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.
By Janice Beller
It’s 2 a.m. and my mom is gone again. I heard a noise and went into my mom’s bedroom. The bed was still made from when I fixed it yesterday morning before school. When my sister and I got home after school, we saw her passed out on the couch. I woke her up when dinner was ready. She ate with us before she gave us both an intoxicating kiss and said she had to run to the store. When the police knocked on the door, I knew why they were there . . .[i]
Last year, for 3,111 children in Idaho, their stay in foster care began in a similar way, with one or both parents or legal guardians leaving their children in such a state that police had no other option but to declare the children in imminent danger.[ii] Of the children who entered foster care, regardless of their entry date, 91 of them aged out of care in FY2019—meaning that on their 18th birthday, for a variety of reasons, they left foster care unable to return home or without finding a forever family.[iii]
For Each Child, a Village of Voices
A child’s GAL is meant to be the one constant face the child sees during the child’s time in foster care. GALs also serve as the child protection (CP) judge’s “eyes and ears” during the case. In Idaho. CP guardians ad litem come from a network of seven private non-profit programs, one in each of the seven judicial districts. These programs recruit and train community volunteers, but the need consistently outpaces the available resources.
Attorneys can serve as either a GAL volunteer or as an attorney representing a GAL (but not both). For more information on how you can help, check out www. idahocasa.org.
For children entering foster care, it is an overwhelming time. Attempting to mitigate the mental, emotional, and physical trauma these children enter care with, Idaho law has several mandates designed to provide them with supportive adults who can help them navigate the child welfare system. Idaho Code section 16-1614 requires the appointment of a guardian ad litem (GAL) for children under the age of 12, and an attorney for the GAL.[iv] It also requires the court to appoint an attorney for children 12 or older, and a GAL may be appointed if one is available.[v]
While attorneys have a professional and ethical obligation to represent the expressed wishes of the children they serve, courts task GALs with reporting to the court what they believe is in the best interest of the child, among other duties.[vi] Under Idaho Juvenile Rule 40, foster parents also have a right to be heard in proceedings involving the children in their care.[vii]
For some children, a public-private partnership with the Casey Family Programs may provide additional services or a case manager who can help them navigate their options for other available community-based assistance.[viii] The Casey Family Programs organization, operating as a non-profit in all 50 states, works on multiple levels with the mission to “provide and improve – and ultimately prevent the need for – foster care.”[ix] Their services include direct work with foster children, partnering to support state child welfare agencies, and providing non-partisan data to public officials to inform system-level change.[x]
At the system level, other non-profit advocacy groups like Idaho Voices for Children join Casey Family Programs, working tirelessly to raise awareness of child welfare issues within Idaho’s legislative and policy-making bodies. In 2018, the Idaho Legislature added “citizen review panels” tasked with the goal of “evaluating and providing recommendations for the improvement of the child protection system” within each local health district.[xi]
And somewhere in this collage of faces that come and go, in the chaos of having one’s life packed into a black garbage bag, and on this trail of bread crumbs children desperately hope will lead back to their own beds, foster children are told they have a right to be heard too.[xii]
The only problem, said Ivy S., who aged out of foster care in 2016, is that kids have no idea what to say.
Ivy S. entered foster care at age 12, just as she began her freshman year of high school. She was removed from the care of her mother, whose rights were never terminated, but with whom Ivy has no contact.
During her six years in care, she had “four or five” foster homes and endured a failed attempt to reunify with her biological father in California. Ivy uses the term ‘reunify’ loosely; she noted she had never lived with her father and had only briefly met the man once in the last 18 months. Her out-of-home placements included a stay in a group home, which she was told was meant to last only a couple of weeks but lasted two years. Fortunately, it was at this group home she was first introduced to a document called the “Youth in Care Bill of Rights.”
Idaho Youth in Care Bill of Rights
All children and youth in care have the right to:
1. Have lifelong family connections, including siblings, grandparents, and extended family.
2. Live with, be loved by, and cared for by those they consider family.
3. Be who they are.
4. Be included in their case planning with a team of people that advocate with them and for them.
5. Have an informed choice in the types of physical, dental, and mental health care they receive.
6. Have a qualified advocate representing them and helping the youth advocate for themselves.
7. Participate in and receive a high-quality education, including the ability to participate in extracurricular activities.
8. Receive the skills, knowledge, and resources needed to be a successful adult after they transition from foster care.
“It took me months before I noticed the paper posted on the bulletin board,” Ivy said. “The home staff didn’t emphasize what it was, but when I realized what it provided me with, it was powerful.” She also noted, “When I left the group home for my last foster placement at 16, I made sure I had a copy with me.”
Written for Youth, by Youth
The Youth in Care Bill of Rights, while it does not carry the full force and effect of law or judicial rule, is part of the standard of care for foster youth in Idaho. Drafted by the Idaho Foster Youth Advisory Board (IFYAB) in 2015, it was a collaborative effort between the IFYAB and the Idaho Department of Health and Welfare (IDHW).[xiii] The document includes eight general rights foster youth have while in care. Each general right has specific details listed underneath it. Many of the enumerated rights are guaranteed to foster youth by either state or federal law.
Every child age eight or older reviews and receives a copy of the document, which is signed by the child, the child’s foster parent, the child’s IDHW case worker, and any additional relevant case worker or service provider.[xiv]
The Youth in Care Bill of Rights in Action
When I spoke with Ivy for this article, she—rather proudly—noted that “. . . she doesn’t take no for an answer very well.” She observed that during her time in care, she was often asked what she wanted, but then was told that while her opinion had been noted, “we know what you need.” Ivy found a source of strength in the Youth in Care Bill of Rights.
In high school, Ivy noted that foster youth are at a particular disadvantage. Not only do they endure all the ritual social drama and unrest that marks a teenager’s life, but foster kids often navigate these rough waters with handicaps other kids do not. Foster kids try to make friends, but something as simple as hanging out at a friend’s house becomes so complicated, parents of potential friends choose not to get involved.
Extracurricular events and after-school jobs become critical for a sense of normalcy but can be threatened by transportation limitations. Foster youth often don’t have cell phones and rarely are permitted to obtain a driver’s license because of the liability and costs associated with each. With the Youth in Care Bill of Rights in her corner, Ivy fought to overcome these logistical issues and secured transportation for her activities. Not only did she serve as her school’s drama club president, but she also worked as a ski instructor at Bogus Basin. That job, Ivy recalled, allowed her to apply for a college scholarship that required recipients to save at least $1,000 to receive the benefit of their offering.
In her last foster placement, Ivy developed an illness for which she requested to be taken to a doctor, only to have her foster parent insist on homeopathic and natural remedies. Ivy used the Youth in Care Bill of Rights to insist she be taken to a doctor of her choosing. Strep throat was quickly diagnosed and treated. She also used the document to exercise her right to explore religious and spiritual enrichment activities different from those practiced in her foster placement.
