The Indian Child Welfare Act.

Few child welfare lawyers routinely confront the application of the Indian Child Welfare Act (ICWA or the Act ). When the statute applies, however, it is crucial that its provisions be strictly followed. There are at least three reasons why counsel should attempt to ensure that ICWA\u27s provisions are carefully applied. First, ICWA\u27s provisions are jurisdictional. Failure to abide by its requirements invalidates the proceeding from its inception. Indeed, any party or the court may invoke ICWA at any time in the proceeding, including for the first time on appeal. Second, unlike most federal child welfare legislation which provides funding streams to states and therefore may not be enforceable in trial level proceedings, ICWA is substantive law that provides minimum federal standards for addressing any case involving a child who qualifies as an Indian child. Finally, the failure to adhere to the law\u27s requirements can be disruptive for children, harmful to families, and undermining to tribal authority; it is also burdensome for courts and child welfare agencies. For instance, where the Act\u27s provisions were not properly followed, the United States Supreme Court invalidated an adoption some three years after the completion of the proceedings in the trial court and remanded the case for further proceedings. In addition to the statute itself, counsel should carefully consider the application of the Bureau of Indian Affairs, Guidelines for State Courts; Indian Child Custody Proceedings (BIA Guidelines), which, while they do not have binding effect, are entitled to great weight because they represent the construction of the statute by the administrative agency charged with implementing the Act\u27s provisions. Courts in a number of jurisdictions have affirmed ICWA\u27s constitutionality in the face of equal protection challenges. These courts have reasoned in part that the treatment of Indian people is unique not because they belong to a discrete racial group but because they are members of a quasi-sovereign tribe

Child Protection Law and Procedure

Child protective proceedings involving non-Indian children are primarily governed by the Child Protection Law (CPL), MCL 722.621 et seq.; the Juvenile Code, MCL 712A.1 et seq.; and subchapter 3.900 of the Michigan Court Rules. Taken together, these sources of authority establish a comprehensive scheme for reporting cases of suspected abuse and neglect, investigating those reports, and responding, when necessary, with appropriate legal action. For child protective proceedings concerning Indian children, see chapter 25. While these statutes form the primary authority for handling child protection proceedings, practitioners must be aware that federal law, specifically Title IV-E of the Social Security Act, 42 USC 670 et seq., and the policy established by the Michigan Department of Health and Human Services (DHHS) for handling child protection cases are increasingly influential in the courts’ handling of child protection cases

The Indian Child Welfare Act.

Few child welfare lawyers routinely confront the application of the Indian Child Welfare Act (ICWA or the Act ). When the statute applies, however, it is crucial that its provisions be strictly followed. There are at least three reasons why counsel should attempt to ensure that ICWA\u27s provisions are carefully applied. First, ICWA\u27s provisions are jurisdictional. Failure to abide by its requirements invalidates the proceeding from its inception. Indeed, any party or the court may invoke ICWA at any time in the proceeding, including for the first time on appeal. Second, unlike most federal child welfare legislation which provides funding streams to states and therefore may not be enforceable in trial level proceedings, ICWA is substantive law that provides minimum federal standards for addressing any case involving a child who qualifies as an Indian child. Finally, the failure to adhere to the law\u27s requirements can be disruptive for children, harmful to families, and undermining to tribal authority; it is also burdensome for courts and child welfare agencies. For instance, where the Act\u27s provisions were not properly followed, the United States Supreme Court invalidated an adoption some three years after the completion of the proceedings in the trial court and remanded the case for further proceedings. In addition to the statute itself, counsel should carefully consider the application of the Bureau of Indian Affairs, Guidelines for State Courts; Indian Child Custody Proceedings (BIA Guidelines), which, while they do not have binding effect, are entitled to great weight because they represent the construction of the statute by the administrative agency charged with implementing the Act\u27s provisions. Courts in a number of jurisdictions have affirmed ICWA\u27s constitutionality in the face of equal protection challenges. These courts have reasoned in part that the treatment of Indian people is unique not because they belong to a discrete racial group but because they are members of a quasi-sovereign tribe

