Bar Counsel’s Office is in need of new fee arbitration panelists. The Idaho State Bar’s Fee Arbitration Panels review matters submitted to fee arbitration by clients disputing fees charged by their lawyer. Panels are held in various districts and are formed as needed. If the filed dispute is for $2,500 or less, it is assigned to a one lawyer panel; if the filed dispute is for more than $2,500, it is assigned to a three-member panel including one non-lawyer.
If you are interested in volunteering as a fee arbitration panelist, please contact Melody Smart.
The Judges of the United States District and Bankruptcy Courts for the District of Idaho intend to appoint a Lawyer Representative to serve on the Ninth Circuit Conference for a three-year term to replace Robert Faucher. For more information and to apply, please read the full memo linked below:
IDAHO ACADEMY OF LEADERSHIP FOR LAWYERS APPLICATIONS NOW AVAILABLE – Due August 10!
The Idaho Academy of Leadership for Lawyers (IALL) is now accepting applications for the Class of 2020-2021.
IALL is a highly selective and well-regarded leadership training program for lawyers from Idaho. It brings together some of the best and brightest attorneys in Idaho and teaches them leadership skills that they can use to improve the legal profession and transform their communities.
The mission of IALL is to promote diversity and inspire the development of leadership within the legal profession. IALL will bring together lawyers from different practice areas with a variety of backgrounds from all across Idaho. IALL will build upon the participant’s leadership skills and promote leadership experience by:
- Teaching accepted and recognized leadership skills and philosophies;
- Fostering professional relationships within the Idaho legal community and the greater community;
- Promoting professional obligations and community service; and
- Raising awareness among lawyers of the broad range of issues and challenges facing leaders today.
For more information, please visit the IALL Webpage, here: Idaho Academy of Leadership for Lawyers
APPLY NOW BY CLICKING HERE: 2020-2021 IALL APPLICATION
You may submit your application via email to Teresa Baker at firstname.lastname@example.org.
Access to Justice Idaho raises funds to support Idaho Legal Aid Services (ILAS), the Idaho Volunteer Lawyers Program (IVLP) and DisAbility Rights Idaho (DRI) — the three principle providers of civil legal services for poor and vulnerable Idahoans. The need for free legal services is constant and increasing. This year, the COVID-19 pandemic has left one in seven Idaho workers unemployed. Many who were seemingly secure, now face evictions, foreclosures, crippling medical bills without health insurance and a myriad of unexpected legal problems. This year, more than ever, the low-income beneficiaries of Access to Justice need your help.
Learn more and donate by clicking HERE.
Concordia University School of Law will close permanently at the end of the summer term as part of the closure of Concordia University-Portland. Although the University had signed a letter of intent in February to transfer the School of Law to Concordia St. Paul, the parties were unable to consummate the transaction.
You can read the full press release HERE.
For information about the Code Sections affected by the 2020 Legislative Session, click the link below. Code citation, action, bill number, and session law chapter numbers are shown for bills passed during the 2020 Legislative Session.
By Lori Fleming
The following is a list of rule amendments approved by the Idaho Supreme Court between May 1, 2019, and May 5, 2020. The orders amending these rules can be found on the Idaho Supreme Court website at http://www.isc.idaho.gov/recent-amendments. Be sure to check the Idaho State Bar E-bulletin for your chance to comment on proposed amendments before adoption. Unless otherwise indicated, all amendments and new rules are effective July 1, 2020.
Idaho Appellate Rules
The Idaho Appellate Rules Advisory Committee is chaired by Chief Justice Roger Burdick.
Rule 23. Filing Fees and Clerk’s Certificate of Appeal – Waiver of Appellate Filing Fee. Idaho Appellate Rule 23 sets forth the filing fees the Clerk of the Supreme Court is required to charge for appeals and petitions. Consistent with the language of I.C. § 72-1375, the rule was amended to provide that individual claimants under the employment security law are exempt from paying any filing fees. The amendment took effect June 26, 2019.
Idaho Court Administrative Rules
The Idaho Court Administrative Rule 32 Advisory Committee is chaired by Chief Justice Roger Burdick.
Rule 32. Records of The Judicial Department – Examination and Copying – Exemption From and Limitations on Disclosure. Subsection (g) of Idaho Criminal Rule 32 lists a number of court records that are exempt from disclosure and currently provides that any willful or intentional disclosure of such records may be treated as contempt of court. The rule has been amended to also make the willful or intentional “accessing” of sealed or exempt court records subject to contempt. In addition, subsection (j)(6) of the rule, governing the cost of copying records, has been amended to provide that the cost to make a paper copy of any record filed in a case with the clerk of the district court “shall be determined by the clerk, and shall not exceed the amount specified in I.C. § 31-3201.”
Rules 37 and 38. Minimum Standards for Preservation, Destruction, or Disposition of Trial Court Records. Idaho Court Administrative Rules 37 and 38 have been amended to provide that the digital entry of court records into the court’s automated case management system (i.e., the scanning of court records into Odyssey) is sufficient to meet the preservation requirements of the rules. As amended, the rules clarify that, once a document has been digitally entered into Odyssey, it becomes part of the permanent court record and the paper copy may be disposed of unless specifically prohibited by rule. Rules 37 and 38 have also been amended to prohibit the destruction of any record that is required to be filed conventionally pursuant to Idaho Rules for Electronic Filing and Service 5(a), 5(c), 5(f), or 5(k). Examples of such records include original wills, demonstrative or oversized exhibits, sexually explicit images of a minor, and any other document or thing that cannot be scanned or otherwise converted to a digital format.
The following amendments to the Idaho Court Administrative Rules resulted from the work of the Guardianship and Conservatorship Committee, which is chaired by Judge Christopher Bieter.
Rule 54. Guardianships and Conservatorships. The rule was amended to require individuals seeking appointment as a guardian or conservator of a minor child to complete the Idaho Supreme Court’s online training course for guardians and conservators.
Rule 54.4. Visitor Reports. Subsection (d) of the rule was amended to require visitors in guardianship or conservatorship cases to complete and attach to their visitor reports a differentiated case management tool with monitoring recommendations. The differentiated case management tool is an assessment tool that is designed to identify those guardianship and conservatorship cases in which increased monitoring and allocation of resources may be required. The tool itself is a questionnaire that evaluates the applicability of certain risk factors to the specific case. Based upon the responses, the case is assigned to either a low, medium, or high monitoring track.
Rule 54.5. Idaho Department of Health and Welfare Evaluation Committee Reports. Consistent with the amendment to Rule 54.4 for visitor reports, subsection (c) of Idaho Court Administrative Rule 54.5 was amended to require the Idaho Department of Health and Welfare Evaluation Committee in guardianship or conservatorship cases to complete and attach to its committee reports a differentiated case management tool with monitoring recommendations.
Rule 54.6. Professional Guardian and Conservator Certification. As the population of Idaho grows, the need for professional guardians and conservators is expected to grow with it. Currently, persons who provide guardianship or conservatorship services for a fee are not required to have a professional license, show completion of any relevant education beyond the Idaho Supreme Court’s basic online training course, follow standard ethical guidelines, or otherwise prove they are competent to provide needed services to some of Idaho’s most vulnerable citizens. Consistent with I.C. § 31-3201G(3), which recognizes the importance of the adoption of standards of practice for guardians, the new Idaho Court Administrative Rule 54.6 provides a mechanism to ensure that professional guardians and conservators meet minimum standards of competency by requiring that they be certified by the Center for Guardianship Certification unless certification is waived by the court for good cause. While the rule only makes certification mandatory for professional guardians or conservators, as defined in subsection (a), subsection (d) provides that the court can for good cause require any guardian or conservator to be certified.
Idaho Criminal Rules
The Idaho Criminal Rules Advisory Committee is chaired by Justice Richard Bevan.
Rule 4. Arrest Warrant; Summons: Determination of Probable Cause. Idaho Criminal Rule 4 was amended to provide a process for the application and issuance of arrest warrants by telephone or other electronic means. The amendments to the rule were modeled after Idaho Criminal Rule 41, relating to the issuance and execution of search warrants. The new subsections (a)(1) through (a)(3) of Idaho Criminal Rule 4 require that the finding of probable cause supporting an arrest warrant be based on substantial evidence and that the warrant application be provided in the form of an affidavit or sworn oral statement. New subsection (a)(4) authorizes the magistrate to issue a warrant based on information communicated by telephone or other electronic means, provided that the affidavit or sworn oral statement supporting the issuance of such warrant must be filed with the clerk of the court and transcribed by the court upon request. Subsection (d)(1) was amended to permit the use of an electronic signature and to allow a law enforcement officer to sign a magistrate’s name to the warrant upon receiving verbal authorization from the magistrate to do so. The rule further provides that, following service of the warrant, the warrant must be returned to the magistrate, who must then endorse his or her name on it and enter the date it was returned to the magistrate, although the failure of the magistrate to do so does not in itself invalidate the warrant. Finally, subsection (d)(2) was amended to allow for the presentation and transmission of an arrest warrant by email, facsimile, or other electronic process. The amendments took effect August 23, 2019.
Rule 5. Initial Appearance Before Magistrate; Determination of Probable Cause; Advice to Defendant; Plea in Misdemeanors; Initial Appearance on Grand Jury Indictment. The Idaho Supreme Court has adopted two separate mandatory Notification of Rights forms, one for use in felony cases, and one for use in misdemeanor cases. Subsection (e) of Idaho Criminal Rule 5 was amended to clarify that, when a defendant is charged with both a felony and a misdemeanor, only the “Notification of Rights – Felony” form found in Appendix A of the Idaho Criminal Rules must be signed by the defendant and submitted to the magistrate at the initial appearance. The amendment took effect August 1, 2019.
Rule 5.1. Preliminary Hearing; Probable Cause Finding; Discharge or Commitment of Defendant; Procedure. Idaho Criminal Rule 5.1(a) sets forth the procedure that must be followed when a defendant charged by complaint with any felony waives his or her right to a preliminary hearing. The rule was amended to require that, if a waiver a preliminary hearing form is used, it must be the Supreme Court “Waiver of Preliminary Hearing” form contained in Appendix A of the Idaho Criminal Rules. The amendment took effect August 1, 2019.
Rule 25. Disqualification of Judge. Subsection (a) of Idaho Criminal Rule 25 was amended to clarify that the right to disqualification of a judge without cause applies only in felony and misdemeanor criminal actions. The intent of the amendment was to make clear that there is no right to disqualification without cause in infraction proceedings. The amendment took effect April 21, 2020.
