Last updated: January 6, 2017
Next update should be ready by: January 20, 2017
*Synopsis: After prospective parents filed petition to adopt three children, prospective mother died. Indian tribe intervened. Prospective father and tribe filed motion to allow mother to posthumously adopt the children. The Superior Court, Pima County, No. B25793, Jane Butler, Judge Pro Tempore, denied the motion. Father and tribe appealed.
*Holdings: The Court of Appeals, Vásquez, P.J., held that prospective adoptive motion was not permitted to posthumously adopt three children.
Affirmed.
*Synopsis: City brought action challenging the constitutionality of statutory provision, which required Indian tribes taking advantage of property tax exemption for tribal property to make payment in lieu of leasehold excise taxes if property was not leased. The Superior Court, King County, Mary E. Roberts, J., granted partial summary judgment in favor of the city. Department of Revenue appealed to Supreme Court, and Supreme Court retained the case for review.
*Holdings: The Supreme Court, Owens, J., held that:
1) city had direct standing to challenge constitutionality of statutory provision under more liberal standing requirements for cases of public importance, and
2) payment in lieu of leasehold excise taxes was not a "tax," and thus, payment was not subject to State Constitution's tax requirements.
Reversed.
*Synopsis: The People brought action against five payday lenders for injunctive relief, restitution, and civil penalties for violations of the of the Deferred Deposit Transaction Law (DDTL). Two lenders controlled by Indian tribes specially appeared and moved to quash service of summons. The Superior Court, Los Angeles County, No. BC373536, Joseph R. Kalin, J., denied motion. Lenders filed petition for writ of mandate. The Court of Appeal denied petition. Companies filed petition for review. The Supreme Court granted petition and transferred the matter to the Court of Appeal. The Court of Appeal granted petition in part and denied it in part, 169 Cal.App.4th 81, 86 Cal.Rptr.3d 572. The Superior Court, Yvette M. Palazuelos, J., quashed service of summons and dismissed the case for lack of subject matter jurisdiction. The People appealed, and the Court of Appeal affirmed. The Supreme Court granted review, superseding the opinion of the Court of Appeal.
*Holdings: The Supreme Court, Liu, J., held that:
1) entity asserting tribal immunity bears the burden of showing by a preponderance of the evidence that it is an "arm of the tribe";
2) when determining whether an entity is an "arm of the tribe" entitled to tribal immunity, courts should apply a five-factor test that considers (1) the entity's method of creation, (2) whether the tribe intended the entity to share in its immunity, (3) the entity's purpose, (4) the tribe's control over the entity, and (5) the financial relationship between the tribe and the entity; abrogating Trudgeon v. Fantasy Springs Casino, 71 Cal.App.4th 632, 84 Cal.Rptr.2d 65, Redding Rancheria v. Superior Court, 88 Cal.App.4th 384, 105 Cal.Rptr.2d 773, and American Property Management Corp. v. Superior Court, 206 Cal.App.4th 491, 141 Cal.Rptr.3d 802; and
3) lenders did not have immunity under the "arm of the tribe" doctrine.
Reversed and remanded.
Related News Stories: California Supreme Court declines to extend tribal sovereign immunity to payday lending businesses (JD Supra) 1/10/17, Tribal sovereign immunity not a bar to payday lending enforcement action, California Supreme Court rules (JD Supra) 1/04/17
*Synopsis: Interest group filed complaint against Indian tribe, Governor, Attorney General, the California Gambling Control Commission, the Bureau of Gambling Control and the State of California, challenging Governor's authority to concur in the decision of the Secretary of the United States Department of the Interior to take land into trust for defendant Indian tribe for the purpose of operating a casino for class III gaming. The Superior Court, Madera County, No. MCV062850, Michael J. Jurkovich, J., sustained demurrers and dismissed complaint. Interest group appealed.
*Holdings: The Court of Appeal, Smith, J., held that:
1) under the circumstances, Governor was without concurrence authority;
2) interest group's claims against state defendants other than Governor were not moot; and per concurring and dissenting opinion of Franson, J., for a majority of the court,
3) Governor was without inherent executive authority to concur in Secretary's determination.
Reversed and remanded with directions.
Related News Stories: Court strikes big blow against North Fork Rancheria casino bid (Indianz) 12/13/16
*Synopsis: Maternal grandparents and guardians of minor child brought petition seeking to terminate parental rights and to adopt the child whose mother was member of Indian tribe. The County Court, Saunders County, Patrick R. McDermott, J., denied petition. Grandparents appealed.
*Holdings: The Supreme Court, Kelch, J., held that:
1) breakup of an Indian family would not be precipitated by the termination of non-Indian father's parental rights, and thus, the active efforts element set forth in the federal Indian Child Welfare Act of 1978 (ICWA) did not apply to the termination of father's parental rights to his Indian child;
2) requirement that active efforts be made to unite parent with Indian child set forth in the Nebraska Indian Child Welfare Act (NICWA) applied to the termination of non-Indian father's parental rights to his Indian child; and
3) non-Indian father never had custody of his Indian child, and thus, the serious emotional or physical damage element set forth in ICWA and NICWA did not apply to the termination of father's parental rights.
