ICWA Placement Preferences:
Implications of “Baby Veronica” and
Beyond
Melony Lockwood, Sydney Tarzwell, Tina Reigh
Alaska Legal Services Corp.
BIA Providers’ Conference
Dec. 5, 2013
Outline of Session
Placement Preferences Overview
 Case Law Update

◦ Tununak v. State (Tununak I & Tununak II)
◦ Adoptive Couple v. Baby Girl (“Baby
Veronica”)
Table discussion about cases
 Impact of cases
 New resource to help with placements

Indian Child Welfare Act: Policy

§ 1902. The Congress hereby declares
that it is the policy of this Nation to
protect the best interests of Indian
children and to promote … the
placement of such children in foster or
adoptive homes which will reflect the
unique values of Indian culture…
Placement Preferences:
Adoption
ICWA § 1915(a)
In any adoptive placement of an Indian child
under State law, a preference shall be given,
in the absence of good cause to the
contrary, to a placement with
(1) a member of the child's extended family;
(2) other members of the Indian child's tribe;
(3) other Indian families.
Placement Preferences:
Foster Care and Pre-Adoptive
ICWA § 1915(b)
 the least restrictive setting which most
approximates a family,
 within reasonable proximity to his or her
home,
 taking into consideration the child’s
special needs.
Placement Preferences:
Foster Care and Pre-Adoptive(cont.)
Preference shall be given, in the absence of good
cause to the contrary, to a placement with-1. a member of the Indian child's extended family;
2. a foster home licensed, approved, or specified
by the Indian child's tribe;
3. an Indian foster home licensed or approved by
an authorized non-Indian licensing authority; or
4. an institution for children approved by an Indian
tribe or operated by an Indian organization
which has a program suitable to meet the Indian
child's needs.
Native Village of Tununak v. State of Alaska
303 P.3d 431 (Alaska 2013)
July 2008
4 month-old “Dawn” removed from her mom in
Anchorage for mental health and substance abuse
issues.
Tribe intervened and gave a list of placements.
Grandma, “Elise,” who lived in the village was at the
top of the list.
Tribe met with OCS about placement.
September 2008
Tribe met with OCS about placement.
OCS decided Elise was not an option because a
relative in her home had a barrier crime.
Tununak – Timeline (cont.)
November 2008
- Parties all agreed that keeping Dawn in Anchorage
was ok in an effort to reunify mom and Dawn.
August 2009
- Elise’s relative that caused a barrier crime moved
out; Elise told OCS she was still interested in being
a placement.
Tununak – Timeline (cont.)
October 2009
- Tribe asked OCS to do a walk-through of Elise’s home.
OCS made recommendations to Elise.
- Dawn placed with Smiths—adoptive placement.
November 2009
- At a 6-month conference, OCS noted that Elise is
available and interested in permanent placement.
November 2010
- Court denied OCS’ request to terminate parental
rights, because it had not made “active efforts.”
Tununak – Timeline (cont.)
September 2011
- OCS’ second petition to terminate parental rights was
granted.
- Elise asked to be Dawn’s permanent placement.
- OCS denied Elise’s request, so she requested a
placement review.
November 2011
- The Smiths filed for adoption (Nov. 3).
- Placement review hearing held (Nov. 14).
Tununak – Placement Review
At the placement review hearing, the judge heard about:
 Dawn’s need for stability.
 The long-term damage of being separated from her culture.
 Elise’s suitability as a placement.
Court denied Tribe’s objection to placement with the nonNative family:
 It was in Dawn’s best interests to stay with the non-Native family
because it would be traumatic to move her from “the only family
that [Dawn] knows.”
 Elise not a suitable placement because she was 67 years old.
Tribe appealed Placement decision to the Alaska Supreme
Court.
Tununak - Adoption
- Tribe asked that the court hold off on deciding the
adoption, pending the appeal of the placement
decision.
- Court went forward with the adoption, but warned
the adoptive family that since the placement was being
appealed, the adoption could be set aside.
- Tribe objected to the adoption on ICWA grounds.
- Court granted the adoption.
- Tribe appealed the adoption to the Alaska Supreme
Court.
Alaska Supreme Court:
“Tununak I” (Foster Care Placement)
Tribe argued two main issues:
1. Court misapplied “good cause” to deviate from
ICWA:
 “Best interests” can’t mean anything the court/OCS wants it to
mean or ICWA loses effectiveness.
 Dawn’s bond with the foster family was result of failure to
honor ICWA.
 Grandmother being “too old” is not a legitimate reason to
deny placement.
1. Court applied wrong legal standard to the
question of whether good cause existed to
deviate from ICWA’s placement
(“preponderance of the evidence” vs. “clear and
convincing evidence”).
“Tununak I” (Foster Care Placement)

OCS argued that court applied the correct legal
standard and correctly evaluated Dawn’s best
interests.

The Tribe won.

