of a determination, supported by evidence beyond a reasonable doubt…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.” It was argued the “beyond a reasonable doubt” standard is greater than would otherwise be required, but the complaint did not allege termination proceedings were affected by the standard.

Petitioners also argued ICWA and the 2015 Guidelines, § § 1915(a), (b) and § § F.1. , F.2., F.3., and F.4. regarding adoptive placement preferences, single out and treat children with Indian ancestry and non-Indian adults involved with their care and upbringing differently. The court found the complaint alleged mere conclusions, not facts, in the cases of adoption or foster care placements that had been delayed by preferences, so there was no injury.

The complaint had been amended several times, and the court used its broad discretion to bar further amendments because it would cause undue delay and would likely be futile. Finding no injury, the court dismissed the case.