Reversed and remanded.
*Synopsis: County children and family services agency filed petition against mother and father to terminate their parental rights to minor children, who potentially had Indian heritage. Following hearing, the Superior Court, Mendocino County, Nos. SCUK-JVSQ-14-1702501 and SCUK-JVSQ-14-1702601, David Riemenschneider, J., found both children adoptable, that exception to adoption for sibling bond did not apply, and that Indian Child Welfare Act (ICWA) did not apply, and terminated parental rights. Mother and father appealed.
*Holdings: The Court of Appeal, Dondero, J., held that trial court failed to comply with notice requirements of ICWA and state law.
Reversed and remanded with directions.
*Synopsis: Cherokee Nation filed petition to transfer guardianship action regarding Indian children to Cherokee Nation District Court, to which children's guardians objected. The District Court, Okfuskee County, Lawrence W. Parish, J., denied transfer. Cherokee Nation appealed.
*Holdings: The Court of Civil Appeals, Jane P. Wiseman, P.J., held that guardians failed to comply with notice and reunification requirements, and thus advanced stage of proceeding did not constitute good cause preventing transfer to tribal court.
Reversed and remanded with directions.
*Synopsis: Native American tribe brought declaratory judgment action against Department of Revenue seeking fuel tax refund. The Circuit Court, Leon County, John C. Cooper, J., dismissed action on res judicata grounds. Tribe appealed.
*Holdings: The District Court of Appeal, Roberts, C.J., held that declaratory judgment action seeking refund of fuel tax was barred by res judicata.
Affirmed.
*Synopsis: After children were adjudicated as neglected, State filed petitions to terminate parental rights of mother and father. Following fitness and best-interest hearings, the Circuit Court, Cook County, Nicholas Geanopoulos, J., entered orders terminating mother's and father's parental rights. Mother and father filed separate appeals, and appeals were consolidated.
*Holdings: The Appellate Court, Hoffman, P.J., held that:
1) State proved, by clear and convincing evidence, that father was unfit on ground that he failed to make reasonable progress toward return of child and failed to make reasonable efforts to correct the conditions that were the basis for removal of child;
2) circuit court's finding that it was in the best interest of child to terminate father's parental rights was not against the manifest weight of the evidence; but
3) circuit court had reason to know that children might be Indian children, thereby triggering the notice requirements of Indian Child Welfare Act (ICWA).
Vacated and remanded with directions.
*Synopsis: Arbitration panel found in favor of bank in dispute with Indian tribe after tribe stopped making lease payments for slot machines. The District Court, Oklahoma County, Patricia G. Parrish, J., confirmed arbitration award, and tribe appealed.
*Holdings: The Court of Civil Appeals, Fischer, J., held that:
1) Federal Arbitration Act (FAA) prohibited Court of Civil Appeals from expanding scope of its review of arbitration award, and
2) arbitrators did not exceed their authority.
Affirmed.
*Synopsis: County child welfare agency filed dependency petition. The Superior Court, Los Angeles County, No. CK81121, Emma Castro, Commissioner, terminated parental rights. Mother appealed.
*Holding: The Court of Appeal, Bigelow, P.J., held that agency provided adequate ICWA notice to conclude child was not a member of tribe, including copy of mother's membership card.
Affirmed.
*Synopsis: Indian mother and her husband petitioned to terminate non-Indian biological father's parental rights to Indian son and to allow husband to adopt son. The Superior Court, Pacific County, Douglas E. Goelz, J., granted petition. Father appealed. The Court of Appeals, 188 Wash.App. 799, reversed and remanded. Mother and husband appealed.
*Holdings: After grant of discretionary review, the Supreme Court, Fairhurst, J., held that:
1) whether a parent whose rights are being terminated is non-Indian is immaterial to a finding that the federal Indian Child Welfare Act (ICWA) and Washington Indian Child Welfare Act (WICWA) apply to the termination proceeding;
2) as a matter of apparent first impression, ICWA and WICWA apply to stepparent adoption cases;
3) provisions of ICWA and WICWA requiring that active efforts be undertaken to remedy and rehabilitate the parents of Indian children before their parental rights may be terminated apply to both state-initiated and privately-initiated terminations; and
4) "existing Indian family" exception to application of ICWA was legislatively overruled by enactment of WICWA; overruling In re Adoption of Crews, 118 Wash.2d 561, 825 P.2d 305.
Affirmed and remanded.
Related News Stories: Washington Supreme Court opinion clarifies rights of parents under ICWA, WICWA (MyNewsNetwork) 10/27/167 (Turtle Talk Materials)
*Synopsis: Owner of existing Indian casino filed a petition for writ of mandate and complaint for declaratory relief challenging Governor's concurrence with the Secretary of the Interior's determination under Indian Gaming Regulatory Act (IGRA) that a parcel of land acquired after 1988 was suitable for a proposed competing Indian casino. The Superior Court, Sacramento County, No. 34–2013–80001412CUWMGDS, Eugene L. Balonon, J., dismissed. Owner of existing casino appealed.