Ivy was quick to share the credit for some of these successes with her Casey Family Programs case worker. Paired with Ivy when she turned 16, Ivy credits her case worker with taking the language of the Youth in Care Bill of Rights to heart and fighting right alongside Ivy for what she needed to be successful.
“I graduated from high school at 17, which meant I was still a minor when I tried to move into the dorms my freshman year at BSU,” said Ivy. “The judge in my child protection case yanked me out of the dorms, and my foster parent refused to take me back and forth from school every day. My dreams of college and the scholarship I’d worked so hard for were gone, just like that. My Casey [Family Programs] caseworker stood with me, testified on my behalf in court, and didn’t let me give up. I finally won the right to live in the dorms and attend college.” She graduated in May with a double major in environmental studies and political science, and is headed straight off to graduate school, pursuing a master’s degree in public administration.
Setting Kids Up for Success
When asked why the Youth in Care Bill of Rights was important, Ivy noted—quite plainly— that “any kind of empowerment or control in the system can mean the world to a kid in foster care.” Adults, she noted, forget that when a child enters foster care, they often go from being the “grown up” in a situation to having no control at all. Kids are forced to relinquish the safety of what they know and must trust people in a system they do not understand.
Idaho Foster Youth Advisory Board Mission Statement:
The Idaho Foster Youth Advisory Board empowers youth by uniting our voices to provide leadership, gain trust, and create youth informed change that will improve the quality of life for future youth.
Ivy also speaks of serving as a mentor for other foster youth navigating the system. She noted that when she lived in the group home and started getting the things discussed in the Youth in Care Bill of Rights, other children living at the home began to realize they could speak up too. That desire to serve as a mentor led her to join the Idaho Foster Youth Advisory Board in 2016.[xv] She currently serves at the Board’s secretary. But her aspirations go far beyond that.
She is concerned that kids exiting the child welfare system today are left with little in the way of options and even less information about how to make good choices. She noted that only 50% of foster youth have either their high school diploma or GED by the time they turn 18.[xvi] One in four foster youth suffer from a varying degree of PTSD from the trauma of their childhood experiences.[xvii] The future for a child leaving foster care currently, in her experience, leads to one of four outcomes: homelessness, pregnancy, couch surfing, or incarceration.
Ivy’s last school project before graduation? A paper that advocated for the extension of services for foster youth to age 21. She is motivated by the fact that kids exiting foster care are quick to want to leave care but have no idea what to do once they are independent. “Kids want to leave,” she noted, “but then want to come back and seek more assistance. Most don’t know they can. So many kids don’t know all these services [are] available to them.” Ivy added, “It’s not like we’re given a list that we can access. You have to, as a kid, go to someone and say, ‘I need this specific thing,’ and then find out if that help exists. A lot of kids don’t know it’s OK to ask those questions.”
As she reflected on what the Youth in Care Bill of Rights did for her, she noted, “I was used to fighting for what I wanted, but there were a lot of roadblocks where [people] would say ‘no.’ If I didn’t have that physical copy [of the Youth in Care Bill of Rights] to point to and lean on . . . ,” Ivy’s voice trailed off, then she continued, “I could show them I have this right and you can’t say ‘no’ to me because I’m entitled to it,” Ivy paused again, “It gave me that sense of not having to accept what I felt was an injustice. And I think that can be a really powerful tool.”
Janice Beller served as a child protection guardian ad litem and spent seven years working at the Idaho Supreme Court with the child protection program. Her passion for giving children a voice led her to law school. She is a 2016 graduate of the University of Idaho College of Law. Thanks to her guitar-playing teenager, her knowledge of Metallica’s song catalog is rapidly expanding.
[i] AUTHOR’S NOTE: I served as a volunteer guardian ad litem for a number of years. While based on very real stories and situations of children in care generally, this particular vignette is entirely fiction.
[ii] Idaho Department of Health and Welfare, Facts and Figures and Trends 2019-2020, https://healthandwelfare.idaho.gov/Portals/0/AboutUs/Publications/FFT2019-2020.pdf, 46 (2020).
[iii]Id. at 48.
[iv] Idaho Code § 16-1614(1).
[v] Id. at (2).
[vi] Idaho Code § 16-1633.
[vii] Idaho Juvenile R. 40(a).
[viii] Casey Family Programs, What We Do, https://www.casey.org/what-we-do/direct-services/ (last visited April 30, 2020).
[xi] Idaho Code § 16-1647(1).
[xii] Idaho Juvenile R. 40(b).
[xiii] See Idaho Department of Health and Welfare, Idaho Youth in Care Bill of Rights, 3 (2015), https://healthandwelfare.idaho.gov/Portals/0/Children/AdoptionFoster/YouthInCare-BillofRights.pdf.
[xv] For more information on the Idaho Foster Youth Advisory Board, visit their 2019 legislative presentation. Idaho Foster Youth Advisory Board, https://legislature.idaho.gov/wp-content/uploads/sessioninfo/2019/interim/190228_cplo_IFYABFCAwareness.pdf, (last visited April 6, 2020).
[xvi] National Foster Youth Institute, Education, https://www.nfyi.org/issues/education/ (last visited April 6, 2020).
[xvii] Casey Family Programs, Improving Family Foster Care: Findings from the Northwest Foster Care Alumni Study, 2 (2005) https://caseyfamilypro-wpengine.netdna-ssl.com/media/AlumniStudies_NW_Report_FactSheet.pdf.
By Hon. Michael J. Oths
Just a song before I go, to whom it may concern . . . (Crosby, Stills and Nash, 1977).
More quickly than could have been imagined, my term as Bar Commissioner is drawing to a close. In my first “President’s Message” I described one of the roles of the Commission as being able to address unanticipated issues facing the legal profession, as they arise. Boy howdy [i], have we seen some unanticipated issues.
Typically, one’s final article is a recap of events of the past three years, but as if an occult hand had intervened, world events have pushed everything else to the back burner. I will not belabor the pandemic theme, partially because as this is written (April 30), much of it may be obsolete by the time of publication. A couple of points do bear mentioning, however.
While some of us have seen our work responsibilities slow down, bar staff (and particularly Maureen Ryan Braley) have been working long hours to meet challenges presented concerning admission to the profession. Through the creative use of technology, grading of the bar examination was completed essentially on schedule. Likewise, it appears that the July bar examination is still a “go,” again with some logistical juggling.