Alaska Supreme Court reversed and remanded:
Native Village of Tununak v. Dep’t of Health & Soc.
Servs., 303 P.3d 431 (Alaska 2013)
“Tununak I” (Foster Care Placement)
The Alaska Supreme Court DECIDED:
 “Best interests” is the appropriate evaluation for whether
good cause exists to deviate from ICWA’s placement
preferences, and court evaluated appropriate factors.
 BUT before a court looks into whether good cause exists,
court must first evaluate whether ICWA placements are
suitable.
  Must do that evaluation under the prevailing norms of the
Native community.
CINA judge applied wrong legal standard: correct legal
standard is clear and convincing evidence.
What does the “Tununak I” decision mean?
A. In a placement review, court has to do a two-step
analysis:
1. Are there any suitable ICWA-compliant
placements? Evaluated under Native community’s
norms.
2. Does good cause exist to deviate from placement
preferences?
B. OCS has to meet high burden – clear and
convincing evidence – to show that good cause
exists to deviate from ICWA’s placement
preferences.
Native Village of Tununak v. State of Alaska
“Tununak II” (pending in Alaska Supreme Court)
◦ Court stayed the adoption appeal until the
placement appeal was resolved; after issuing
Tununak I, it asked the parties what should be
done with adoption appeal.
◦ Four days later, US Supreme Court issued
Adoptive Couple v. Baby Girl.
Adoptive Couple v. Baby Girl
133 S. Ct. 2552 (2013)
FACTS:

Child’s non-Native mother and Native father (Cherokee Nation) were
engaged to be married, but the engagement was later broken off.

Shortly thereafter, the mother sent father a text message asking if he
would rather pay child support or relinquish his parental rights. Dad
agreed (via text) to relinquish his rights, but thought he was relinquishing
to Mother.

Mother arranged for a private adoption, without telling the father.

Mother knew of father’s Cherokee heritage, but her attorney contacted
the Cherokee Nation with the father’s misspelled name and incorrect
DOB.

September 2009: Adoptive couple was at the birth, and baby went to
South Carolina with the couple a few days after her birth. The immediately
filed for adoption.
Baby Girl (facts continued)

Four months later, father served with the adoption
papers.

Father believed he was signing papers relinquishing his
rights to the birth mother.

The next day, he consulted an attorney, and quickly
asked the court to hold off on the adoption because
he was getting deployed to Iraq in a week.

Father in Iraq for 11 months.

Court delays for another 9 months.
Baby Girl (facts continued)

September 2011: adoption trial; dad won and Baby Veronica
returned to dad.

South Carolina Supreme Court:
◦ Under state law dad’s rights should be terminated and child should be
adopted out.
◦ BUT, ICWA provides heighten protections to dad.
◦ Adoptive Couple did not prove:
1.
Being with dad would cause serious emotional or physical harm.
2.
“Active efforts” were provided to prevent the breakup of the
Indian family.
◦ Even if the couple had proven those things, the placement preferences
would come into play.

Adoptive Couple appealed to the US Supreme Court.
Adoptive Couple v. Baby Girl

Three ICWA provisions implicated:
◦ Section 1912(d): “active efforts”
◦ Section 1912(f): continued custody will result
in physical or emotional harm.
◦ Section 1915(a): adoption placement
preferences
Baby Girl: Active Efforts
1912(d) Remedial services and
rehabilitative programs; preventive
measures.
Any party seeking to effect a … termination of
parental rights to, an Indian child under State
law shall satisfy the court that active efforts
have been made to provide remedial services
and rehabilitative programs designed to
prevent the breakup of the Indian family and
that these efforts have proved unsuccessful.
Baby Girl: Active Efforts (cont.)
DECISION: Section 1912(d) only applies where an
Indian family’s “breakup” would be caused by the
termination of parental rights.
REASONING:
1. If a parent abandons a child before birth and child
has never been in parent’s legal or physical custody,
then there is no relationship that is being
discontinued.
2.
Unreasonable to expect an adoptive family to
“stimulate” a dad’s desire to be a parent. That puts
adoptive family in a situation where they would not
want to adopt.
Baby Girl: Active Efforts (cont.)
“Section 1912(d) is a sensible requirement
when applied to state social workers who
might otherwise be too quick to remove
Indian children from their Indian families. It
would, however, be unusual to apply Sec.
1912(d) in the context of an Indian parent
who abandoned a child prior to birth and
who never had custody of the child.”
Baby Girl: Emotional/Physical Harm
1912(f) Parental rights termination
orders; evidence; determination of
damage to child.
No termination of parental rights may be
ordered … in the absence of a
determination, … including testimony of a
qualified expert witness, that the continued
custody of the child is likely to result in
serious emotional or physical damage
to the child.
Baby Girl: Emotional/Physical Harm
DECISION: 1912(f) did not apply because
the Indian parent never “had custody of the
Indian child.”
REASONING: When an adoption is
voluntary and initiated by non-Indians
with sole custodial rights, the goal of
ICWA is not implicated. Here, Dusten
Brown never had physical or legal custody
of Veronica.
Baby Girl: Caveat?
“We should decide here no more than is
necessary. Thus, this case does not involve
a father with visitation rights or a father
who has paid all of his child support
obligations. Neither does it involve special
circumstances such as a father who was
deceived about the existence of the child
or a father who was prevented from
supporting his child.”
- Justice Breyer (concurrence)
Baby Girl: Placement Preferences
1915(a) Adoptive placements;
preferences
In any adoptive placement of an Indian child
under State law, a preference shall be given, in
the absence of good cause to the contrary, to
a placement with
(1) a member of the child’s extended family;
(2) other members of the Indian child’s tribe;
or
(3) other Indian families.
Baby Girl: Placement Preferences
DECISION: The placement preferences of 1915(a) do
not apply in cases where no alternative party has
formally sought to adopt the child.
REASONING:
1. There is no “preference” to apply if no other party
has come forward.
2. Bio dad is not covered because he didn’t seek to
adopt baby.
3. Court wants to avoid situation where dad
abandons child in utero and refuses to pay child
support after birth and then at the last minute uses
ICWA to override mother’s decision to adopt.
Baby Girl: Placement Preferences