*Holdings: The Court of Appeal, Blease, Acting P.J., held that:
1) Governor's concurrence that land is suitable for Indian gaming is not a legislative act and thus does not violate the separation of powers doctrine, and
2) Governor did not exceed his authority in conducting negotiations before parcel became "Indian land."
Affirmed.
Related News Stories: One tribe can't stop another tribe's casino (Courthouse News) 10/17/16, Court upholds governor's power to allow Indian casinos (KPCC) 10/14/15
*Synopsis: County child welfare agency filed dependency petition as to two daughters. The Superior Court, Los Angeles County, No. DK02646, Zeke D. Zeidler, J., terminated parental rights and transferred care, custody, and control of the daughters to the county child welfare agency for adoptive planning and placement. Mother appealed.
*Holdings: The Court of Appeal, Perluss, P.J., held that county child welfare agency failed to adequately investigate mother's Indian Child Welfare Act (ICWA) claim of Indian ancestry.
Conditionally affirmed and remanded with directions.
*Synopsis: State moved to terminate natural mother's parental rights, default order was entered against mother, and Indian tribe intervened after mother became enrolled citizen of tribe. The District Court, Rogers County, Stephen R. Pazzo, J., granted tribe's motion to transfer the case to tribal court under the Indian Child Welfare Act (ICWA). State and foster mother appealed.
*Holdings: The Supreme Court, Taylor, J., held that:
1) ICWA applied to proceeding, and
2) good cause to prevent transfer was not established by clear and convincing evidence.
Affirmed.
Related News Stories: Important ICWA case out of Oklahoma on application and transfer to tribal court (Turtle Talk) 9/14/16
*Synopsis: Purported niece of intestate decedent objected to petition filed by other niece to determine heirs and for other niece's assignment as personal representative. The Circuit Court, First Judicial Circuit, Brule County, Bruce V. Anderson, J., determined that purported niece lacked standing. Purported niece appealed. The Supreme Court, Gilbertson, C.J., 811 N.W.2d 749, reversed and remanded. On remand, the Circuit Court, First Judicial Circuit, issued judgment declaring heirship, finding purported niece to be heir of intestate decedent. Other nieces appealed.
*Holdings: The Supreme Court, Kern, J., held that:
1) federal statute that granted the Department of the Interior exclusive jurisdiction and authority to probate Indian lands held in trust did not apply to purported niece's objection to petition to determine heirs of intestate decedent;
2) Interior Board of Indian Appeals (IBIA) decision that established father's legitimate children as his legal heirs, to the exclusion of his illegitimate daughters, did not preclude purported niece from seeking to determine heirship of father's sister in state court proceeding;
3) purported niece had standing to attack constitutionality of state statute that set forth four methods of establishing paternity;
4) The 12–month statute of limitations for petitions to vacate a probate order did not apply to action to determine heirship of intestate decedent;
5) Code of Federal Regulation that provided an interested party could petition to re-open a closed Indian probate within three years after the date of the original decision, and within one year after the petitioner's discovery of an alleged error, did not operate to preclude purported niece, the illegitimate daughter of Indian father, from seeking to establish heirship of father's deceased sister; but
6) statute that set forth four methods of establishing paternity was not unconstitutional as applied to purported niece under either the state or federal Equal Protection Clauses.
Reversed and remanded.
*Synopsis: Son filed petition for informal probate of will of father, who was a member of an Indian tribe. Tribe filed notice of creditor's claim, seeking to enforce tribal court judgment. The Circuit Court, Sixth Judicial Circuit, Todd County, Kathleen F. Trandahl, J., entered judgment granting comity to tribal court order. Son appealed.
*Holdings: The Supreme Court, Kern, J., held that:
1) tribal court chief judge's appointment of special judge, following recusal of chief judge and associate judges in litigation between tribe and casino developer, of which father was a principal, was authorized under tribal statute governing appointment of judges, as would support decision to grant comity to judgment entered by special judge in favor of tribe, and
2) grant of comity to tribal court judgment did not violate public policy.
Affirmed.
*Synopsis: Mother's husband filed petition to terminate father's parental rights to child so that husband could adopt her. The Superior Court, San Diego County, No. A60345, Edlene C. McKenzie, Commissioner, terminated father's parental rights. Father appealed.
*Holdings: The Court Of Appeal, Irion, J., held that:
1) the one-year period of abandonment referenced in termination statute does not refer solely to the year immediately preceding the filing of the petition to terminate parental rights;
2) evidence supported finding that father intended to abandon child;
3)termination of father's parental rights was in the best interests of child; and
4)trial court's failure to provide proper notice to tribe under Indian Child Welfare Act (ICWA) was not reversible error.
Affirmed.
*Synopsis: Child dependency proceeding was commenced. The Superior Court, Los Angeles County, No. DK11636, Philip L. Soto, J., found jurisdiction over the children and removed them from parental custody, and father appealed.
*Holdings: The Court of Appeal, Perluss, P.J., held that:
1) father's failure to provide children with support, and his incarceration on burglary charges, did not allow trial court to assume jurisdiction over children;
2) statute governing removal of children from the physical custody of a parent or guardian "with whom the child resides at the time the petition was initiated" did not apply to father; and
3) on remand, juvenile court was required to reconsider its decision that the Indian Child Welfare Act (ICWA) did not apply.
Reversed and remanded.
*Synopsis: Following termination of mother and father's parental rights with respect to their minor child, who was an eligible member of an Indian community, the community moved, pursuant to the Indian Child Welfare Act (ICWA), for an order transferring jurisdiction of the remaining proceedings to tribal court. The Superior Court, Maricopa County, No. JD528014, Karen L. O'Connor, J., denied the motion, and the community appealed.
*Holdings: The Court of Appeals, Winthrop, J., held that as matter of first impression, ICWA did not permit transfer of state juvenile court proceedings for post-termination preadoptive and adoptive placements.
Affirmed.
Related News Stories: Arizona Supreme Court limits rights of tribes to intercede in adoption cases (Arizona Capitol Times) 6/13/17, Gila River Indian Community weighs options after losing Indian Child Welfare Act case (Indianz) 8/15/16
*Synopsis: Contractor filed petition to compel mediation and arbitration against Indian tribe, seeking to enforce the mediation and arbitration clauses in agreements pertaining to project to construct new gaming facility on tribe's reservation, stemming from tribe's failure to pay contractor for work completed on project. The Superior Court, Mendocino County, No. SCUKCVG1259929, Jeanine Nadel, J., granted tribe's motion to quash service of summons and to dismiss for lack of subject matter jurisdiction on grounds that tribe had not waived its sovereign immunity. Contractor appealed.
*Holdings: The Court of Appeal, Stewart, J., held that:
1) evidence was sufficient to establish that general council resolution delegating authority to waive sovereign immunity to tribal council was authentic and adopted;
2) tribe's constitution allowed general council to delegate authority to tribal council to waive immunity by adopting resolution; and
3) tribal council waived tribe's sovereign immunity by enacting resolution that included limited waiver of immunity.
Reversed and remanded.
*Synopsis: Patron brought action against the Seminole Tribe of Florida to recover for injuries sustained in slip and fall accident in restroom at tribal casino. Tribe filed motion to dismiss. The Seventeenth Judicial Circuit Court, Broward County, John T. Luzzo, J., denied motion. Tribe appealed.
*Holdings: The District Court of Appeal, May, J., held that:
1) claim that sovereign immunity precluded patron's complaint was properly raised in motion to dismiss;
2) appeal would be treated as petition for writ of certiorari; and
3) where no ordinance or resolution expressly waiving sovereign immunity was in effect at the time of patron's accident, Tribe was immune from suit.
Petition granted.
*Synopsis: County department of health and human services filed dependency petitions as to two children. The Superior Court, Sacramento County, Nos. JD232871 and JD232872, Paul L. Seave, J., directed counsel to make reasonable efforts to enroll the children and their father in a tribe which had notified the court that they were eligible for membership, concluded it was required to treat the eligible minors as Indian children under Indian Child Welfare Act (ICWA), but made jurisdictional findings and placed the children in the custody of their maternal grandmother. Department of health and human services appealed. The Court of Appeal reversed with directions. Father petitioned for review. The Supreme Court granted review, superseding the opinion of the Court of Appeal.
*Holdings: The Supreme Court, Werdegar, J., held that:
1) court rule requiring juvenile court to treat a child eligible for tribal membership as an "Indian child" is invalid, but
2) a court rule validly requires the juvenile court to pursue tribal membership for a child who is already an "Indian child."
Affirmed in part, reversed in part, and remanded.
*Synopsis: County department of children and family services (DCFS) filed dependency petition on behalf of child, who was considered an Indian child under Indian Child Welfare Act (ICWA) and, after child was placed with foster family and efforts to reunify child with father failed, DCFS, father, and Indian tribe recommended that child be placed with extended family . The Superior Court, Los Angeles County, No. CK58667, Amy M. Pellman, J., found that foster parents, who had been granted de facto parent status, failed to prove by clear and convincing evidence that there was good cause to depart from adoptive placement preferences set forth in ICWA and ordered child placed with her extended family. Foster parents appealed. The Court of Appeal, Kriegler, J., 228 Cal.App.4th 1322, reversed and remanded for determination under appropriate standard whether there was good cause to depart from ICWA placement preferences. On remand, the Superior Court, No. CK58667, Trendacosta, J., concluded that foster parents failed to prove good cause by clear and convincing evidence and ordered child transferred to extended family. Foster parents appealed and sought supersedeas writ staying order to transfer child. The Court of Appeal, Kriegler, J., 2015 WL 7572569, treated petition for writ of supersedeas as a petition for writ of mandate in the first instance, issued writ directing the Superior Court to vacate placement order and to issue new placement order applying test set forth on prior appeal, and subsequently dismissed appeal as moot and remanded. On remand, the Superior Court, Los Angeles County, No. CK58667, Rudolph A. Diaz, J., rendered decision from the bench, concluding that foster parents had not shown good cause to depart from ICWA's placement preferences and ordering child removed from foster parents' custody and placed with extended family. Foster parents appealed.
*Holdings: The Court of Appeal, Kriegler, J., held that:
1) trial court did not exceed scope of remand or disregard law of the case by considering impact on child's cultural identity if she were to remain foster parents;
2) good cause to depart from ICWA's placement preferences did not exist as a matter of law;
3) substantial evidence supported finding that there was no good cause to depart from ICWA's placement preferences;
4) any error in excluding full report prepared by bonding and attachment expert was harmless;
5) trial court did not abuse its discretion in considering social worker's report without allowing foster parents to cross-examine him; and
6) trial court did not abuse its discretion by denying foster parents' request to present additional evidence or testimony.
Affirmed.
*Synopsis: Department of Children and Family Services filed a petition alleging that mother's and father's illicit drug use placed child at risk of harm. After jurisdictional and dispositional hearing at which it declined to order notice under the Indian Child Welfare Act of 1978 (ICWA), the Superior Court, Los Angeles County, No. CK91018, Jacqueline H. Lewis, J., entered order terminating parental rights. Mother appealed, and the Court of Appeal affirmed. The Supreme Court granted review, superseding the opinion of the Court of Appeal.
*Holdings: The Supreme Court, Liu, J., held that mother could challenge order terminating parental rights on the ground that ICWA notice was necessary, even if mother could not appeal prior finding that ICWA notice was unnecessary, disapproving In re Pedro N., 35 Cal.App.4th 183, 41 Cal.Rptr.2d 819.
Reversed and remanded.
*Synopsis: Proceedings were initiated to terminate mother's parental rights to two children. The Circuit Court, Kalamazoo County, Juvenile Division, Gerald Scott Pierangeli, J., terminated mother's parental rights to both children. Mother appealed.
*Holdings: The Court of Appeals held that:
1)information regarding father's potential tribal affiliation was sufficient to trigger tribal notification requirements under Indian Child Welfare Act (ICWA);
2)information regarding father's potential tribal affiliation was sufficient to trigger tribal notification requirements under Michigan Indian Family Preservation Act (MIFPA).
3)notice to Secretary of Interior or Bureau of Indian Affairs was insufficient to satisfy notice requirements under ICWA or MIFPA;
4)Department had duty to exercise due diligence to contact Cherokee tribe and any other tribes in county in which proceedings were pending; and
5)trial court did not err in determining termination of parental rights was in children's best interest.
Affirmed as to one child; conditionally reversed and remanded as to other child.
*Synopsis: Adjoining landowner brought action against the Pueblo of San Felipe tribe seeking a declaration that a road, which crossed land owned by the tribe in fee simple, and which landowner used to access its property, was a state public road. Tribe moved to dismiss. The District Court, Sandoval County, John F. Davis, D.J., denied motion. Tribe filed interlocutory appeal, which was granted. The Court of Appeals, Sutin, J., 310 P.3d 631, affirmed. Tribe petitioned for writ of certiorari, which was granted.
*Holdings: The Supreme Court, Vigil, J., held that:
1)tribe had sovereign immunity from suit, and
2)tribal sovereign immunity was properly raised in a motion to dismiss for lack of subject matter jurisdiction.
Reversed with instructions.
*Synopsis: Production company brought suit against Native American tribal corporation for breach of advertising joint venture agreement. The Circuit Court, Seventeenth Judicial Circuit, Broward County, Carlos A. Rodriguez, J., dismissed production company's complaint, and it appealed.
*Holdings: The District Court of Appeal, Gross, J., held that tribe did not waive its sovereign immunity.
Affirmed.
*Synopsis: Indian business and its owner brought action against state Attorney General and state tax commissioner, seeking declaration that requirement that they pre-pay amount of tax to be assessed on sale of cigarettes to non–Indians violated Indian Law and treaties between Seneca Nation and United States, and sought preliminary injunction enjoining enforcement of Tax Law. The Supreme Court, Cattaraugus County, Jeremiah J. Moriarty, III, J., granted defendants' cross motion to dismiss. Plaintiffs appealed.
*Holdings: The Supreme Court, Appellate Division, held that state law requiring Indians to pre-pay cigarette tax to be imposed on non–Indians was not an impermissible tax on Indian land.
Affirmed as modified.
*Synopsis: Mother appealed from decision of the Circuit Court, Seventh Judicial Circuit, Pennington County, Robert A. Mandel, J., terminating her parental rights to Indian child.
*Holding: The Supreme Court, Wilbur, J., held that:
1) State presented sufficient foundational evidence of expertise of Indian tribe member as an Indian Child Welfare Act (ICWA) expert;
2) termination of parental rights case would be remanded for the circuit court to determine whether evidence existed beyond a reasonable doubt that serious emotional and/or physical damage would likely result were child placed in the legal care or custody of mother; and
3) fact that Indian Child Welfare Act (ICWA) expert used the word "injurious," stating that continued custody with mother could be injurious to child, did not mean the evidence was legally insufficient to support termination of mother's parental rights.