The second point about the pandemic involves the role of lawyers. While we all need to be world citizens and do our part, history has not always been kind in reviewing actions taken in the face of crisis. We need to be on guard to protect the rights of clients. My fellow Commissioner David Kerrick helped a dying client, confined to his hospital bed, in completing some necessary legal work, after convincing the hospital staff that the one-to-a-room room guideline needed to be relaxed in that particular case. As Dave eloquently reminded us at the outset of this crisis:
“If lawyers cannot perform their work, social order and the economy will collapse. Like medicine where there are some non-essential procedures, so too in the law there are non-essential legal procedures. But the simple legal needs of ordinary people are vital to our society.”
Now, I do want to comment on the state of the Idaho State Bar. As I strongly suspected before deciding to seek election to the Commission, your bar is in excellent hands. Diane Minnich is now the longest-tenured bar executive in the country, and for good reason. She is two steps ahead of us at almost every turn, and helps continue the collaborative spirit that has characterized the Bar Commission throughout the years. As lawyers, we should expect excellence from our own lawyers, which is exactly what we get from Brad Andrews and his legal team of Julia Crossland and Caralee Lambert. Their advice and counsel are of the highest caliber, both intellectually and professionally, helping the Commission to do its job properly.
My first quarters as Bar Counsel were in the old house on State Street that served as the bar headquarters. Outside my office were the photographs of all the past Bar Commissioners, back to the 1920’s. Many of those men (and they were all men at that point) were and are legendary Idaho lawyers. As I got to know some of them, I was struck by the fellowship that had developed through their service on the Commission. Fred Hahn was the informal emcee at the Commissioners’ annual reunion dinner, and I treasured the opportunity to eavesdrop on their past experiences.
Similarly, it has been my privilege to serve on the Commission with some folks who are outstanding lawyers, but better people. A big thank you to Kent Higgins, Mike Howard, David Cooper, Don Carey, Anne-Marie Fulfer, and Kurt Holzer, with an especially big thank you to my brother-in-Commission, Dave Kerrick. You will always be friends and have fulfilled every expectation of what I thought the Commission would be.
As this is being written, the voting is being held for the next class of Bar Commissioners. I expect they will have the same positive experience I have had.
Finally, thanks again for the opportunity to serve on the Commission – it truly has been one of the highlights of my professional life.
Hon. Michael J. Oths is the immediate past President of the Idaho State Bar and a certified “bar junkie.” Oths is a Magistrate Judge in Ada County. Prior to his appointment as a Magistrate, Oths was Bar Counsel for the Idaho State Bar for 17 years. He received his J.D. from the University of Oregon School of Law.
[i] Obligatory shout out to Texan Jim Cawthon
By Hon. Bryan K. Murray
While the world has been preoccupied with a pandemic known as COVID-19, a long-existing health crisis continues unabated causing far more long-lasting harm to society. As a member of Idaho’s bench for the past 27 years, one of my priorities has been addressing juvenile justice issues. This experience has revealed a pressing health problem known as ACEs, or Adverse Childhood Experiences.
The symptoms of this health crisis fill the Idaho Court system. What are some of the symptoms? Divorces, domestic violence, substance abuse, addictions, DUIs, mental illness, child abuse, neglect, and many more chronic problems are symptoms filling the court system. Many of the people seeking justice in Idaho courts have histories of trauma and abuse. This health crisis fills our courts, jails, and prisons.
With the outbreak of the COVID-19, the world health organizations mobilized a swift health care response. People can debate how swift the world responded to COVID-19, but what is clear is that it was not the years of delay experienced in gaining a limited response to ACEs. We now know a great deal about the health harm and society costs of childhood trauma, but there is little outcry to improve the way society prevents or responds to ACEs.
Why Should Courts Care About ACEs and What Are They?
Apart from human misery, why should we care about ACEs? The cost to taxpayers is a good reason. ACEs were named and numbered by an insurance company asking, “Why are some people so costly to insure?” The CDC-Kaiser Permanente Adverse Childhood Experiences (ACE) Study is one of the largest investigations of childhood abuse and neglect and household challenges and later-life health and well-being.
The original ACE Study was conducted at Kaiser Permanente from 1995 to 1997 with two waves of data collection. Over 17,000 Health Maintenance Organization members from Southern California receiving physical exams completed confidential surveys regarding their childhood experiences and current health status and behaviors. [i]
The original ACE study focused on 10 childhood experiences that were predictive of bad outcomes in adulthood. Through my experience, I have learned that the bad outcomes do not wait for adulthood to be seen. In children, trauma can look like ADHD, Bipolar Disorder, Conduct Disorder or “Pissed-off kid disorder.” As children go through life experiencing multiple ACEs, the chance for healthy brain development is lost and delayed.
What Are the ACEs?
The 10 ACEs used as a common measurement are divided into three life areas: Abuse, Household Challenges, and Neglect. A child who accumulates more than one ACE is more likely to have adverse life outcomes in adulthood. All ACE questions refer to the respondent’s first 18 years of life. The 10 ACEs are:
- Emotional abuse: A parent, stepparent, or adult living in your home swore at you, insulted you, put you down, or acted in a way that made you afraid that you might be physically hurt.
- Physical abuse: A parent, stepparent, or adult living in your home pushed, grabbed, slapped, threw something at you, or hit you so hard that you had marks or were injured.
- Sexual abuse: An adult, relative, family friend, or stranger who was at least 5 years older than you ever touched or fondled your body in a sexual way, made you touch his/her body in a sexual way, attempted to have any type of sexual intercourse with you.
- Mother treated violently: Your mother or stepmother was pushed, grabbed, slapped, had something thrown at her, kicked, bitten, hit with a fist, hit with something hard, repeatedly hit for over at least a few minutes, or ever threatened or hurt by a knife or gun by your father (or stepfather) or mother’s boyfriend.
- Substance abuse in the household: A household member was a problem drinker or alcoholic or a household member used street drugs.
- Mental illness in the household: A household member was depressed or mentally ill or a household member attempted suicide.
- Parental separation or divorce: Your parents were ever separated or divorced.
- Incarcerated household member: A household member went to jail or prison.
- Emotional neglect: No one in your family helped you feel important, special, or loved. No one in your family looked out for each other and felt close to each other, and your family was not a source of strength and support.
- Physical neglect: There was no one to take care of you, protect you, and take you to the doctor if you needed it, you didn’t have enough to eat, your parents were too drunk or too high to take care of you, and you had to wear dirty clothes.[ii]
There are many other types of childhood adversity, but these 10 have been proven to be consistently predictive of trauma in numerous studies around the world, confirming the original ACE study. It should be remembered that experiencing childhood trauma can be predictive, but it is not determinative. Individuals can overcome the trauma through having or developing resiliency.
Can We Predict ACEs?