Tip from Justice Breyer:
Section 1913(c) allows the
Tribe to establish a different
order of preference by
resolution.
“Tununak II” (Adoption Placement)
ARGUMENTS:
◦ OCS said that pursuant to Baby Girl, because Elise
never filed an adoption petition, ICWA’s
placement preferences are irrelevant.
◦ Tribe said:
 Babu Girl was a voluntary private adoption, not a statedriven child welfare case: the decision in Baby Girl
doesn’t control here.
 Elise did formally request to adopt Dawn.
  Because adoption was based on incorrect placement
decision, it should be vacated and remanded to the trial
court to be addressed along with the placement issue.
Where are we after Tununak I and
Baby Girl?
Foster care placements: must look at
Tribe’s cultural norms.
 Adoptive placements: if there is only one
family trying to adopt, the placement
preferences do not apply.
 No active efforts for unwed dads who
never had custody??
 OCS does not need to prove serious
harm by unwed dad who never had
custody??

Small Group Activity
On the yellow paper:
1.
What changes might happen in Child-In-Needof- Aid (CINA) cases as a result of these court
cases?
•
•
•
•
2.
What happens if OCS takes custody of child at birth?
What will happen to unwed dads who never lived with
their child?
What else?
On the white paper: write down any
questions you have about the cases
discussed.
Concerns
Unwed dads—especially when child taken
away as a newborn
 1912(e) foster care placement—has same
“continued custody” language of 1912(f)
 Fast-tracking termination

Practice Tips

The best way to enforce ICWA is to find Native placements
early on in CINA cases. Encourage family members not to
wait to ask for placement.

If the Tribe disagrees with a proposed state court adoption
and knows an ICWA-compliant family who wants to adopt,
help them file a petition to adopt with the state court ASAP.

To avoid state court entirely: transfer cases into Tribal Court.

To ensure that unwed fathers are a priority for placement,
Tribes may include them as a placement preference by
resolution. The state court must follow that resolution.

When in doubt, ask for help! ALSC is here to help.
Record of Placement

Problem faced by many tribes: Native
children are being placed in non-Native,
non-ICWA compliant homes

New tool to assist Tribes not represented
by an attorney.
What Power Does the Tribe Have?
Section 1915(e) Record of placement;
availability
“A record of each such placement, under
State law, of an Indian child shall be
maintained by the State in which the
placement was made, evidencing the efforts
to comply with the order of preference
specified in this section. Such record shall
be made available at any time upon the
request of … the Indian child's tribe.”
How does the Tribe Exercise its
Power?
1. Send letter to OCS.
2. If response is inadequate, file Motion to
Compel (see www.alaskatribes.org: click on
“state court forms” and “motion to
compel”)
Outcome?
TBD
 Motion has yet to be tested
 Legal framework for the Motion and the
Order in place, but how courts and OCS
will respond can’t be predicted

Value of Motion Packet
Notify the judge early
 Empower the Tribe to hold OCS
accountable
 Expand search for Native homes
 Force OCS to produce a record

* Does not necessarily change placement.
In Closing
“[I]t is the policy of
this Nation to
protect the best
interests of Indian
children and to
promote the … the
placement of such
children in foster or
adoptive homes
which will reflect the
unique values of
Indian culture…”
ICWA Sec. 1902.
Contact Information: ALSC
Anchorage
(888) 478-2572
Barrow
(855) 755-8998
Bethel
(800) 478-2230
Bristol Bay
(888) 391-1475
Juneau
(800) 789-6426
Fairbanks
(800) 478-5401
Ketchikan
(877) 525-6420
Kenai
(855) 395-0352
Kotzebue
(800) 622-9797
Palmer
(907) 746-4636
Nome
(888) 495-6663