Remanded.
*Synopsis: In juvenile dependency proceedings involving two Indian children, the Circuit Court, Lane County, Valeri L. Love, J., entered judgments continuing jurisdiction as to each child and continuing, as to each child, a permanency plan of "another planned permanent living arrangement" (APPLA). Mother, father and children appealed.
*Synopsis: The Court of Appeals, Haselton, S.J., held that:
1) juvenile court did not know or have reason to know, at time of parents' motion to dismiss, that case involved Indian children;
2) juvenile court's ultimate determination that the children were Indian children did not render ICWA retroactively applicable to earlier decisions changing permanency plans; and
3) trial court acted within its discretion in continuing AAPLA permanency plan, rather than changing the plan to adoption.
Affirmed.
*Synopsis: Following denial of motion to suppress, defendant was convicted in the District Court, Lake County, James A. Manley, J., of criminal possession of dangerous drugs. Defendant appealed.
*Holding: The Supreme Court, Laurie McKinnon, J., held that:
1. police officers lawfully arrested defendant for violation of conditions of parole;
2. incident to arrest for violating terms of his parole, police officers could conduct warrantless search of defendant's pants pockets;
3. defendant was not entitled to discovery of communications between law enforcement and other items;
4. amendment to information was not substantive, and thus did not require arraignment; and
5. trial court was not required to inquire further into defendant's complaints regarding counsel.
Affirmed.
*Synopsis: Owners of landlocked lots brought action for easement by necessity against neighbors, including United States, which held number of neighboring lots in trust for Native American tribe, claiming easements by necessity. After United States was dismissed on sovereign immunity grounds, the Land Court Department, Suffolk County, Mark V. Green, J., granted neighbors' motion to dismiss, and the court, Leon J. Lombardi, J., denied motion to amend to join tribe directly as a party and entered partial judgment. On appeal, the Appeals Court, 64 Mass.App.Ct. 285, 833 N.E.2d 157, reversed and remanded. On remand, the Land Court Department, Charles W. Trombly, Jr., J., 2010 WL 3192458, ruled that easements by necessity did not exist. Owners appealed. The Appeals Court, 87 Mass.App.Ct. 10, 22 N.E.3d 981, reversed. Application for further appellate review was granted.
*Holding: The Supreme Judicial Court, Spina, J., held that parties at time of partition did not demonstrate intent to create easements by necessity.
Judgment of the Land Court affirmed.
Legal Topics: Indian Child Welfare Act - Application of
*Synopsis: In child protection proceeding, the Mackinac Circuit Court ordered that county child care fund was not required to pay administrative rates. Predecessor to Department of Health and Human Services sought interlocutory relief. The Court of Appeals denied application. Department sought leave to appeal. The Circuit Court, Mackinac County, W. Clayton Graham, J., remanded for consideration as on leave granted.
*Holdings:On remand, the Court of Appeals, Boonstra, P.J., held that fund was responsible for paying administrative rates.
Reversed and remanded.
*Synopsis: The Department of Family and Protective Services sought to terminate mother's parental rights to child. The 288th Judicial District Court, Bexar County, No. 2012-PA-00377, Charles E. Montemayor, J., terminated parental rights. Mother appealed.
*Holding: The Court of Appeals, Patricia O. Alvarez, J., held that:
1) the Department was not required to provide notice to an Indian tribe or the Bureau of Indian Affairs, as required by Indian Child Welfare Act (ICWA), of termination of parental rights proceeding;
2) evidence supported finding that child did not qualify as an Indian child under the ICWA; and
3) evidence supported finding that termination of mother's parental rights was in child's best interest.
Affirmed.
*Synopsis: Girlfriend petitioned for an order of protection from boyfriend pursuant to the Protection from Domestic Abuse Act. The District Court, Lincoln County, Dawson Engle, J., granted petition. Boyfriend appealed.
*Holding: The Court of Civil Appeals, John F. Fischer, J., held that:
1) as a matter of first impression, domestic abuse was shown by any act of physical harm, whether or not harm was deemed to be serious;
2) proof of domestic abuse required proof of the intent required in civil battery cases;
3) finding that boyfriend intended to commit domestic abuse was not an abuse of discretion; and
4) girlfriend did not actually litigate whether she was entitled to a protective order against boyfriend under the Act in proceedings on her petition for a protective order that was filed in the tribal court, and thus issue preclusion did not apply.
Affirmed.
*Synopsis: Central Council of Tlingit and Haida Indian Tribes filed action against state, seeking declaratory judgment that its tribal court system had subject matter jurisdiction over child support matters and seeking an injunction requiring the state's child support enforcement agency to recognize tribal courts' child support orders. The Superior Court, First Judicial District, Juneau, Philip M. Pallenberg, J., entered judgment in favor of the tribes. State appealed.
