Uniform State ICWA

Uniform State ICWA: Emergency Jurisdiction

Kate Fort

Kate Fort

— 5 min read
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I'm going to periodically post about how the Uniform State ICWA updates or looks different from the federal ICWA.

ICWA Language

One area that causes a lot of confusion (like, a lot. Explaining this to Brackeen was a fascinating mess, leading to one of my all time favorite quotes "this is NOT GOOD statutory interpretation!") is the language of emergency jurisdiction under 25 USC 1922. As a reminder, this is the language:

Nothing in this subchapter shall be construed to prevent the emergency removal of an Indian child who is a resident of or is domiciled on a reservation, but temporarily located off the reservation, from his parent or Indian custodian or the emergency placement of such child in a foster home or institution, under applicable State law, in order to prevent imminent physical damage or harm to the child. The State authority, official, or agency involved shall insure that the emergency removal or placement terminates immediately when such removal or placement is no longer necessary to prevent imminent physical damage or harm to the child and shall expeditiously initiate a child custody proceeding subject to the provisions of this subchapter, transfer the child to the jurisdiction of the appropriate Indian tribe, or restore the child to the parent or Indian custodian, as may be appropriate. (emphasis added)

Given the bolded text of this provision, it should only apply to children over whom a tribe would normally have exclusive jurisdiction. HOWEVER, that is not how state courts have interpreted it. Instead, courts have reasoned this must be the standard for all Indian children, regardless of their domicile, while also finding that notice requirements aren't triggered by a 1922 provision. See e.g. In re Morris, 815 N.W.2d 62, 80-82 (Mich. 2012) for a discussion of all of this.

This means that despite this provision being a jurisdictional provision, it has become a bigger part of ICWA cases call "emergency proceedings."25 C.F.R. 23.113. And unfortunately, there are very few ICWA protections in these proceedings except for the very high burden ("imminent physical damage or harm") and under the regulations, the emergency proceedings can last a pretty long time with no notice or other 25 U.S.C. 1912 requirements (active efforts, qualified expert witness, etc.).

State Requirements

OK, so MEANWHILE all states have a requirement to have a hearing after the removal of a child from their home. Rarely called an "emergency" hearing, these hearings are usually held within 24-72 hours after the removal (and you guessed it, they are often called a "24 hour" or "48 hour" hearing, or "shelter care" or "preliminary." These are all the same, and the point is they are the first hearing after a removal or the filing of a petition). The argument for the speedy hearing is to ensure parents are in front of a court very fast when the state has removed their child so the state isn't holding their child longer than it should--but the fact of the matter is this hearing is most often a rubber stamp that keeps the child out of the home. This is despite the language of the state laws often are similar to that of ICWA's requirements. In Michigan, to take a child into protective custody requires reasonable cause to believe "The child is at substantial risk of harm or is in surroundings that present an imminent risk of harm and the child’s immediate removal from those surroundings is necessary to protect the child’s health and safety." MCR 3.963(A), (B) (emphasis added). At the preliminary hearing, the court may keep the child removed or order removal (remember, as soon as 24 hours after removal, which means I'm not sure how subpoenaing witnesses is going to work):

MCR 3.965(C)​ Pretrial Placement.
(1)​Placement; Proofs. If the child was not released under subrule (B), the court shall receive evidence, unless waived, to establish that the criteria for placement set forth in subrule 3.965(C)(2) are present. The respondent shall be given an opportunity to cross-examine witnesses, to subpoena witnesses, and to offer proofs to counter the admitted evidence.
(2)​ Criteria. The court may order placement of the child into foster care if the court finds all of the following:
(a)​ Custody of the child with the parent presents a substantial risk of harm to the child’s life, physical health, or mental well-being.
(b)​ No provision of service or other arrangement except removal of the child is reasonably available to adequately safeguard the child from the risk as described in subrule (a).
(c)​ Continuing the child’s residence in the home is contrary to the child’s welfare.
(d)​ Consistent with the circumstances, reasonable efforts were made to prevent or eliminate the need for removal of the child.
(e) ​Conditions of child custody away from the parent are adequate to safeguard the child’s health and welfare.

SO, when we train judges and lawyers, one argument that I have made is, fine, you want to use this 1922 jurisdiction standard for all Indian children regardless of their domicile, then you have to ALSO have to meet the "imminent physical damage or harm" standard or return the child. The court could retain jurisdiction and do an "in-home" dependency or order services, but they have to return the child if there is no risk of imminent damage or harm.

This all means that when a new attorney comes along and reads 1922 and actually reads the words there is a lot of confusion. And while we can train to use that 1922 standard for the first hearing, that's not what the federal law specifically says and honestly, I don't know very many places actually doing this in practice--as you can see from Michigan's court rules. But this means the state courts often aren't doing EITHER the requirements under 1912 OR 1922.

Uniform State ICWA Act

And not just new attorneys get confused, but any attorney new to the ICWA practice--as you might imagine, this required considerable explanation during the ULC drafting process. However, drafting the Uniform Act finally gave us the opportunity to truly untangle this area. The Act retains emergency jurisdiction in Article 4, Section 402, which is the jurisdiction article. In that situation, a state may truly have emergency jurisdiction for children who are IN FACT domiciled on a reservation where their tribe has exclusive jurisdiction with no exceptions (such as a tribal-state agreement or PL 280). The Act also explicitly identifies the concurrent jurisdiction for off-reservation domiciled children in Section 403. This provision is no longer meant to be used to guide a proceeding or justify putting off ICWA's requirements.

INSTEAD, in Article 5, the Act applies specific requirements to that state shelter care/preliminary/24 hour hearing immediately after either a removal or the filing of a petition against a parent. This hearing maintains the 1922 "imminent physical damage or harm" standard if the child is removed, but also requires inquiry, notice, legal representation, ordering active efforts, the opportunity to transfer the case to tribal court that is not currently required under an "emergency proceeding" in the regulations. Section 504 also imagines a scenario where a child is not removed from their parent, but still receives the benefits of those requirements. If a child is removed, the "imminent physical damage or harm" standard must be met, plus placement requirements, family time, and an adjudicatory hearing within 90 days.

This is in some ways a compromise–ICWA itself says that "no foster care placement" can be made without notice, active efforts, etc. 25 U.S.C. 1912. But the fact of the matter is that courts are using 1922 plus the regulations to not require anything from ICWA when a child is removed by CPS. If a state adopted this act, the state court would be required to do everything in Section 504 at the first hearing, and then apply all of the 25 U.S.C. 1912 requirements at the adjudicatory hearing under Section 506.

More on Section 506 and adjudication another day.

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