Child Welfare Cases Involving Mental Illness: Reflections on the Role and Responsibilities of the Lawyer-Guardian Ad Litem

Child welfare cases involving mental illness suffered either by a child or his parent can be among the most difficult and perplexing that a child’s lawyerguardian ad litem (L-GAL) will handle. They may present daunting problems of accessing necessary and appropriate services as well as questions about whether and when such mental health problems can be resolved or how best to manage them. They also require the L-GAL to carefully consider crucially important questions—rarely with all the information one would like to have and too often with information that comes late in the case, is fragmented or glaringly incomplete. This brief article will begin with a discussion of the scope of the problem of parental mental illness and its impact upon children. It will then suggest the need for a particular type of evaluation in order to attain a more comprehensive understanding of the nature of the mental health issues involved, their impact on each party’s functioning, and how best to proceed with the provision of services. Next, it will address case planning by the L-GAL, doing so primarily through suggesting a series of questions that the L-GAL might ask herself about the parties to the case, others involved in the family’s life, and the community resources available to address the needs of the children and families with whom sheis working

Federal Child Welfare Legislation.

This chapter provides a brief overview of federal statutes that impact the practice of child welfare law. Since the enactment of the Child Abuse Prevention and Treatment Act in 1974 (CAPTA), the federal government has played an ever increasing role in handling child maltreatment cases

Prenatal Drug Exposure as Aggravated Circumstances

In Michigan, a child has a legal right to begin life with sound mind and body. Yet the family court may not assert Juvenile Code jurisdiction until after birth. In re Baby X addressed the question of whether a parent\u27s prenatal conduct may form the basis for jurisdiction upon birth. It held that a mother\u27s drug use during pregnancy is neglect, allowing the court to assert jurisdiction immediately upon the child\u27s birth. In deciding Baby X, the Court specifically reserved the question of whether parental drug use during pregnancy might be sufficient to permanently deprive a parent of custody. In the 40 years since that April 1980 decision, our knowledge regarding the impact of prenatal exposure to drugs and alcohol has grown dramatically and the law has evolved. These developments suggest prenatal exposure is an aggravating circumstance and should result in immediate termination of parental rights when a petition is filed, at least in some cases

The Impact of Traumatic Stress and Alcohol Exposure on Youth: Implications for Lawyers, Judges, and Courts

Since its inception in the late nineteenth century, the juvenile court has been concerned with the legal problems of children and their families. From the court’s earliest days, it has sought to address child abuse and neglect and juvenile delinquency as social problems that result from familial and community breakdown. Over the decades, researchers from various disciplines have provided varying explanations of how and why family systems break down, why some parents fail to nurture their children, why some physically or sexually abuse their children, and why some children become delinquent

Child Protection Law and Procedure

Child protective proceedings are governed by the Child Protection Law (CPL), MCL 722.621 et seq.; the Juvenile Code, MCL 712A.l et seq.; and Subchapter 3 .900 of the Michigan Court Rules. Taken together these sources of authority establish a comprehensive scheme for reporting cases of suspected abuse and neglect, investigating those reports, and responding with appropriate action

When Minors Face Major Consequences: What Attorneys Representing Children in Delinquency, Designation, and Waiver Proceedings Need to Know

In 1996, responding to the widely held misperception that juvenile delinquency was out of control, driven largely by the media’s disproportionate focus on youth violence, the Michigan legislature passed one of the country’s harshest packages of delinquency reform legislation (see sidebar). That legislation dramatically altered the way youth alleged to have violated the law are treated. Moreover, the legislature clearly intends that delinquency proceedings exist largely to punish children for their violations of the law. Both MCL 712A.2d(2)(e) (designation) and MCL 712A.4(4)(e) (waiver) make explicitly clear that one purpose of delinquency proceedings and the juvenile justice system is to punish rather than to rehabilitate. Many of the newer provisions are clearly oriented to punish rather than to address a youth’s best interests. Unfortunately, Michigan’s appellate courts have been slow to recognize this simple fact