*Holdings: The Supreme Court, Fabe, C.J., held that:
1)tribal courts have inherent, non-territorial subject matter jurisdiction to adjudicate parents' child support obligations, and
2) the power to set nonmember parents' child support obligations is within the retained powers of membership-based inherent tribal sovereignty.
Affirmed.
*Synopsis: Mother's parental rights were terminated by the Second Judicial District Court, Nez Perce County, Michelle Evans, Magistrate Judge, and she appealed.
*Holdings: The Supreme Court, W. Jones, J., held that:
1)trial court's determination that mother neglected child was supported by substantial and competent evidence;
2) Department of Health and Welfare (DHW) made reasonable efforts at reunifying mother and child;
3) trial court was compelled to take judicial notice of transcript of adjudicatory hearing upon prosecutor's request; and
4) trial court's overruling of mother's objections to Indian tribe's responses to DHW's Indian Child Welfare Act (ICWA) notices did not warrant reversal.
Affirmed.
*Synopsis: Motor vehicle driver and passenger brought action against Indian tribe member, claiming member's negligence and carelessness in driving limousine, which was owned by tribal gaming authority, caused motor vehicle accident. The Superior Court, Judicial District of New London, Cole-Chu, J., 2014 WL 5354956, denied member's motion to dismiss based on tribal sovereign immunity. Member appealed.
*Holdings: The Supreme Court, Eveleigh, J., held that tribal sovereign immunity extended to claims.
Reversed and remanded with direction.
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*Synopsis: Prospective adoptive parents filed a petition for adoption which also sought to terminate mother and father's parental rights and an order determining that child was eligible for adoption without mother's consent. The District Court, Cherokee County, Sandy Crosslin, J., determined child was eligible for adoption without mother's consent. Mother appealed.
*Holding: The Court of Civil Appeals, Deborah B. Barnes, J., held that:
1. mother was not prejudiced by prospective adoptive parents' failure to comply with the notice provisions of the Oklahoma Indian Child Welfare Act (OICWA);
2. the Indian Child Welfare Act's (ICWA) heightened burden of proof beyond a reasonable doubt did not apply to proceeding to determine whether Indian child could be adopted without mother's consent; and
3. The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) did not apply to interstate adoption jurisdiction dispute.
Affirmed as corrected.
*Synopsis: State filed petition to terminate the parental rights of mother and father to their purportedly Indian children. Father sought transfer of proceedings to Tribal Court. Prior to juvenile court's ruling on motion to transfer, the state withdrew its motion to terminate parental rights. The Separate Juvenile Court, Lancaster County, Reggie L. Ryder, J., found that good cause existed to deny request to transfer jurisdiction because the proceedings were in an advanced stage. Father appealed.
*Holdings:The Supreme Court, Wright, J. , held that:
1) because state did not meet its burden of establishing good cause to deny transfer of proceeding to tribal court, juvenile court abused its discretion in denying father's motion to transfer;
2) determination that the foster placement or termination of parental rights proceeding involving an Indian child is at an advanced stage is no longer a valid basis for finding good cause to deny a motion to transfer jurisdiction to a tribal court; and
3) Supreme Court would decline state's invitation to change its prior holding that the best interests of an Indian child may not be considered when determining whether good cause exists to deny transfer of a foster placement or termination of parental rights proceeding to a tribal court.
Reversed and remanded.
*Synopsis: Uncle appealed orders of the Superior Court, Mendocino County, Nos. SCUK–JVSQ–12–16629, SCUK–JVSQ–12–16630, SCUK–JVSQ–12–16631 & SCUK–JVSQ–12–16632, David Nelson, J., entered in child dependency proceeding conducted pursuant to the Indian Child Welfare Act (ICWA).
*Holdings: The Court of Appeal, Reardon, J., held that:
1) Designation of Indian Custodian was sufficient to establish maternal uncle as the custodian of the children under the ICWA;
2) Health and Human Services Agency and juvenile court were required to have inquired further with respect to the import of mother's designation of Indian custodian at the commencement of juvenile dependency proceedings;
3) mother's two conversations with social worker by telephone were sufficient to revoke designation of Indian custodian;
4) mother lacked authority to reinstate the custodial relationship after detention hearing and dispositional hearing;
5) uncle, as the minors' Indian custodian, was entitled to notice of child dependency proceedings;
6) error in failing to give uncle notice was harmless error, as there was no probability that minors would have remained placed with him; and
7) evidence was sufficient to support finding that good cause existed to forgo placement of children with uncle.
Affirmed.
*Synopsis: In adoption proceedings in which Indian tribes intervened, claiming the child at issue was an Indian child protected by the Indian Child Welfare Act (ICWA), the 7th Judicial District Court, Bonneville County, Ralph L. Savage, Magistrate Judge, determined that child was not an Indian child, granted adoption, and granted attorney fees against tribes. Tribes appealed.
