Foster kids civil rights lawsuit
My foster nieces and nephew are being forced to leave the place they've called home for nearly nine years, by the Tribe. These children have a right to finish growing up in the home they love. H. 12, V. 14, C. 15 are seeking a lawsuit in
Federal Court that will addresses this assault on their right to a safe and permanent home.
Below are links for articles in the Record Eagle that highlight the children's story:
Kids Voices Heard
In 2009 the children were placed in a voluntary guardianship with the Retta and Donn families by their mother. In 2010 all of the children were placed in a voluntary guardianship with the
The following was obtained from the Michigan Courts web site and gives the history of the case from 2010 through 2014:
"I. FACTUAL BACKGROUND
This case began in 2010 when the Department of Human Services (DHS) petitioned the circuit court to take jurisdiction over the minors under MCL 712A.2 on the basis of alleged abuse and neglect. The circuit court took jurisdiction over the minors in August 2010, and in September 2010, the minors’ mother requested that the circuit court transfer the case to the tribal court.
The circuit court notified the tribe of the proceedings in November 2010, and the tribe responded that the minors were not members of the tribe nor were they eligible for tribal membership. The DHS filed a supplemental petition in November 2011 seeking termination of the parental
rights of the minors’ mother.
In December 2011, the tribe filed a notice of intervention, stating that the minors were, in fact, enrolled members of the tribe or eligible for tribal membership. This determination was made
possible after adoption records regarding the minors’ mother were unsealed and provided to
the tribe’s membership office. The minors were enrolled as members of the tribe in February
2012. On February 13, 2012, the minors’ mother filed a motion to dismiss the supplemental
petition for noncompliance with the Indian Child Welfare Act (ICWA), 25 USC 1901 et seq. The mother also filed a motion to transfer the case to the tribal court, which the circuit court granted. However, the tribal court declined the transfer, stating in part that the transfer would not be
in the best interests of the minors.
On April 6, 2012, the minors’ mother voluntarily released her parental rights to the minors. And on April 18, 2012, following a hearing, the circuit court entered an order terminating the parental rights of the minors’ father.
The minors’ foster parents, respondents Tim Donn and Anne Donn, with whom the minors had been residing for several years, wished to adopt the minors. The minors’ paternal grandparents in Missouri also wished to adopt the minors. The circuit court ordered that the minors remain
with the Donns until the Michigan Children’s Institute (MCI), through its agent, Bethany
Christian Services, completed its assessment and recommended an adoptive placement. The
tribe favored the minors’ paternal grandparents for adoption of the minors.
On December 6, 2013, the MCI recommended adoptive placement with the Donns, who filed a petition for adoption on December 13, 2013. The tribe filed a motion on December 23, 2013, to transfer the proceedings to its tribal court. The tribe also moved the tribal court to accept the
transfer. The minors’ attorney and guardian ad litem recommended that the circuit court deny
the requested transfer to the tribal court, stating that there was good cause not to transfer
based on the length of time the children had been in placement, the late stage of the proceedings, and the amount of time it would take to appoint a new guardian ad litem in the tribal court and then to inform him or her of the lengthy background of the proceedings.
The circuit court held a hearing on February 6, 2014, regarding the tribe’s motion to transfer.
The circuit court denied the request due to the advanced stage of the case, noting that the
tribal court had already once denied a transfer on the basis that a transfer was not in the best interests of the minors. The circuit court further noted that nothing had changed since the tribal
court’s denial, with the exception of MCI’s adoption recommendation. The circuit court also
concluded a transfer would not be in the best interests of the children.
The circuit court addressed the “good cause” defined in MCL 712B.7(5) that was required to
deny the tribe’s transfer request. The circuit court observed that the tribe did have a tribal
court, MCL 712B.7(5)(a), but ruled that the “undue hardship” of MCL 712B.7(5)(b) was not limited to the hardship imposed on witnesses to present evidence in the tribal court. The circuit
court explained that it found “clear and convincing evidence that hardship to the parties; to wit, the three children, would occur if this transfer were granted.” The circuit court noted that the
minors were undergoing stress and that they needed permanency. Additionally, the circuit
court found that the minors had been out of a parent’s home for nearly five years and should
not be subjected to any more stress in that regard.
On February 7, 2014, the circuit court entered its order denying the tribe’s motion to transfer
for the reasons stated on the record. The circuit court also stayed all proceedings, including its order denying a transfer to tribal court, pending the exhaustion of appellate remedies."
The following is found in a complaint filed in UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION
The link is below:
"The Appellate Court Finds that MIFPA
Has No Regard for the Rights of the Children
45. The Michigan Court of Appeals published its opinion on this matter on
March 19, 2015.
Case 1:15-cv-00982-JTN-ESC Doc #1 Filed 09/29/15 Page 8 of 16 PageID
46. The appellate court framed the issue as:
May a circuit court find ‘good cause not to transfer a case to tribal court’
under MCL 712B.7(5)(b) on the basis of ‘undue hardship’ to an Indian
child or children as a result of delay in the proceedings resulting from the
transfer of a long-pending case to tribal court? Stated otherwise, does MCL
712B.7(5)(b) permit a circuit court to deny a request to transfer an Indian
child custody proceeding to a tribal court based on the timeliness of the
request or the effect the transfer may have on the child’s best interests?
47. The appellate court reversed the circuit court, finding, in part, that the best
interests of children is not a consideration in determining whether there is “good cause”
not to transfer a case to a tribal court and that there is no consideration that must be given
as to the timeliness of the transfer request.