Rule 28. Determination of Good Cause Regarding Statutory Trial Time Requirements. The Court adopted this new rule in response to the state of emergency declared as a result of the COVID-19 pandemic. The rule sets forth a list of factors a trial court must consider in determining whether good cause exists to continue a criminal trial beyond the time requirements set forth in Idaho Code § 19-3501. Among the factors the court must consider are whether the delay beyond the statutory speedy trial deadline is necessary to safeguard the health or safety of the parties, jurors, attorneys, witnesses, court staff, or the public, and whether the delay was necessitated by the declaration of an emergency by the President of the United States or the Governor of the State of Idaho. The new rule took effect March 18, 2020.
Rule 32. Presentence Investigations and Reports. Idaho Criminal Rule 32 provides that, once prepared, any presentence report may be released to any district judge for that judge’s use in sentencing. While it is clear under the rule that a sentencing court may consider a presentence report prepared for a different case, the rule does not currently require that the parties be notified of the court’s intent to do so. To ensure that the parties receive such notice, subsection (g)(1) of Rule 32 has been amended to provide that full disclosure of the contents of “any presentence report considered by any sentencing court” must be made to the defendant, defendant’s counsel, and the prosecuting attorney. Subsection (h)(1) of the rule has also been amended to require that all presentence reports be filed and kept as sealed court records, the disclosure of which is prohibited except as expressly allowed by rule or by a court order entered pursuant to Idaho Court Administrative Rule 32(i). Finally, consistent with the requirement of Idaho Criminal Rule 32 that presentence reports be sealed by court order after use in the sentencing procedure, the Idaho Supreme Court has entered an administrative order requiring the Administrative Office of the Courts to identify and seal all unsealed presentence reports in cases in which sentencing has occurred. The administrative order was effective May 4, 2020.
New and Revised Appendix A Forms. The Court adopted a mandatory “Warrant of Arrest (Felony)” form and a mandatory “Warrant of Arrest (Misdemeanor)” form, both of which are contained in Appendix A to the Idaho Criminal Rules. In addition, the Court made a technical revision to the Certificate of Service on the mandatory “Waiver of Preliminary Hearing” form, contained in Appendix A, to reflect that service of the form may be made by someone other than the Clerk of the Court.
Idaho Infraction Rules
The Idaho Misdemeanor/Infraction Rules Advisory Committee is chaired by Judge Michael Oths.
Rule 9. Judgment – Fixed Penalty Plus Court Costs for Infractions – Withheld Judgment and Suspended Penalties Prohibited – Deferred Payment Agreements. The Infraction Penalty Schedule embedded in Idaho Infraction Rule 9 has been amended to correct some costs/fees inaccuracies, to remove what was formerly the infraction “Texting While Driving,” and to add the new infraction “Operation of Motor Vehicle While Operating Mobile Device.” Formatting changes have also been made in the interest of consistency and to facilitate the ease of maintaining an accurate schedule.
Idaho Juvenile Rules
The Juvenile Justice Advisory Committee is chaired by Judge Mark Ingram.
Rule 10. Change of Venue; Temporary Transfer of Supervision. The rule has been amended to set out the process for “temporary transfers of supervision” (aka “courtesy supervision”) in juvenile probation cases. The new subsection (b), which is modeled after the process for transferring supervision in adult misdemeanor cases, requires the sending county’s probation department to contact and forward its file and other relevant information to the receiving probation department within 7 days. The rule also clarifies that a temporary transfer of supervision is not a change of venue and shall not result in the opening of a court case in the receiving county.
Rule 17. Sentencing Hearing. Many magistrate courts order and authorize, as a condition of probation, the use of discretionary detention time in juvenile cases. There was, however, no rule setting out the procedure. This amendment to Idaho Juvenile Rule 17 adding subsection (f) defines “discretionary detention time” and sets forth procedures that must be followed. The new rule language states that the discretionary detention time cannot be applied to status offenders. The sanction is permitted upon a finding of reasonable cause to believe the juvenile violated any term or condition of probation and written order of the court. The amendment is modeled after Idaho Criminal Rule 33(e) and limits the amount of discretionary time a juvenile may serve to no more than 3 days and requires that the juvenile be given credit for any time served against the total detention time ordered in the judgment.
Rule 18. Violation of Formal Probation; Violation of Informal Adjustment. Idaho Juvenile Rule 18 was amended to clarify a court’s options following a violation of formal probation or informal adjustment. As amended, the rule states that, upon finding a violation, the court may enter an order imposing any suspended term of detention or suspended commitment but must comply with the standards and procedures for commitment “pursuant to Idaho Juvenile Rule 19.” It also clarifies that, in the case of an informal adjustment, the court may impose any sentence available to it “pursuant to the Idaho Juvenile Corrections Act.”
Idaho Misdemeanor Criminal Rules
The Idaho Misdemeanor/Infraction Rules Advisory Committee is chaired by Judge Michael Oths.
Rule 6. First Appearance of Defendant – Plea of Defendant – Trial Date Notice or Continuance Notice. Idaho Misdemeanor Criminal Rule 6(c) requires a defendant appearing for the first time before the court on a uniform citation or sworn complaint to sign and submit a form entitled “Notification of Rights – Misdemeanor.” The rule was amended to clarify that, when a defendant is charged with both a felony and a misdemeanor, only the “Notification of Rights – Felony” form found in Appendix A of the Idaho Criminal Rules must be submitted. The amendment took effect August 1, 2019.