*Holdings: The Supreme Court, W. Jones, J., held that:
1) any error in trial court's failure to find that child was an Indian child subject to the ICWA was harmless;
2) trial court abused its discretion by compelling discovery with respect to application by child's father for Indian tribe membership;
3) trial court abused its discretion by enjoining tribes from processing or filing any enrollment for tribal membership on behalf of child; and
4) trial court order granting attorney fees in favor of adoptive parents violated tribes' sovereign immunity.
Affirmed in part and reversed in part.
*Synopsis: State petitioned to adjudicate children as deprived due to neglect, lack of supervision and exposure to substance abuse. A Native American tribe moved for one child, whose father was at least previously a member of the tribe, to be transferred to an Indian Child Welfare Act (ICWA)-compliant placement. Following hearing, the District Court, Tulsa County, Wilma Palmer, Special Judge, ordered the transfer. State, biological parents, child, and foster mother appealed. The Court of Civil Appeals reversed. Tribe sought certiorari.
*Holding: The Supreme Court, Edmondson, J., held that:
1. clear-and-convincing standard applies to a decision to make an ICWA-non-compliant placement;
2. State had the burden of proof to show why child should not have been moved to an ICWA-compliant home;
3. it would take judicial notice that father's parental rights had not been terminated;
4. trial court was required by ICWA to deny tribe's motion for an ICWA-compliant placement;
5. tribe met its burden to show that the child was subject to ICWA; and
6. state did not meet its burden to show that father relinquished his membership in tribe, or that such relinquishment could alter the Indian status of the child.
Vacated and remanded.
In re England
314 Mich.App. 245
Docket No. 3272407
Court of Appeals of Michigan
January 28, 2016
*Synopsis: Father appealed as of right the trial court's, Timothy P. Connors, J., order terminating his parental rights to Indian child.
*Holdings: The Court of Appeals held that:
1) termination of father's parental rights was warranted;
2) Michigan Indian Family Preservation Act (MIFPA), providing that party seeking termination of parental rights to Indian child must demonstrate that active efforts have been made to provide remedial services and that the active efforts were unsuccessful, was not unconstitutionally vague; and
3) clear and convincing evidence showed that active efforts were made to provide remedial services and rehabilitative programs designed to prevent breakup of the Indian family, as required by MIFPA.
Affirmed.
*Synopsis: Mother's parental rights were terminated by the Circuit Court, Crawford County, Michael Medlock, J., and mother appealed.
*Holdings:The Court of Appeals, David M. Glover, J., held that mother failed to preserve for appellate review claim that Department of Human Services failed to present expert testimony in support of ground for termination of parental rights, under Indian Child Welfare Act (ICWA).
Affirmed.
*Synopsis: Engineering firm hired by Indian tribe in connection with capital improvement project at casino facility brought action against tribe for breach of contract when newly elected tribal council suspended project sanctioned by the former administration. The Fourteenth Judicial District Court, Parish of Calcasieu, No. 2006-2683, R. Richard Bryant, Jr., J., denied tribe's exceptions of lis pendens and lack of subject matter jurisdiction. Tribe filed writ application. The Court of Appeal, 965 So.2d 930, granted writ and ordered a stay to allow tribal court to decide whether tribe had waived its sovereign immunity. Granting certiorari, the Supreme Court, 992 So.2d 446, reversed and remanded. On remand, tribe answered and filed reconventional demand, asserting breach of contract, breach of fiduciary duties, fraud and failure to provide an accounting. The District Court, Clayton Davis, J., entered a number of judgments having the ultimate effect of awarding firm $10,998,250.00 in contractual damages, $5,585,573.00 in attorney fees, and $57,662.34 in court costs. Parties appealed.
*Holdings: The Court of Appeal, Peters, J., held that:
1) trial court improperly granted relief not prayed for when it found that tribe violated fiduciary duties it owed to firm;
2) firm failed to present sufficient evidence to demonstrate the absence of factual support for one or more elements essential to tribe's fraud and misrepresentation claims; and
3) fact questions precluded summary judgment in favor of firm on breach of contract claim.
Reversed and remanded.
*Synopsis: Office of Children's Services (OCS) filed a petition to terminate mother's parental rights to Indian children. The Superior Court, Third Judicial District, Palmer, Gregory Heath, J., granted petition, and mother appealed.
*Holdings:The Supreme Court, Maassen, J., held that:
1) superior court did not clearly err when it faulted mother for losing contact with OCS, and
2) superior court did not err in finding that OCS made active efforts toward reunification of mother with her children.
Affirmed.
*Synopsis: Children, Youth, and Families Department filed a petition alleging that children were abused and that the Indian Child Welfare Act (ICWA) applied. Following trial, the District Court, San Juan County, Sandra A. Price, D.J., granted Department's motion to terminate father's parental rights and determined that ICWA did not apply. Father appealed.
*Holding: The Court of Appeals, Vigil, C.J., held that:
1) children were not eligible for enrollment with the Navajo Nation;
2) Department complied with statutory requirement to investigate whether children were eligible for enrollment; and
3) there was clear and convincing evidence that the conditions and causes of neglect and abuse were unlikely to change.
Affirmed.
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