My juvenile detention center has a clinician who, in cooperation with Idaho State University, has been collecting ACE data on Idaho juveniles in detention. In the general population of Idaho teens, 45.8% have no ACEs. For the kids being booked into detention only 7.8% have no ACEs. In the reverse, in detention, 63.2% of juveniles have three or more ACEs. In the general population the percentage is 15.4%. Girls’ coming to detention have less serious crimes, but a much higher ACE count. Girls average 5.19 where the boys average 2.88 per child.[iii]
These adverse childhood experiences cause children to be more prone to aggression, delinquency, further victimization, educational failure, and involvement in juvenile justice. “The accumulating evidence for the negative impact of ACEs on health outcomes in adulthood mean that they are now considered a public health concern.” “Common behaviors of people having 3 or more ACEs include: Lack of physical activity, smoking, Alcoholism, drug use, and missed work. Physical and mental health predictable issues include severe obesity, diabetes, depression, suicide attempts, STDs, heart disease, cancer, stroke, COPD and broken bones.”[iv]
“People with six or more ACEs died nearly 20 years earlier on average than those without ACEs.”[v] Substance abuse only offers a seemingly attractive escape from past trauma without a promise of healing. J. K. Rowling, in Harry Potter and the Goblet of Fire observed, “Numbing the pain for a while will only make it worse when you finally feel it.”[vi] In sum, children with ACEs are likely to engage in some activity to numb the trauma that they have long suffered creating significant personal and societal burdens that cannot be ignored any longer.
Trauma Informed Courts Can Assist in the Impacts on the System and the Individual
Justice Bevan in a 2019 Idaho Supreme Court decision, State v. Eldon Gale Samuel III, 452 P.3d 768 (2019), carefully outlined the ACEs experienced by the 16-year-old defendant before he killed his father and brother. ACEs do not justify harm to others, but they do help understand cause and effect. Trauma is not an excuse, but it does explain why hurt people hurt people. Please read how Samuel was born in California and ended up in an Idaho jail and how many ACEs that he accumulated between birth and jail.
Idaho courts have become an emergency room for the treatment of trauma. Trauma makes the mind and physical body sick and the courts are on the front line of dealing with this sickness in society. Idaho judges are being trained in trauma and how to create trauma-informed court rooms.
The National Council of Juvenile and Family Court Judges defines trauma-informed courts as a public health approach, whereby there is a communal understanding of the long term impact of trauma on child and adult development, including involvement in the judicial system.[vii] The system needs more, including trauma-informed lawyers and staff. We need to be able to ask why people are making the mistakes and if the answer is trauma, have trauma-informed treatment available.
Many Idaho judges lead problem-solving court teams that focus on health issues caused by trauma. These include substance abuse, thinking errors, criminal behaviors, mental health, domestic violence, child protection, and educational failure. These courts attempt to treat the whole person and all of their needs from employment to housing and span the gap between health care and justice.
The most challenging of participants are those who have multiple co-occurring problems caused by a full list of ACEs. Without problem solving courts, many of the participants would be filling Idaho jail and prison beds. Some progress is being made in responding to untreated childhood trauma, but courts, state agencies, and private providers are spending much of their resources in serving this population without coordinated prevention efforts.
We Can Prevent, Identify and Treat ACEs
The time has come when we need to prevent ACEs, and when they do occur, provide effective treatment and response. The Harvard Center on the Developing Child provides great research and guidance not only on how to respond to the needs of this population, but also on supporting collaboration across policy and service sectors to identify vulnerable children and families that require preventive assistance.[viii]
The Idaho Supreme Court Child Protection Committee, Department of Health and Welfare, and the Department of Juvenile Corrections have been working with the Center for Juvenile Justice Reform at Georgetown University on a Cross-over youth project. A crossover youth is defined as “Any youth who has experienced maltreatment and engaged in delinquency (regardless of whether he or she has come to the attention of the child welfare and/or delinquency systems).[ix] In cooperation, a practice has been developed to identify these youth and to have a joint response to their needs, including their parents and school district that are a critical part of any plan for their success.
Opportunity for Improvement
The passage of additional child protection legislation, The Family First Prevention Services Act, or Family First at the end of 2018, provides Idaho with an opportunity to improve how we prevent child abuse. Before this act, states have received little federal support to do prevention work. Agencies have been paid only for services provided to kids in foster care. Under Family First, prevention services will be available for mental health, substance abuse, and in-home parent skill-based programs for children or youth who are candidates for foster care, pregnant or parenting youth in foster care, and the parents or kin caregivers of those children.[x] We cannot let this opportunity pass on improving how Idaho prevents or responds to children who have experienced ACEs. We cannot turn our backs and say: “It is a problem for Health and Welfare.” Health and Welfare is our state child protection agency, but our communities must become the Idaho Child Protection System.
We cannot continue to allow up to 20% of our population to suffer misery in life and struggle with health and being unproductive because of trauma experienced in their childhood. The problem has been identified. Our communities can work on preventing and then providing effective treatment for what we cannot prevent.
Giving our children a great childhood will create the way for them to be healthy productive adults.[xi]
Hon. Bryan K. Murray has been a Bannock County Magistrate Judge since 1993. Judge Murray works in the areas of child protection, juvenile justice, and civil mental commitments. he is also the Chair of the Idaho Supreme Court Child Protection Committee.
[ii] Too many sources to list but I encourage you to do an internet search on ACEs.
[iii] Lynch, S.M. & Weber, S. (February 4, 2020) District VI 2016-2018 Detained Youth & ACES: Preliminary Findings 2020. Idaho State University
[v] Am J Prev Med. 2009 Nov;37(5):389-96. doi: 10.1016/j.amepre.2009.06.021. https://www.ncbi.nlm.nih.gov/pubmed/19840693 Adverse childhood experiences and the risk of premature mortality.
[vi] Rowling, J.K., Harry Potter and The Goblet of Fire (695).
[vii] See Trauma-Informed Courts and the Role of the Judge, https://www.ncjfcj.org/child-welfare-and-juvenile-law/trauma-informed-courts/
[x] Public Law (P.L.) 115-123, file:///F:/CHILD%20PROTECTION/Family%20First/Title%20IV-E%20Prevention%20Program%20_%20Children’s%20Bureau%20_%20ACF.html
[xi] A resource on ACEs with connections to past and ongoing research and application can be found at: https://acestoohigh.com/aces-101/
By John McGown, Jr.
Reprinted from Tax Notes State, January 27, 2020, p. 349
Chairman Tom Harris has been at the Idaho State Tax Commission since May 2019, and he’s still learning how the agency works. He’s a quick study, but he already had the knowledge and experience Gov. Brad Little (R) wanted.
“When the governor’s office asked me to be the chairman, I told them I wasn’t a tax guy,” the retired Western States Equipment president said. “They told me they weren’t looking for a tax guy, and that’s what they got.”
It turns out Harris’s lack of tax expertise hasn’t been a problem. His own skill set more than makes up for it.