Idaho Rules of Civil Procedure
The Idaho Civil Rules Advisory Committee is chaired by Justice Robyn Brody.
Rule 69.1/Appendix B. Garnishment Forms. The Court amended the Rule 69.1(a) “Notice of Exemptions” form and the Rule 69.1(c) “Claim of Exemptions or Third Party Claim” form to reflect statutory increases to the dollar values of certain exemptions. The revised forms were effective March 23, 2020, and are available on the Idaho Supreme Court website.
Idaho Rules of Evidence
The Evidence Rules Advisory Committee is chaired by Judge Molly Huskey.
Rule 101. Title and Scope. Subsection (e) of this rule was amended to clarify that extradition or rendition proceedings are among the criminal proceedings to which the Idaho Rules of Evidence do not apply. The amendment took effect May 28, 2019.
Rule 805. Hearsay within Hearsay. The rule was amended to state that hearsay within hearsay is not excluded under the hearsay rule “if each part of the combined statements conforms with an exception to the hearsay rule provided in these rules.” The amendment took effect May 28, 2019.
Lori Fleming received her Juris Doctorate from the University of Idaho College of Law in 1998. After law school, she completed a two-year clerkship for United States Magistrate Judge Mikel H. Williams. Following her clerkship, she worked for almost 20 years as a Deputy Attorney General in the Appellate Unit of the Criminal Law Division of the Idaho Attorney General’s Office. She has been the Staff Attorney for the Idaho Supreme Court since September 2019.
By Johnathan R. Baldauf
The Indian Child Welfare Act (“ICWA”) is a federal law enacted in 1978 that sets standards designed to “protect the best interests of Indian children and to promote the stability of Indian tribes and families.”[i] The ICWA generally applies to Indian children who may be removed from the custody of their parents. The law protects children who are eligible for membership in federally-recognized tribes and ensure that tribes have priority in placement and is “addressed to the concern that ‘an alarmingly high percentage of such children are placed in non-Indian foster and adoptive homes and institutions.’”[ii] The heightened requirements of the ICWA are designed to maintain the culture of the tribe.
Because the ICWA does not apply to custody disputes between parents or family members, many family law practitioners are not familiar with the law. However, any practitioner dealing with adoption, guardianships, or the termination of parental rights should ensure that they have reviewed their case to determine if the ICWA might apply. While the ICWA only applies to involuntary proceedings, ensuring its requirements are met in voluntary proceedings can make a clear record and can address the concerns the ICWA was designed to address. This article will help practitioners understand the ICWA, when it applies and provide some practical advice on how to navigate it.
Application of ICWA
The ICWA applies when 1) a child who is a member of an Indian tribe or is eligible for membership in an Indian tribe and is the biological child of a member of a tribe is 2) involved in a child custody proceeding, as defined by 25 U.S.C. § 1903(1). Tribes have the final say in determining who is eligible for membership. The statute limits “child custody proceedings” to foster care placement, termination of parental rights, pre-adoptive placement (temporary placement in a foster home), and adoptive placement. The statute specifically excludes non-status juvenile offenses and divorce proceedings.
Requirements When ICWA Applies
When the ICWA applies, “active efforts” must be taken to prevent the breakup of the Indian family. These active efforts include: notice must be given to the parents and tribe (or tribes), the tribe must be allowed to intervene, consideration of the social and cultural standards of the parents and tribe must be taken into consideration when placing a child, and additional findings are necessary if rights are to be terminated.
The court must be satisfied that active efforts have been made to prevent the breakup of the Indian family. Active efforts are affirmative, active, thorough, and timely efforts intended primarily to maintain or reunite an Indian child with his or her family. The Bureau of Indian Affairs provides several examples, including conducting a comprehensive assessment of the circumstances of the Indian child’s family, with a focus on safe reunification as the most desirable goal; taking steps to keep siblings together where possible; and identifying community resources.[iii] Active efforts must be documented in detail and, to the extent possible, should involve and use the available resources of the extended family, the child’s Indian tribe, Indian social service agencies and individual Indian care givers.[iv] “The term active efforts, by definition, implies heightened responsibility compared to passive efforts.”[v] “[A]s opposed to passive efforts such as simply developing a plan for the parent to follow, active efforts require that the state actually help the parent develop the skills required to keep custody of the children.”[vi] Referrals are not enough; the petitioners must actively engage the family.
Notice and The Opportunity to Intervene Are Required.
Notice must be given to the child’s tribe, parent, and (if applicable) the child’s custodian. Generally, notice is given to the tribe itself, although if the identity or location of the tribe cannot be determined, notice can be given to the Secretary of the Interior, who is then required to give notice to the tribe. No hearings can be held until at least 10 days after the receipt of notice.
ICWA allows the child’s tribe to intervene “at any point in the proceeding.”[vii]
Jurisdiction is Concurrent.
In Idaho, the State has concurrent jurisdiction with the Tribes over parental termination proceedings. While ICWA includes language giving a Tribe “jurisdiction exclusive as to any State over any child custody proceeding involving an Indian child who resides or is domiciled within the reservation of such tribe. . .” an exception exists to allow states to maintain jurisdiction “where such jurisdiction is otherwise vested in the State by existing Federal Law.”[viii] The passage in 1953 of federal Public Law 280 allowed for states to “assume jurisdiction over reservation Indians” and opened the door for the state to exert jurisdiction over those issues.[ix] Idaho stepped through that door in 1963 with the passage of Idaho Code § 67-5101, directly assuming and accepting jurisdiction for dependent, neglected, and abused children.[x]
Preference is Required.
For adoptive placement, ICWA requires preference to be given, in the absence of good cause otherwise, to placement with a member of the child’s extended family, other members of the child’s tribe, or other Indian families. For pre-adoptive or foster care placement, preference is given to members of a child’s extended family, foster homes licensed or approved by the tribe, Indian foster homes licensed or authorized by a non-Indian licensing authority; or 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. If the child’s tribe establishes a different order of preference, the agency or court placing the child “shall follow” that preference, so long as the placement is the least-restrictive setting appropriate to the particular needs of the child.[xi] Where appropriate, the preference of the child and parent are also considered.
Additional findings are required in ICWA cases when placing a child in foster care or terminating parental rights. Before placing a child in foster care, a court must make a determination, supported by clear and convincing evidence including the testimony of qualified expert witnesses, that the continued custody of the child by the parent or custodian is likely to result in emotional or physical damage to the child.
No termination of parental rights may be ordered without a determination, supported by evidence beyond a reasonable doubt including testimony of qualified expert witnesses, that the continued custody of the child by the parent or custodian is likely to result in serious emotional or physical damage to the child. A finding of serious emotional or physical damage must be made in addition to the requirements of Idaho Code §§ 16-2005 and -2009 that the grounds for termination have been met based upon clear and convincing evidence.
The failure to meet the requirements of ICWA can have severe repercussions for a petitioner’s case. If the requirements of ICWA are not met and a child is found to have been improperly removed, 25 U.S.C. § 1920 requires courts to decline jurisdiction and return the child to his parent or Indian custody unless returning the child would subject the child to a substantial and immediate danger or threat of such danger.
Example of ICWA in Practice in Idaho
Recently, ICWA has been a hot topic in Idaho courts. The Idaho Supreme Court heard two cases involving ICWA in 2015 and another in 2016. Idaho Dep’t of Health & Welfare v. Doe, one of the 2015 cases, can serve as an example of how ICWA can apply in a child protection case. In that case, a mother appealed from an order terminating her parental rights.[xii]
TSD, Doe’s son, was removed from Doe’s custody in 2012. An officer responded to a call reporting an unattended toddler. When the officer arrived, he recognized the toddler as two-year-old TSD. He made contact with Doe, who, along with three minors, was intoxicated. Doe expressed concern that she had a problem with alcohol and said she needed treatment. The officer took TSD into custody pursuant to the Child Protective Act.
TSD was placed in the care of Doe’s aunt, an extended family member. At the next hearing, the court granted legal custody to the Idaho Department of Health and Welfare (“DHW”) and determined that TSD was an Indian child. Because of TSD’s status as an Indian child, ICWA applied.
DHW submitted an extensive case plan with the goal of reunifying TSD with his parents. The plan was endorsed by the court. The plan called for Do to complete substance abuse treatment, a mental health evaluation, and parenting classes. Doe was also to abide by the terms of her probation, attend TSD’s medical and therapy appointments, and attend regular visits with TSD.
After a four-day trial where the court heard testimony from fifteen witnesses, the magistrate court granted the State’s petition to terminate Doe’s parental rights. Doe did not appear at any part of the trial. The court found by clear and convincing evidence that TSD’s parents neglected and abandoned him and that his best interests would be served by terminating their parental rights. Because ICWA applied, the court made additional findings that DHW made “active efforts” to prevent the breakup of the family and found, by evidence beyond a reasonable doubt, that continued custody of TSD by DOE would likely result in serious emotional or physical harm to him.
Doe appealed, claiming that first, she had requested additional treatment and was told none was available and second, that the foster mother interfered by objecting to providing Doe with contact information for a child care facility.
The Idaho Supreme Court found that DHW provided appropriate active efforts. DHW arranged for weekly supervised visits with TSD, but Doe stopped participating the visits, making 23 of the 77 visits. TSD was enrolled in individual counseling specifically designed to strengthen his relationship with his parents and Doe was encouraged to attend, but she only attended 3 of the 80 appointments. TSD was scheduled for regular medical and therapeutic appointments to understand and address his developmental delays, but Doe only attended 5 of the 64 speech therapy appointments.
DHW arranged for parenting classes for Doe to take, but she dropped out and did not return. Finally, DHW arranged for Doe to participate in multiple drug and alcohol treatment programs, Doe completed one and dropped out of another and resumed her regular abuse of alcohol. Doe had almost no contact with DHW for the eleven months leading up to the trial to terminate her rights.
In affirming the termination, the Idaho Supreme Court noted that even if DHW failed in the ways Doe claimed, “one or two failures on the part of DHW do not entail wholesale failure with respect to the active efforts requirement.” The case fell under the auspices of ICWA, DHW made consistent efforts to involve the family in efforts to avoid breaking up the family, and additional findings were made to satisfy the requirements of ICWA.[xiii]
As this article demonstrates, when handling a situation where parental rights may be terminated, it’s recommended that you determine if any of the children or their parents are members of a tribe. This threshold determination may require additional research including direct contact with a tribe to determine if a potentially eligible person is a member. If your case involves a tribal member, the ICWA has specific requirements that must be met. Hopefully, this article will provide you with a way path under the ICWA.