48. The Donns filed an Application for Leave to Appeal to the Michigan
Supreme Court, which was denied on or about June 5, 2015.
49. The Donns then filed a Motion to Deny Transfer and Request Stay of
Proceedings, so they could address constitutional issues related to the MIFPA transfer
provisions that were previously not litigated because of the case’s posture.
50. The circuit court granted the Donns’ motion to stay on July 2, 2015.
51. The Tribe made an Application for Leave to Appeal, while also making a
motion for immediate consideration to lift the stay. The Donns then filed leave for
discretionary appeal, arguing among other things the appellate court needed to hear for
the first time their constitutional concerns that were not previously raised as they were the
prevailing party (and respondents) in the prior appeal.
52. On September 14, 2015, the appellate court ordered that the stay be lifted,
and denied the appellate application as unnecessary at that point.
Case 1:15-cv-00982-JTN-ESC Doc #1 Filed 09/29/15 Page 9 of 16 PageID #9
53. On September 21, 2015, the circuit court ordered this matter transferred to
54. As a result of the transfer, the Children can be removed from the Donn
home at any moment."
Since the transfer of the case to tribal court in 2015, there has been four motions to
immediately remove the children from their home.
The Child-Separation Crisis No One Sees
“While America argued about whether the Trump administration was right to separate children at the border, a much larger child-separation crisis has gone almost entirely unremarked: in America’s foster-care system. And in this case, the problem is not that we’re taking too many children away from their parents. We’re not taking enough………
Children’s interests should come first. And of course it is most often in the interests of children to remain with their parents — but not always. The problem is that our child-welfare workers are too often reluctant to acknowledge the exceptions. As a result, we are making poor decisions about where kids are safest.”
To read further:
Native American Children at Risk Need Protection Too
By Timothy Sandefur August 1, 2018
Neglected and abused Native American children may have new hope of finding the stable, loving homes they need, thanks to a lawsuit being heard today by a federal judge in Texas. That case, brought by several state attorneys general along with adoptive families and foster parents, challenges the constitutionality of a federal law that imposes race-based restrictions on the adoption of Indian children and makes it harder for states to protect them from harm.
The law in question is the Indian Child Welfare Act (ICWA), passed in 1978 to rectify the abuse of Indians by federal and state governments. Despite its good intentions, ICWA today stands as one of the biggest barriers against protecting kids with Native American ancestry. That’s because the law creates a separate, less protective set of rules for child-welfare cases involving “Indian children,” which it defines as children “eligible for membership” in a tribe and whose biological parents are tribal members.
This distinction matters because ICWA imposes a segregated legal system that ties the hands of state officials seeking to protect Indian children.
To Read More click web address below:
Born and raised in Ohio, five-year-old C.J. Jr. has been living with loving foster parents since 2015, since his parents were unable to care for him. But because of the federal Indian Child Welfare Act (ICWA), which subjects Native American children to a set of separate and substandard rules regarding their custody and care, an Arizona-based Indian tribe has issued an order commanding that C.J. Jr. be taken away from his Ohio family and sent nearly 2,000 miles away to live with strangers he’s never met on an Indian reservation he’s never even visited.
The Ohio Court of Appeals heard argument in the case in November 2017, and today, the Court issued a decision siding with equal protection for children like C.J. Jr. “C.J. Jr. wanted to live with his foster parents, and were he a child of any other race, his wishes and his best interests would matter. But because C.J. Jr. has the 25 percent ‘Indian blood’ required to be a member of the Gila River Indian Community, he fell under ICWA, which meant that the ‘best interests of the child’ rule that applies to kids of all other races did not apply to him,” explains Goldwater Institute attorney Adi Dynar. “Because of the Court’s decision today, C.J. Jr. will get to stay with his foster parents as he wished. This is a major victory for the rights of children like C.J. Jr., whose best interests should mean as much as they do for all other children in Ohio and across the country.”
(This is our goal for here in Michigan)
To read more, click on the web address below:
"The Goldwater Institute is a leading free-market public policy research and litigation organization that is dedicated to empowering all Americans to live freer, happier lives. We accomplish real results for liberty by working in state courts, legislatures, and communities nationwide to advance, defend, and strengthen the freedom guaranteed by the constitutions of the United States and the fifty states."
One of the things Goldwater does is:
They "fight for the equal protection of Native American children who are subjected to a separate, substandard legal system solely because of their race."
ESCAPING THE ICWA PENALTY BOX: IN DEFENSE OF EQUAL PROTECTION FOR INDIAN CHILDREN
In early 2016, a six-year-old Californian girl named “Lexi” was taken from the arms of her weeping foster parents, Rusty and Summer Page,1 and sent to live with her step-second-cousin in Utah instead. She had lived with the Pages for four years, after child welfare officials removed her from her drug-addicted mother and incarcerated father.2 Lexi had found love and stability in the Pages’ home. She thought of them as “mommy” and “daddy,” and regarded their other children as her siblings.3 Had this been an ordinary case, they would almost certainly have adopted her.
But Lexi was not like other children. Her great, great, great, great-grandparent was a full-blooded Choctaw Indian. That meant that foster-care and adoption proceedings in her case were governed by the Indian Child Welfare Act of 1978 (ICWA).4 ICWA gives tribal governments extraordinary power to control the fate of abused, neglected, or abandoned Indian children. It overrides the “best interests of the child” standard, hampers efforts to protect abused children, and imposes race-based restrictions on foster care or adoption of Indian kids.
To read more click the link: