An orphan is a vulnerable child left without adequate familial provision and protection from evil. There is real evil in the world – evil that will always seek to abuse, neglect, and rob vulnerable children. Orphan Law is that body of law that relates to addressing and alleviating the affliction of these vulnerable children.
This week, Alabama’s appellate courts released one new opinion that affects orphans and their families.
In J.N.T. v. Cullman County Department of Human Resources, 2140171 (May 1, 2015), a mother filed a timely appeal after Cullman County DHR entered a judgment for termination of parental rights (TPR) on November 19, 2014.
The major issue at hand in this case was the mother’s argument that DHR did not properly comply with the Indian Child Welfare Act (ICWA). The ICWA is currently undergoing some changes, which you can read more about in our April 3rd Orphan Law Update.
In 2007, while investigating the child’s maternal grandmother, DHR noted that the child’s maternal grandfather lived on an Indian Reservation. However, there are some “he said/she said” issues related to how and when the DHR workers assigned to this case were informed of the child’s Native American heritage.
After sending a notice to the relevant tribe regarding the upcoming TPR hearing, a DHR worker responsible for this case stated that she had not received a response from the tribe in time (by November 19th).
The juvenile court did determine that the child was an “Indian child” for the purposes of whether or not the ICWA standards needed to be applied.
The mother argued that the case should have been transferred to a tribal court, but the juvenile court rejected this argument since the child had never been domiciled nor resided on the reservation. The mother still could have filed a petition for transfer to the tribal court, but since no such petition has been filed, her argument did not hold up.
The next argument was what caused the Court of Civil Appeals (the Civs) to reverse and remand this case: the issue of standards for tribal notice required by the ICWA. Since the juvenile court conducted the TPR hearing less than 10 days after it sent notice to the tribe, and section 1912(a) dictates that no TPR proceeding “pertaining to an Indian child may be conducted until at least 10 days after an Indian tribe has received the notice required in that section,” the Civs determined that even if the type of notice was appropriate (as was disputed in more “he said/she said”-type arguments), the time frame for notice was inadequate.
The takeaway for orphan-care practitioners is that it is not sufficient to loosely comply with ICWA regulations—if the child falls under the purview of ICWA, its regulations must be strictly adhered to.
Photo by libertygrace0.