Johnathan R. Baldauf is a founding partner of Baldauf Masser, LLP, a small Boise-based firm focused on family law and criminal defense. When not handling those issues, he enjoys hanging out with his girlfriend, Shannon, and dog, Echo (a German Shepherd), game nights, trivia, and going to the gym.
[i] 25 U.S.C. 1901, et al.
[ii] IDHW v. Doe, 157 Idaho 920, 923, 342 P.3d 632, 635 (2015).
[iii] 25 CFR § 23.
[iv] 44 FR 67584.
[v] In re A.N., 325 Mont. 379, 384, 106 P.3d 556, 560 (2005).
[vi] Idaho Dep’t of Health & Welfare v. Doe, 152 Idaho 797, 805, 275 P.3d 23, 31 (Ct. App. 2012) (quoting Dashiell R. v. State, Dep’t of Health & Soc. Servs., Office of Children’s Servs., 222 P.3d 841, 849 (Alaska 2009)).
[vii] 25 U.S.C. § 1911.
[viii] 25 U.S.C. 1911(a).
[ix] Pub. L. 83-280.
[x] See Doe v. Doe, 158 Idaho 614, 620, 349 P.3d 1205, 1211 (2015).
[xi] 25 U.S.C. 1915(c).
[xii] 157 Idaho 920, 921, 342 P.3d 632, 633 (2015).
[xiii] 157 Idaho 920, 926, 342 P.3d 632, 637-8 (2015).
By Kelsey J. Nunez
The desire to write this article came to me while I was watching a TV show. One of the characters was a super rich, super popular high school bully. He was so mean, exhibiting piercing cruelty and callousness. It was easy to despise him. But as his character developed, we started to get glimpses into his home life. A father who was always belittling him, a distant mom who was drunk a lot.
Then all of a sudden the scene that made me cry with empathy hit – his dad takes him into a room with a belt, and as the door closes, the camera pans to his mom who finishes her martini while she listens to the sounds of his pain in the other room. This well-connected and admired family had a horrible secret, and the impacts of their physical and emotional abuse was spreading to the son’s victims at school.
As practitioners in the child protection space, we know about the consequences to society when abused children do not get the help they need to heal their traumas, break the cycle of violence, and avoid becoming abusers themselves. I became curious about the impacts of stereotypes and privilege and the common perception that child abuse and neglect is a poor-people issue. That is clearly not true – child abuse occurs in all socioeconomic classes. But does society treat wealthy abusers and their victims differently?
In sum, the answer is yes. While child protection statutes on their face apply to all children equally, affluent abusers tend to be better equipped at keeping the abuse private and navigating the medical and legal system to shield themselves from the consequences.
Child abuse and neglect may be underreported in affluent communities
Many authors have explored why poverty conditions can lead to child abuse and neglect. It makes logical sense that a parent predisposed to harming their children may struggle even more under the pressures of income insecurity and lack of child care, adequate housing, and food. While poverty-based suffering is real and deeply problematic, the child protection system has been criticized for missing child abuse in affluent communities while demonstrating over-interventions and biases against poor parents.[i] There are many nuances to using child protection statutes to alleviate harms associated with poverty. But this article doesn’t go there – it focuses on children at the opposite end of the spectrum.
Abuse and neglect happen in families with enough to eat, a nice home, and plenty of economic resources, but it is often addressed differently by community members, mandatory reporters, law enforcement, and the courts. This issue was flagged in the oft-cited 1981 National Study on the Incidence and Severity of Child Abuse and Neglect, which showed higher levels of abuse in lower income families, noting “the income distribution of children reported to CPS is markedly different than the general population distribution,” and acknowledged that some advocates think this may be due in part to underreporting of higher income families.[ii]
I’m not aware of any modern data on child abuse and household income that shows a proportionate distribution of CPS cases among income levels, or any studies or reports that prove or disprove underreporting. Because the data is what it is, the conversation is mostly conceptual and exploratory. While it’s possible that poor people abuse and neglect their children more than wealthy people do, it is also possible that there may be “skewed perception, detection, and enforcement”[iii]of abuse and neglect in affluent communities. If our goal is to protect more children, then we should seek to understand any inherent biases in the child protection system and how we individually operate within it.
To that end, what follows is a summary of the two main theories of why child abuse in affluent families may be underreported: affluent families have more privacy and affluent abusers have more power to fight government interventions.
The goal here is not to criticize hard-working child protection advocates doing their best, but instead to shine light on systemic biases so we can all be more aware and effective in implementing the Child Protection Act to benefit all socioeconomic classes of children.
Affluent families have more privacy
Families who receive subsidized assistance, such as food stamps, temporary assistance to needy families, Section 8 housing, and Medicaid, tend to be observed and scrutinized by more people affiliated with the state. They are also more likely to be subject to drug and alcohol abuse evaluations in exchange for receiving such assistance. As such, evidence of abuse or neglect is more likely to be perceived by someone unconnected to the family and more willing to report them.
Wealthier families, on the other hand, are better able to keep the goings-on of their homelife to themselves and a small circle of private doctors, schools, and support staff. While doctors, teachers, and counselors are mandatory reporters, there is a risk that they could be compelled to protect the privacy of, or seek alternatives to criminal justice for, a wealthy abuser that pays them well or exerts social influence over them. Less nefarious is the unconscious bias associated with giving “clean, well-to-do” people the benefit of the doubt in suspicious circumstances.
Affluent abusers have more power to fight government interventions
For a variety of reasons, law enforcement can be more intimidating for people who do not have economic means to mount a legal defense or are already scared of police. Abusers with higher income levels and powerful social networks are often more confident in exercising private property/civil rights and challenging the authority of social workers to get involved. They are able to afford private legal counsel to assert riskier positions and resist investigations while fighting each stage of a child protection proceeding, and they may feel more entitled to file formal complaints against child protection agencies.
Awareness can help more children
It is important for attorneys and practitioners in this space to be aware of, and work to reduce the impacts of, these potential biases so we can get more children and families the help they need to break the cycle of violence and neglect.[iv]We know that children who are abused and neglected that don’t receive any interventions are statistically likely to suffer mental health issues into their adult lives and become abusive themselves. Money alone cannot protect a child from these outcomes.
Kelsey J. Nunez‘s boutique solo practice is dedicated to social entrepreneurs and collaborative culture, and she volunteers as an attorney for guardians ad litem in the Fourth Judicial District. In addition to lawyering, Kelsey owns The Vervain Collective, a plant-based apothecary with a natural health treatment room in Garden City.
[i] See generally, David Pimentel, Punishing Families For Being Poor: How Child Protection Interventions Threaten The Right To Parent While Impoverished, 71 Okla. L. R. 885 (2019); Janet L. Wallace, Lisa R. Pruitt, Judging Parents, Judging Place: Poverty, Rurality, And Termination Of Parental Rights, 77 Mo. L. Rev 95 (2012); Jonathan L. Hafetz, “A Man’s Home Is His Castle?”: Reflections On The Home, The Family, And Privacy During The Late Nineteenth And Early Twentieth Centuries, 8 Wm. & Mary J. Women & L. 175 (2002); Kate Hollenbeck, Between A Rock And A Hard Place: Child Abuse Registries At The Intersection Of Child Protection, Due Process, And Equal Protection, 11 Tex. J. Women & L. 1 (2001).
[ii] Department of Health and Human Services, National Study on the Incidence and Severity of Child Abuse and Neglect (Sept. 1981), at 38.
[iii] Pimental, 71 Okla. L. R. 885 at 904.
[iv] Another interesting resource is the online Reddit thread, “Who else was neglected by affluent parents?”, available at https://www.reddit.com/r/raisedbynarcissists/comments/46vhrl/who_else_was_neglected_by_affluent_parents/. See also, Paracelsus Recovery, Affluent Neglect (Oct. 15, 2015), available at https://www.paracelsus-recovery.com/blog/affluent-neglect/ (describing and offering help for long term impacts from neglect in affluent families).
By Maritza Black
Making a commitment to pro bono can be difficult, especially for young attorneys facing a host of new responsibilities and uncertainties. To learn more about fitting pro bono into practice, I sat down with attorney Scott Learned to find out more about the CASA program and how he gives back to his community.
Scott, a law graduate from Georgetown University, is a sole practitioner who specializes in wills and probate. He started volunteering with CASA in 2001 and now has almost 20 years of experience as a volunteer attorney.
Maritza: What made you interested in volunteering with the CASA program?
Scott: When I first started practicing law, I wanted to do pro bono service to honor our 50-hour commitment to pro bono, but I wasn’t sure where to start.
I asked around at the firm where I was working and someone recommended that I try the CASA program because it was an easy way to provide service: they will tell you where to show up and what to do. At first, I had no idea what to do, but I quickly figured it out and learned how important the program is to the community.
Maritza: Can you walk me through what handling a case as a CASA attorney looks like?
Scott: We get the case after children are taken into custody for some reason, like extremely unsanitary conditions, drug use, or a public event where the kids were in danger.
By the time a CASA lawyer gets involved the children are typically with a foster family and a Guardian Ad Litem has been appointed. The Guardians Ad Litem are volunteers and they come from all different walks of life. Some of them are sophisticated as far as the legal process goes, while others are not and can be completely overwhelmed. We are assigned to represent the Guardian Ad Litem.
The CASA program takes care of all of the case processes. They give us all of the materials for the file, such as the police report and Health and Welfare report. We get a set of hearing dates and we typically touch base with the Guardian Ad Litem before the first hearing date to find out what’s going on.
There’s really not a lot of out-of-court preparation, besides reading through the file and meeting with the Guardian Ad Litem to learn about his or her concerns.
The first hearing is the case plan hearing, which is basically about the hurdles that the parents have to meet to get their children back. This plan is usually written by Health and Welfare and the hearing is an opportunity for the parents to voice their thoughts on the plan through their lawyers.
We do a lot of listening as a CASA program attorney, and translating for our client. There is a lot of “legalese” that goes on that our client may not follow. Our client could be anyone: a retired person, a stay-at-home mom, or a business person.
The trick for the lawyer is to understand what the Guardians Ad Litem are following and what they’re not, and to help them understand what the process is, or if they have any concerns that are not being addressed, to raise those concerns.
This is a really different world from most litigation. The prosecutor is there to argue on behalf of the government; the public defender or the parents’ lawyer is there to argue on behalf of the parents. We’re there to advise the judge.
There’s not a lot of argument from our side. Instead the role is to help the Guardians Ad Litem voice any concerns they may have, like if they’ve been to visit the house and they’re concerned about sanitization, or if they’ve visited the foster family and they’re concerned because the foster mom seems overwhelmed. They may even just want to comment that Health and Welfare is doing a great job.
Maritza: How long does a CASA case typically last?
Scott: In Ada County there’s always a case plan hearing and at least a six-month review hearing, but after that it really depends on what is happening with the case. There can be anywhere from just three hearings to ten or even twelve. I keep several cases going at any given time, and when one resolves I pick up a new one.
Maritza: How do you balance a demanding career as a sole practitioner with your commitment to pro bono work?
Scott: That can really be a challenge. I think if you had a really intense litigation calendar it could be hard. Certainly for transactional attorneys it should be fine, or for civil litigators with a little bit of flexibility in their schedule.
My schedule tends to be flexible because of the type of practice I have. As a sole practitioner there are so many things pulling me in different directions, but the nice thing about doing the CASA program is that you can build in a system in your office that becomes part of the office routine.
The CASA program is very accommodating. If necessary, you can send a substitute attorney in your place or appear telephonically. I rarely have to do that, but if I were a solo practitioner thinking about starting to take these cases and worried about the time commitment, it would be reassuring to know that I could have another lawyer on standby in case I were unable to make it.
The CASA program and the Court have gotten better at helping the CASA attorneys do what we do, whether that’s offering CLEs or just being aware that we’re volunteers and have other commitments.
Maritza: What skills have you developed from participating in the CASA program?
Scott: I’ve developed an awareness that these sorts of cases exist, and that although Idaho is an awesome place, we still have neglect and abuse of kids in our community. I like feeling that I’m helping in some way to solve that problem.
I’ve also gained an understanding of an aspect of the law (the Child Protection Act) that I wouldn’t have otherwise been exposed to.
Maritza: Why would you recommend that other young attorneys become involved in the CASA program?
Scott: When I was first starting out as a new attorney with very little experience in the courtroom it was very helpful to be able to gain court room experience without being under a lot of pressure. As a CASA attorney you’re there to assist the Guardian Ad Litem in communicating with the judge. You’re not arguing the motion or being involved in the conflict; you’re somewhere in the middle, telling the judge: “Here’s what I think is happening.”
To be able to go into the courtroom and speak to the judge and counsel is a great way to get your feet wet if you’re at all interested in litigation or court work. I am almost certain that the first time I appeared in court was as a CASA attorney, because if you’re in a big firm you don’t really get many courtroom opportunities. Appearing as a CASA attorney was very helpful in becoming more comfortable with the judicial process and just being in the courtroom.
Maritza: What about attorneys who don’t have family law experience? Would you recommend that they become involved in the CASA program?
Scott: Absolutely. Some lawyers considering going into this area are hesitant because they don’t know anything about the substantive law in this area. I didn’t know anything about substantive law when I started. All I knew was that the role of the Guardian Ad Litem is to advise the Court of any problems.
As I’ve volunteered in the program over the years I’ve learned the substantive law, but that’s not something that the attorney needs to worry about. Mostly that’s what the prosecutor, the judge, and the parents’ attorneys are worrying about.
What the CASA attorney needs to understand fundamentally is that they are the communication go-between between the Guardian Ad Litem and the Court. The rest is just falling back on your general knowledge of due process and how the court system works to help your client understand what’s going on.
I will also say that the other attorneys – the public defenders and the prosecutors – are extremely knowledgeable and have been able to help me with any questions that I’ve had.
Maritza: Is there a particularly rewarding memory that stands out to you from your years of participating in the CASA program?
Scott: I’ve seen cases that were really tough, in terms of level of abuse or neglect. I’ve seen cases where parents never got on board with getting their kids back and we’ve terminated parental rights or the parents just gave up on themselves and having a relationship with their children.
As a parent I always feel bad when we have to terminate parental rights, but if we do it is usually because the parent has checked out and is not interested. In that case, I’m glad we’re there for these kids and able to get them into a better situation.
I have also seen a number of cases where this was the wakeup call that mom or dad needed. There are cases where you think that it’s never going to go well, but the parents just get it.
Often the parents are facing a companion criminal issue that relates to the abuse or neglect, or they have a pending drug charge, so watching the parents work through drug court, family court, and child protection court all at the same time and really changing their lives for the better, and the lives of their kids, is really amazing.
In those cases our role is really as a cheerleader for the parents, saying “You can do this! Don’t give up!” We’ve watched some great cases where kids have gone back with their parents and it has been successful by all accounts.
It’s not all roses and sunshine, but sometimes it is, and those times are rewarding. When it’s not, I’m really glad that we can be there to step in for these kids and advocate for them, and say it is time to terminate mom or dad’s parental rights. When this happens the kids are almost always placed with family, like an aunt or uncle.
It’s rewarding to know that if you’re taking a kid out of an abusive situation you’re putting them in a family that can help raise them and help them deal with the traumatic situation they’ve been through.
Maritza Black is a 3L law student at Concordia University School of Law who is currently interning at Learned Lawyer. She is interested in practicing immigration and estate planning. In her free time Maritza enjoys being physically active and hiking in the foothills.