“I know how to run a large organization – a complex organization – and there are a lot of similarities between the tax commission and Western States,” Harris said. “We had five businesses under one roof that you had to wrangle and keep harmony in. And the tax commission is much the same. There’s a lot going on, and you have to keep all the pieces in mesh.”
Little appointed him in part because the Governor’s Office and the Legislature had lacked confidence in the tax commission. However, Harris was pleased by what he found when he started the job. “I thought the agency was going to be in disarray, and I expected a lot of dysfunction here. But what I found was hundreds of dedicated people that work hard for the state of Idaho and do the right thing every day.”
Harris came to realize that communication was the biggest problem.
“If the reality is, we’re in pretty good shape but the perception is something different, we have a communication gap. We’re trying to work on the communication to the Governor’s Office. We’ve been much more connected to them and keep them apprised of what we’re doing. We’re also working to keep the Legislature up to speed.”
Harris said several changes to the commission’s organizational structure in recent years have improved the agency. They included separating the audit division from the collection unit and appeals from tax policy. Commissioners created the Taxpayer Resources Unit to improve communications, customer service, and stakeholder relations.
“The changes were made to better serve the taxpayer and to remove the perceived conflicts within the organization,” Harris said. “A lot of pieces were put in place that I get to take advantage of that somebody else did. I can’t take any credit for it.”
Commission stakeholders generally seem to like the agency’s customer service improvements. Respondents to fall 2019 surveys of taxpayers, tax practitioners, local elected and taxing district officials, and state elected officials – primarily legislators – gave the commission high marks for being courteous, knowledgeable and fair. Understanding the agency’s information remains a relative sore spot, with favorable responses ranging from 52 percent to 31 percent.
Harris said making it easier for people to understand the tax commission’s letters, forms, instructions, and other communications is a goal of stepped-up efforts to install “plain talk” skills through more staff training.
Separating Appeals and Operations
Unlike many states that have a director managing their revenue department, Idaho has four commissioners. “I’ve never seen an organization that could have four leaders and be effective,” Harris said. “This agency is a little bit unique. My personal view is probably one person running the agency would be a good idea.”
Little agrees, and recently authorized Harris to restructure the tax commission’s executive administration. Changes effective January 1, 2020, include separating the agency’s appellate functions under the four commissioners, and the chair appointing a director to oversee tax operations, including revenue operations, collections, audit, property tax, and taxpayer resources.
The agency’s existing appeals division, including its legal and administrative personnel, supports the commissioners in hearing appeals and overseeing settlement meetings, and when they sit as the state Board of Equalization, hearing disputes over county property tax valuations. Commissioners continue to have authority over approving the agency’s legislative proposals and rules governing administration to tax laws. Harris continues to lead day-to-day operations during the search for a director, which he said could take several months.
The state’s Board of Tax Appeals – already a separate entity – remains in place to hear appeals from tax commission appellate decisions. Some challenges can continue straight to district court.
Harris noted that nowhere else in Idaho’s state government is any agency led by a board or commission alone without a director who’s immediately responsible for operations. The tax commission and its predecessors in administering Idaho’s evolving tax structure have seen many changes over almost 130 years of state history. The latest restructuring will have no impact on taxpayers or most of the agency’s employees.
“Our goal is to address concerns about potential or perceived conflicts of interest between operational functions and cases on appeal,” Harris said. “At the same time, we’re empowering our leadership team of division administrators and department heads to more efficiently and effectively manage daily business with a single point of oversight.”
Beyond the mechanics of restructuring, Harris is working to make the entire agency more strategic. “At Western States, developing and executing strategy was the center of everything we did. I’m trying to bring that to the tax commission.”
Before Harris came aboard, the strategic planning process was largely a required paperwork exercise that didn’t have much impact on the commission’s day-to-day operations. One of his first tasks as chair was to guide the agency’s leadership team through a more robust and meaningful strategic planning process targeting such weaknesses as stakeholder support and recruiting and retaining talent while leveraging such strengths as operational efficiency and use of technology. “We’ve drawn a road map of where we’re going. We have action items that are in line with that strategy,” he said.
One of those action items is improving relationships with stakeholders, from tax professionals to legislators. Before Harris came aboard, the tax commission was dealing with the political fallout from delays in the state’s receipt of income tax withholding revenue in the wake of sweeping federal and state tax reforms. That left lawmakers concerned about the impact on the fiscal 2020 budget.
“Nobody really knew what the withholding revenue would be. But we got most of the money back when people filed their tax returns,” Harris said. “The latest income tax numbers are ahead of the forecast, so it’s starting to turn around.”
As he was learning about that issue, the commission was implementing a new law requiring some out-of-state retailers and marketplace facilitators to collect Idaho sales tax. The state expected to collect about $31 million from those businesses during the first fiscal year in a special tax relief fund, but almost $29 million came in through the first five months alone.
Looking to the Future
Harris said the commission’s biggest challenge going forward is providing more services, with the same or fewer resources, for a growing population of taxpayers. “We realize that we’re going to keep the same number of employees even as the state gets bigger and we process more tax returns and money,” he said. “That means we need to leverage our technology to get more out of it, and we need to work on more process improvement.”
Harris also sees a tide of retirements changing the tax commission leadership team significantly in the next few years. “When we interview replacements, we’re looking for the soft skills of a leader first, and then the technical skills,” he said. “Everybody who’s been selected recently and going forward — they’re going to be great leaders. Leaders can get people to follow, and leaders can explain the mission of the organization and what we’re trying to do and get people to align with that.”
He’s counting on the expertise of his staff to ensure the agency’s future success. “There are people who’ve been in this business 30 years. I have a lot of resources to get up to speed,” Harris said. “The people at the Idaho State Tax Commission are dedicated to serving the taxpayers of the state. I’ve been really blessed to be given this team.”
John McGown, Jr. is Of Counsel at Hawley Troxell where he focuses on tax, estate planning, and tax-exempt entities. John authored “Tax Thoughts” for The Advocate for 19 years. He was named a Distinguished Lawyer by the Idaho State Bar in 2014. In his spare time, John enjoys being active outdoors and has completed 17 Races to Robie Creek (toughest half marathon in the West) and reached the Summits of Mt. Borah, Idaho’s highest point, and McGown Peak.
By the Idaho Associations of Defense Counsel Staff
“Jack Gjording has a true love of the law.” “He pours his all into every case; he truly enjoys working up cases and preparing the best litigation strategy possible for his clients.” Quotes from the young attorney who nominated Jack for the Idaho Association of Defense Counsel’s (IADC) first Carl P. Burke Award of Excellence in Legal Defense. That attorney went on to comment that when litigation occasionally presents an attorney with a choice to take the high road or a lower road, without fail, Jack chooses the high road. Powerful words to accurately describe a true professional and asset to Idaho’s legal community; one of two recipients of IADC’s Carl Burke Award.
As a civil defense attorney, Jack has represented defendants in well over 100 civil jury trials. Jack has tried every civil cause of action that can go to a jury. Most trial lawyers stay in their comfort zone, but Jack really doesn’t mind venturing into lawsuits most of us have never heard about. He also is liked by most lawyers on the other side! Jack doesn’t enjoy the wins more than he mourns the losses. After each trial, he just says, “What’s next.” That’s all. He doesn’t brag and he doesn’t beat himself up.
In addition to being a talented trial attorney, Jack truly cares about sharing his experience and knowledge with less experienced colleagues. His door is always open and he willingly spends countless hours working with them on deposition or trial preparation, even if he is not working on the case.
Jack has been a long-time member of IADC and DRI. Jack is an Advocate of the American Board of Trial Advocates (ABOTA) and, like Carl Burke, a Fellow of the American College of Trial Lawyers.
Jack and Trudy have been married for 27 years and he has 8 grandchildren ranging in ages from 22 down to 1 1/2. He sees each one as perfect and with them “yes” is his favorite word! The entire family does wonder, though, why with his large family, are all his screen savers and pictures of his Golden Doodle, Zena! Jack loves to travel and occasionally play golf.
The other recipient of IADC’s Carl P. Burke Award is Richard E. Hall. This year, Rich is celebrating his 50th year as an Idaho attorney. During those 50 years, Rich has earned the reputation as one of Idaho’s legal legends and is widely recognized as one of the best civil defense attorneys in Idaho’s history. Throughout his years of practice, Rich devoted much of his career to defending physicians across the state and has a near-perfect record in doing so. He was recognized by Chambers (USA) as “the best medical malpractice attorney in Idaho – if not beyond.” Known for his incredible presence before juries, Rich commanded the courtroom with an exceptional knowledge of medicine, a gentlemanly and civil nature, and a quick wit.
In addition to Rich’s numerous successes in the courtroom, Rich, like his mentors Chuck Blanton and Dick Fields, is a devoted mentor. Rich was never shy to have a newer attorney handle an oral argument, deposition, or trial witness. In fact, he was notorious for turning to his second chairs during trial and deciding on the fly that his second chair was going to handle the cross-examination of the testifying witness – a horrifying and thrilling moment for all who had the privilege of trying a case with Rich. Rich also has an impressive track record of having his mentees promoted to the bench, with the Honorable Candy Dale serving as Idaho’s first female federal Magistrate Judge and with Judge Steve Hippler serving as a District Judge in Ada County.
Rich is also known for his sense of humor and for his ability to talk to anyone about anything. As Keely Duke knows, having been a dear friend and attorney with Rich for the last 20 years, “there is never a lonely person at a party Rich attends because Rich will quickly make any stranger feel a part of the moment and have them laughing by the night’s end.”
An integral part of Rich’s success is the support of his wife of 53 years, Tonya. She is as well-known as Rich in the organizations Rich belongs to and is a much-loved unofficial member of Idaho’s legal bar. Rich and Tonya have four beautiful daughters and six grandchildren.
Rich is a past President of the Idaho Association of Defense Counsel and, among his numerous other honors, is a Fellow of the International Academy of Trial Lawyers, Fellow of the American College of Trial Lawyers, and Member of the American Board of Trial Advocates. In addition, Rich’s unwavering commitment to professionalism and civility was recently recognized by Concordia University School of Law when he was awarded the Richard C. Fields Civility Award in 2017.
From his childhood in Mountain Home, to law school at Harvard, to 50-years as a civil defense attorney in Idaho, Rich is not just a “legend in his own mind” – a classic Rich saying – but a legal legend in Idaho.
As stated by IADC’s current president, Robert A. Anderson, “The Carl P. Burke Award of Excellence was designed to recognize those attorneys who possess not only the legal skills to successfully navigate the courtroom, but, also the true civility and ethical standards necessary to make the practice of law the respected profession it should be. Both Jack and Rich clearly exemplify these characteristics and it has been a pleasure to know and learn from them both over the years.”
Founded in 1964, the Idaho Association of Defense Counsel (IADC) promotes the highest professional and ethical standards for Idaho’s civil defense and business attorneys. The IADC serves its members through education, recognition, collegiality, and professional development.
By Fred G. Zundel
Assume the following facts. John is an enrolled member of an Idaho Tribe. Jane is not a person of Native American descent and is not a member of any Tribe. The parties are the parents of two minor children. The children are enrolled members of John’s Tribe.
John and Jane were married in 2005 within the exterior boundaries of John’s Tribal Reservation and resided within the boundaries of the Reservation until their separation in 2015. Jane relocated to a home off the Reservation that was 30 miles from John’s home on the Reservation. In January 2016, John filed for divorce in Tribal Court. John’s Petition dealt with all relevant matters pertaining to a divorce action, including custody, child support, and division of property and debts.
John and Jane signed, dated, and filed a settlement agreement for final resolution of all matters regarding their divorce action in Tribal Court. The parties agreed that jurisdiction was proper based on the Tribe’s Law and Order Code and thereby submitted to personal jurisdiction and subject matter jurisdiction within Tribal Court, including subject matter jurisdiction over child custody and child support. They agreed to joint legal custody and primary physical custody of the children for John with reasonable visitation rights for Jane.
Shortly thereafter, the Tribal Court issued its Decree of Divorce, which incorporated all of the terms and provisions of the settlement agreement. The Tribal Court noted that pursuant to its Tribal Code, it could at any time modify the Decree.
Four years later, Jane filed a Petition for Modification in State Court in the county where she was living, which adjoined John’s Reservation. She requested that the Court award her primary physical custody of the children and modify child support accordingly. Pursuant to Idaho’s Uniform Child Custody Jurisdiction and Enforcement Act at Idaho Code § 32-11-209(a), Jane identified the court, case number, and date of the Tribal Court’s child custody determination and thereby alerted the State Court to the Tribal Court’s original jurisdiction of the divorce case and of potential jurisdictional issues regarding her modification case.
Shortly after being served with Jane’s Petition, John filed his own Motion to Modify in Tribal Court and requested that the Court keep in place the custody provisions in the Decree of Divorce but modify child support due to the changed employment of the parties. John and Jane each retained counsel to stay their respective cases until the jurisdictional issues could be resolved.
John and the two children have lived on the Reservation their entire lives. Jane had resided on the Reservation during their marriage but had moved off the Reservation shortly after the divorce. The children have been attending school and receiving medical services on the Reservation their entire lives.
The distance between the Tribal Court and the County Courthouse is approximately 30 miles. Virtually all of John’s witnesses that he would call reside on the Reservation, and virtually all of Jane’s witnesses reside off the Reservation but nearby.
John would argue that since the Tribal Court is aware of the history of the parties and the children, any modification issues could be expeditiously dealt with in Tribal Court, and that the Tribal Court would have the procedures in place necessary to present any evidence in that case. John believes that Tribal Court would be able to deal adequately with the issues raised in Jane’s Petition for Modification and in John’s Motion to Modify and that Jane’s State Cort should be dismissed. Jane would argue that State Court has subject matter jurisdiction to modify the Tribal Decree as to custody and child support and that she should be allowed to proceed in State Court.
Continuing, Exclusive Jurisdiction
Idaho’s Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”) found at Idaho Code § 32-11-202(a) reads as follows:
- Except as otherwise provided in section 32-11-204, Idaho Code, a court of this state which has made a child custody determination consistent with section 32-11-201 or 32-11-230, Idaho Code, has exclusive, continuing jurisdiction over the determination until:
- A court of this state determines that neither the child, nor the child and one (1) parent, nor the child and a person acting as a parent have a significant connection with this state and that substantial evidence is no longer available in this state concerning the child’s care, protection, training and personal relationships; or
- A court of this state or a court of another state determines that the child, the child’s parents, and any person acting as a parent do not presently reside in this state.
- A court of this state which has made a child custody determination and does not have exclusive, continuing jurisdiction under this section may modify that determination only if it has jurisdiction to make an initial determination under section 32-11-201, Idaho Code.
Idaho Code § 32-11-203 provides as follows:
- Except as otherwise provided in section 32-11-204, Idaho Code [for temporary emergency jurisdiction], a court of this state may not modify a child custody determination made by a court of another state unless a court of this state had jurisdiction to make an initial determination under section 32-11-201(a)(1) or (2), Idaho Code, and
- The court of the other state determines it no longer has exclusive, continuing jurisdiction under section 32-11-202, Idaho Code, or that a court of this state would be a more convenient forum under section 32-11-207, Idaho Code; or
- A court of this state or a court of the other state determines that the child, the child’s parents, and any person acting as a parent do not presently reside in the other state.
If John’s Tribe were a sister state within the United States, then the language of these two sections would conclusively support the claim that Tribal Court has exclusive, continuing jurisdiction over the parties’ tribal divorce action given the foregoing facts. A State Court would have no jurisdiction to modify the Tribal Court Decree. Although Jane has moved off the reservation, John and the children have continued to reside on the Reservation.
John and the children have a significant connection with the Reservation. Since John has been providing primary care for the children, there is substantial evidence available on the Reservation concerning the children’s care, protection, training, and personal relationships. To hold otherwise, the Tribal Court would have to determine it no longer has exclusive, continuing jurisdiction or that the State of Idaho would be a more convenient forum. Therefore, pursuant to the UCCJEA, the State of Idaho would have no jurisdiction to modify the Tribal Court Decree.
However, since no Idaho Tribe is a sister state, the issue becomes whether the provisions of the UCCJEA apply to the Tribal Court Decree. In deciding on the final language of the UCCJEA, the Idaho legislature chose not to include the model language proposed by the National Conference of Commissioners on Uniform State Laws that would have provided that “[a] court of this State shall treat a tribe as if it were a State of the United States for the purpose of applying [Articles] 1 and 2.”
Section 104 (Application to Indian Tribes) of the Uniform Child-Custody Jurisdiction and Enforcement Act (1997) was provided to each state for consideration in drafting their own state version of the UCCJEA[i]. Since the Idaho Legislature did not adopt this language, an Idaho State Court is not required to treat an Idaho Tribe as a sister state in applying Idaho’s UCCJEA modification provisions.
However, this does not mean that a state court cannot apply the public policy and purpose of the foregoing sections regarding continuing, exclusive jurisdiction and jurisdiction to modify in the instant case. Section 101 of the model Act recites the main purposes of the language proposed for each state’s UCCJEA as follows:
- Avoid jurisdictional competition and conflict with courts of other States in matters of child custody which have in the past resulted in the shifting of children from State to State with harmful effects on their well-being;
- Promote cooperation with the courts of other States to the end that a custody decree is rendered in that State which can best decide the case in the interest of the child;
- Discourage the use of the interstate system for continuing controversies over child custody;
- Deter abductions of children;
- Avoid relitigation of custody decisions of other States in this State;
- Facilitate the enforcement of custody decrees of other States;[ii]
Since John has filed his own Motion to Modify in Tribal Court, allowing Jane to proceed with her state court modification action could cause jurisdictional competition and conflict with the Tribal Court and have a harmful effect on the well-being of the children. The Tribal Court is arguably in the best position to decide the best interest of the children. If the State Court were to proceed to a state modification decree and John were to proceed to a tribal modification decree, there would be competing modification decrees that could result in competing enforcement of these decrees.
Further, Idaho’s UCCJEA clearly favors the “home state” of a child in making child custody decisions.[iii] The “home state” of a child is that state where the child last lived for at least six consecutive months immediately before the commencement of a child custody proceeding. Although an Idaho Tribe is not regarded as a sister state, it is to be treated as an independent sovereign nation.
Since the children have always lived on the Reservation, the Reservation by analogy has always been the “home state” of the children, and the State of Idaho has never been the “home state” of the child. The public policy favoring the “home state” to resolve child custody matters would, therefore, favor the state court declining jurisdiction to modify the Tribal Court Decree and insisting that any modification take place on the Reservation.
Comity, Self-Government, and Exhaustion of Tribal Court Remedies
Although an Idaho Tribe is not to be regarded as a state for the purpose of applying the UCCJEA, it is important to note the recognized tribal sovereignty of an Idaho Tribe. “The history of tribal self-government forms the basis for the exercise of modern powers. Indian tribes have consistently been recognized, first by the European Nations and later by the United States, as single ‘distinct, independent political communities’, qualified to exercise the power of self-government, not by virtue of any delegation of powers, but rather by reason of their original tribal sovereignty.”[iv]
“The tribes began their relationship with the federal government with the sovereign powers of independent nations. They came under the authority of the United States through treaties and agreements between tribes and the federal government and through the assertion of the authority by the United States. … But from the beginning, the United States permitted, then protected, continued internal tribal government. In doing so, the United States applied a general principle of international law to the particular situation of the Indians. The established tradition of tribal independence within a tribe’s territory has survived the admission of new states, citizenship of the Indians, and other changes in American life. Today courts consider the backdrop of tribal sovereignty in addressing federal Indian law issues.”[v]
Although in the early 1800’s the United State Supreme Court established the relationship between the federal government and the tribes as a guardian-ward relationship, that “did not abolish preexisting tribal powers or make the tribe dependent on federal law for their powers of self-government… Tribes remained states with powers of self-government, despite coming under federal power.”[vi] “Congressional legislation designed to establish cooperative programs with state and local governments has expressly included Indian tribes as participating governments…. Thus, Indian tribes are recognized by Congress as modern governments dealing with modern problems.”[vii]
“Most Indian nations operate their own court systems and, except to the extent demanded by the Indian Civil Rights Act, the structure and procedure of the courts may be determined by the tribes themselves…. Tribal courts’ jurisdiction to adjudicate matters arising in Indian counties is broad, encompassing all civil and criminal matters absent limitations imposed by lawful federal authority. In that sense, tribal courts are more like state courts of general jurisdiction than like federal courts.” [viii]
One accommodation to the relation between Tribal Courts and State Courts was Public Law 280.[ix] In 1953, Congress enacted this statute that delegated to initially five states and then to any other state the option of accepting jurisdiction over most crimes and many civil matters. With tribal consent, Idaho accepted jurisdiction over seven subject areas, including domestic relations, which is codified at Idaho Code § 67-5101-5103 et. seq.
