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 funding for an investigation into a possible lawsuit in
Federal Court that will address this assault on their right to a safe and permanent home.
Please help fund the investigation.
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 article below makes us think there is hope.
Please pass along to family and friends.
Ending the law’s injustice to Indian children—and parents.
It’s hard to imagine the misery of a mother whose child is snatched from her arms. It’s an agony Ingrid Ronan Johnson’s mother experienced on March 18, when Miccosukee tribal police arrived at the maternity ward with an order from a tribal court commanding that 2-day-old Ingrid be taken away. It’s the grief Summer Page felt when—weeping in her southern California driveway—she watched her 6-year-old foster daughter Lexi driven away by county officials at the behest of the Mississippi Choctaw tribe and sent to live in Utah. It’s the frustration of a Tohono O’odham mother known in court documents as Justine, who was barred by Arizona judges from letting her new husband adopt her son. And it’s the anguish that a Texan mother called J. J. suffered when her own tribe’s government vetoed the adoption she’d arranged and ordered her baby boy sent to New Mexico to live with strangers.
These traumatic stories are the consequences of a federal law called the Indian Child Welfare Act (ICWA), which was passed in 1978 in an effort to protect Indian families from unjust intrusions by state governments. But today it often devastates the families it was supposed to protect.
For decades before the ICWA was passed, child welfare officials often took Indian children from their parents, sometimes on flimsy pretexts, and sent them to live with white families or in boarding schools where they were punished for speaking tribal languages or practicing tribal religions. Many were abused or molested. But ICWA went beyond ending such abusive practices. It also expanded the power of tribal governments—placing them, as the Supreme Court put it, “on a parity” with parents. In practice, that means tribal officials can block adoptions parents agree to and even veto a mother’s efforts to protect her kids.
The problems begin with ICWA’s expansive definition of “Indian children.” ICWA applies not just to tribal members but to children who are “eligible for membership” and are the biological children of members. Every tribe has its own eligibility criteria, but all are based exclusively on genetics. That means a child like Lexi, who has no cultural connection to a tribe—speaks no tribal language, practices no Native religion, does not live on a reservation—qualifies as “Indian,” whereas a child raised on a reservation by Native parents would not qualify if she doesn’t fit the racial profile. DNA is all that matters.
ICWA, then, subjects Indian children to rules that differ from those that apply to kids of all other races. It overrides the “best interests of the child” rule and segregates the kids by race, even if this is contrary to the wishes of parents.
That’s what happened in an Arizona case last year when Justine, a tribal member who lives off reservation, asked a state judge to terminate the rights of her ex, then in jail for several violent crimes, so that her new husband could adopt her boy. Had the child been of any other race, ordinary state law would have applied—which requires a parent to prove by “clear and convincing evidence” that terminating the other parent’s rights is warranted. That rule was adopted in 1982, when the U.S. Supreme Court ruled that the lenient “preponderance of the evidence” standard was too lax in termination cases, but that the stringent “beyond a reasonable doubt” requirement was too severe. Today, every state uses the “clear and convincing” rule because the more strict “reasonable doubt” standard, as the Supreme Court said, “would erect an unreasonable barrier to state efforts to free permanently neglected children for adoption.”
ICWA, however, overrides state law and mandates the “beyond a reasonable doubt” standard instead. It also requires testimony from expert witnesses. That’s a more stringent requirement than applies in criminal courts, meaning that it’s easier to put defendants on death row than to terminate parental rights in cases involving Indian children. An Arizona judge therefore forbade Justine from terminating her ex’s rights and from completing the adoption. A different rule would have applied if her son had been white.
ICWA wasn’t meant to police family disputes. But because it applies to all cases involving Indian children, it’s regularly invoked in such cases. That’s what happened in the case of baby Ingrid. According to news reports, tribal police removed her from the hospital thanks to an order that the baby’s grandmother obtained from a tribal court, based on allegations the grandmother levied against the baby’s father. ICWA lets tribal courts issue orders in cases involving children who are genetically entitled to tribal membership, even if they and their parents don’t reside on tribal lands. But state courts are normally asked to approve such orders before they’re executed. Because no such approval occurred in Ingrid’s case, tribal officers were forced to surrender the child a few days later.
But because ICWA applies to children based on their genetics, it’s not unusual for tribal courts to assert authority without regard to the geographical and constitutional limits on their jurisdiction. Those limits normally prevent judges from deciding cases involving people who lack what lawyers call “minimum contacts” with the court’s location. The Constitution forbids, for instance, a Maine judge from deciding an adoption case in Texas, even if the child’s grandparents once lived in Maine. ICWA, by contrast, gives tribal governments power to force state judges to transfer child welfare cases into tribal court even if the child lacks “minimum contacts” with the tribe.
In one ongoing California lawsuit, three Fresno-area orphans whose parents were killed in a car accident are the focus of a custody fight between non-Native relatives and the Miwok tribe, of which their father was a member. Although the children never lived on tribal lands—located nearly 200 miles away—a tribal judge commanded that the children be handed over.
To read the whole article go to the web site below.
Timothy Sandefur is vice president for litigation at the Goldwater Institute, which represents litigants in several cases challenging ICWA, including the Ohio, Arizona, and California cases discussed above.
NEW: TX Judge Says ICWA Violates American Indian Children’s Right to Equal Treatment
"A federal judge in Texas today ruled that a federal law subjecting Indian children to substandard treatment solely on the basis of their race is unconstitutional. The case is a major victory in a legal campaign to reform the Indian Child Welfare Act (ICWA), a 1978 federal law that overrides state child-welfare law and essentially bars adoption of Indian children by non-Indian adults."
“Today’s decision is a great victory for the rights of Native American children throughout the United States, who deserve the same strong protections against abuse and neglect as their peers of other races,” said Timothy Sandefur, Vice President for Litigation at the Goldwater Institute, which litigates ICWA cases through its Equal Protection for Indian Children project and filed a friend of the court brief in the case. “ICWA denies them that protection and prioritizes their race over all other considerations. That’s immoral, and today’s decision rightly holds that it’s also unconstitutional.”
The lawsuit was brought by a group of parents, children, and state attorneys general who argued that ICWA’s restrictions on child-protection, foster care, and adoption violate constitutional prohibitions on racial discrimination and intrude on matters that the Constitution reserves to the states.
Among the plaintiffs are the foster parents of a 2-year-old boy referred to as A.L.M., who met with difficulty when they filed the paperwork to legally adopt him. Because the boy is part Navajo and part Cherokee, he qualifies as an Indian child under ICWA. Thus even though A.L.M.’s birth parents approved of the adoption, tribal officials were allowed to object and to begin a process to send him to live with strangers on a New Mexico reservation instead.
A state court agreed, and only quick action by the Texas Court of Appeals barred A.L.M. from being taken away from the only parents he has ever known. Tribal officials later allowed the adoption to proceed, state attorneys general from Texas, Louisiana, and Indiana filed the federal lawsuit on behalf of A.L.M. and other kids whose right to equal treatment before the law is violated by ICWA.
ICWA, Sandefur notes, overrides state law of child welfare when it comes to Indian children. And ICWA does not apply only to children who are tribal members, but also to children who are “eligible” for membership—which depends solely on genetic ancestry. ICWA even overrides the “best interests of the child” rule that applies to cases involving children of other races. “It’s illegal to delay or deny an adoption based on a person’s race, with a single exception: Indian children,” said Sandefur. “That’s wrong. It’s time that these kids got the same strong protections all other kids receive.”
Read more about Brackeen v. Zinke here.
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: