New court to connect Native American foster kids with family

BILLINGS – Bonnie Littlesun is raising eight children, all but one of whom are her grandkids, and she wouldn’t have it any other way.

“They’re crazy,” she said, laughing. It was midmorning and she had a brief break while her grandbaby slept and the others were at school. The kids range in age from 13 months to 18 years old.

Littlesun has legal guardianship of some of the kids and is caring for the others as a licensed foster care provider through the Northern Cheyenne tribe.

She speaks Cheyenne at home with the kids, even when they don’t understand it all, and they make regular trips to Lame Deer to visit extended family for birthdays and family dinners.

Officials involved in Montana’s foster care system lament the shortage of homes like Littlesun’s, where Native American kids who have been removed from their parents can still grow up with family and their cultural identity intact.

And they’re hoping a new specialty court in Yellowstone County will improve outcomes for all Native American kids experiencing abuse or neglect.

ICWA

In July, Montana’s 13th Judicial District began operating the nation’s fifth Indian Child Welfare Act court. It will handle all ICWA cases in Yellowstone County for Northern Cheyenne, Crow, Assiniboine and Sioux children, since those are the tribes with the highest number of cases in the district.

The new specialty court doesn’t have the resources to handle all of the county’s ICWA cases, so cases for members of other tribes will still be seen in regular district court proceedings.

In Yellowstone County last year, 43 percent of the 550 civil child abuse and neglect cases filed involved children who are tribal members or eligible for membership. Native Americans make up about 6.5 percent of the state population. The vast majority of these child welfare cases are neglect cases where parents are using meth.

Each week, state and tribal officials who have worked for more than a year to start the court convene for hearings. Those involved say poor communication and lack of relationships in the past stymied progress on the cases, but all that is changing.

Other ICWA courts are in Los Angeles, Denver, the north Denver metro area and Duluth, Minnesota.

Under ICWA, which Congress passed in 1978, officials who remove Native American kids from their homes must work to keep the kids as close to family as possible. The first preference for placement goes to the child’s family members. If none are able, officials then try other members of the child’s tribe, and next members of different tribes. After all of those options are exhausted, social workers then place the kid in a non-Native foster home.

At every stage in the process of an ICWA case – from the initial inquiry by social workers to the decisions judges make about removal – officials must meet a higher burden of proof that the child’s home is unsafe. That burden of proof is lower in child abuse and neglect cases for non-Native kids.

The law was passed in response to what Native American leaders saw as an alarming trend among their children: 25 to 35 percent were being removed from their homes due to concerns about abuse or neglect, and 85 percent of the placements that followed were in non-Native foster care settings, even when suitable family members were available.

Many feared they were losing the younger generation.

Edie Adams, who worked for the Bureau of Indian Affairs for decades and has lived on five Indian reservations, said that in the summers she often saw young adults come back to the reservations during powwows, looking for relatives.

“(They’d) say, ‘ think I’m from this tribe, I think my parents are from this tribe. I was adopted out,’ ” Adams said. She’d ask around, trying to “find out who they belonged to.”

History of noncompliance

Although the law has been in place for nearly 40 years, many say state officials were slow to comply.

“There were courts out there that had no clue – still don’t have a clue – what ICWA’s about,” said Crow Chief Judge Leroy Not Afraid.

Not Afraid said that in the past, state courts in Montana, Wyoming and other states did not properly notify the tribe when removing Crow kids from their homes, leaving it no chance to intervene.

“We would lose the Crow child in the system,” he said.

Noncompliance with ICWA is still widespread but difficult to address, said David Simmons, of the National Indian Child Welfare Association. That’s because unlike other federal child welfare laws, ICWA does not require regular data collection or reviews, making it hard to pinpoint problem areas.

In one Oregon county, for example, Simmons found that social workers were routinely recording Native American kids as racially “unknown,” and not working to determine whether they were members of one of several nearby tribes. Identifying kids as Native American is the first step in applying ICWA.

That was roughly 20 years ago, and Simmons stressed that many states, not just Oregon, have failed to comply with ICWA.

Social workers

Social workers are the first point of contact on abuse and neglect cases. They’re responsible for notifying the state when they’re concerned about kids’ safety.

And their job isn’t easy.

“You have parents who will try and take their kids and run,” said Heather Eleazer, Child and Family Services Division supervisor for the Billings area. “We have parents who get very angry and violent. Social workers are threatened a lot.”

Once a dad picked up a grill and tried to throw it at the social worker.

“It’s emotional every day,” Eleazer said. “It’s draining. I think workers get a bad reputation that they don’t care, that they just go out and remove kids whenever they want. And that’s not the case – they don’t want to remove kids.”

Because the number of foster homes run by Crow, Northern Cheyenne or other Native Americans is so limited, it makes social workers’ jobs harder when trying to place kids according to the law.

Eleazer said social workers must carefully document all the circumstances that warrant concern, such as evidence of illegal drugs, unsanitary conditions or unexplained injuries to children.

“And even when all of that is true, it’s just heart-wrenching to have to take children from their parents,” she said.

A turning point

State, county and tribal officials involved in the new court say it marks a turning point that promises better relationships between the state and the tribes and better outcomes for children.

The team of attorneys, social workers, ICWA specialists and others working on the new court have designated primary contacts to speed up communications.

“There’s no lag time,” said Fort Peck Chief Judge Stacie Smith. “There’s no question of, `Are we contacting the correct people or not?“’

Judge Rod Souza, who presides over the new court in Billings, agrees.

“It’s a lot easier to work with someone and come up with effective, collaborative solutions on a problem if you know the person you’re working with,” he said, “if it’s not just a number in a phone book. If it’s not just an email.”

The group has set up cultural competency trainings for social workers and regular meetings between state and tribal officials – a practice that social workers in Miles City say they’ve taken up. A new form that better documents efforts to place children with family members has been shared around the state. And those involved with the court are hoping to partner with area nonprofits or law firms to expand their work.

Those involved say they feel a new spirit of teamwork since the court has started up.

“The No. 1 goal is always reunification with parents, if that can be done in a safe way,” said Brooke Baracker-Taylor, a Montana assistant attorney general.

But when that can’t be done, “the state has an obligation to make sure that those kiddos are connected to their extended family, their tribe and their culture.”