“…, [T]he primary purpose of Public Law 280 was to improve law enforcement within Indian country, which suggests that Congress would not want to eliminate any functioning or potentially effective criminal jurisdiction. Federal policy since the passage of Public Law 208 has only reinforced this reading of congressional intent, as Congress has weighed in heavily in favor to tribal self-government and tribal court development.”[x] “The consensus about concurrent tribal and state jurisdiction under Public Law 280 has developed relatively recently, leaving both sets of courts and law enforcement officers with the task of developing principles of coexistence and comity. In criminal cases, the Double Jeopardy Clauses of the Constitution and the Indian Civil Rights Act permits multiple prosecutions so long as the prosecutions are carried out by separate sovereigns. The Supreme Court has held that Indian nations are separate from the federal government for this purpose, and the same reasoning dictates that Indian nations are separate sovereigns from the state.”[xi]
“In civil cases, concurrent tribal and state jurisdiction under Public Law 280 leads to the possibility of each disputant racing to litigate in the forum of choice. Public Law 280 does not give state courts the power to restrict the exercise of tribal jurisdiction even when the first litigant to file chooses state court. If each sovereign is under some obligation to respect the judgments of the other, then the first forum to reach a judgment will determine the outcome, regardless of the duration or extent of completion of the parallel proceeding. If the sovereigns do not view themselves as under any compulsions to respect one another’s judgments, the litigants may be subjected to conflicting and mutually inconsistent orders.”[xii] The principle of comity would, therefore, urge a state to recognize and respect John’s modification action in Tribal Court over Jane’s action in State Court.”[xiii]
“Judge-made doctrine may also function to limit conflicts. One valuable source of guidance is the doctrine of exhaustion of tribal remedies that has been crafted by the Supreme Court for situations in which Indian nations and the United States share authority over the same matters. According to this doctrine of comity, federal courts will normally decline to invoke their federal question or diversity jurisdiction until the litigants have presented the issues and obtained a resolution from the tribal court system. Some legal issues, such as the extent of tribal jurisdiction, will remain for possible relitigation in federal court; even then, the federal court will grant some deference to the tribal court’s underlying findings of fact.”[xiv]
“ The federal exhaustion doctrine is designed to avoid interference with Indian nations’ self-government and to afford federal courts the benefits of tribal consideration of matters within the tribes’ realm of special expertise. Arguably, this doctrine embodies a federal common law of deference to tribal courts that binds state and federal courts. Even if the doctrine in not binding on state courts as a matter of federal common law, however, the same considerations of comity and efficiency that animate the federal exhaustion doctrine counsel in favor of state courts establishing an identical rule of deference.”[xv]
“A growing number of state courts have embraced such an exhaustion doctrine, requiring plaintiffs to bring their claims to tribal court even though the state may possess concurrent jurisdiction under Public law 280. Most of the state cases exemplifying this development have involved suits against tribal entities or officers, with attendant issues of sovereign immunity and privilege. Exhaustion in the name of respect for the tribal self-government is particularly appropriate in these cases. But just as the federal exhaustion doctrine has been applied to private lawsuits, so arguably should state exhaustion doctrine. Respect for an Indian nation’s power of self-government implies that the tribe should have primary responsibility for activities that occur within its boundaries, and therefore a state court possessing concurrent jurisdiction under Public Law 280 should stay its hand pending exhaustion of tribal remedies….Given the Indian law canons of construction, and the subsequent development of congressional policies favoring tribal self-determination and tribal courts, it is proper to read public law 280 as incorporating a state exhaustion requirement where tribal courts exist.”[xvi]
The Idaho Supreme Court has held that “tribal court judgments are entitled to recognition and enforcement under principles of comity.”[xvii] The policy of the Idaho judiciary is to maintain a “good working relationship between state and tribal courts.”[xviii] Although the Idaho Supreme Court has not expressly held that the doctrine of exhaustion of tribal remedies applies in Idaho, it should arguably so hold under the foregoing facts because the requirement that a party exhaust tribal remedies is a logical counterpart to the doctrine of comity.[xix]
More Convenient Forum
Idaho’s UCCJEA at Idaho Code § 32-11-207 allows for a state court to decline to exercise its jurisdiction to modify if it finds that another forum is a more convenient forum for determination of child custody. Idaho Code § 31-11-207(b) sets forth the factors a court shall consider in doing so, such as: whether domestic violence has occurred, the length of time the child has resided out of state, the financial circumstances of the parties, any prior agreement regarding jurisdiction, the nature and location of evidence including testimony, the ability of each court to decide the issue expeditiously and procedures used, and the familiarity of each court with the facts and issues presented. A Tribal Law and Order Code may have a similar provision.
Moreover, the Tribal Court pursuant to its own Tribal Code may have a provision for continuing, exclusive jurisdiction, and therefore have exclusive jurisdiction to modify its prior Decree. If so, it would be for the Tribal Court to decide whether it is a more convenient forum than State Court.
There is a strong public policy that favors modifying the Tribal Court Decree in Tribal Court on John’s Reservation, where John and the children have always resided. The reservation is in effect “the home state” of the children. Although it is not required to do so, the State Court should regard the Tribal Court as having continuing, exclusive jurisdiction to modify John’s Decree of Divorce. Comity and a strong public policy of deference to tribal self-government and requiring Jane to exhaust her custody remedies in Tribal Court favor dismissing the State Court modification action of Jane and requiring her to pursue such a modification action in Tribal Court, where John has filed his modification action. Court decisions or legislative action may, in the future, provide more certainty regarding Idaho’s jurisdictional provisions and their application to Tribal Courts.
[i] Uniform Child Custody Jurisdiction and Enforcement Act (1997), National Conference of Commissioners on Uniform State Laws. Article 1 contains the General Provisions, and Article 2 pertains to Jurisdiction. Section 104
(Application to Indian Tribes) reads: “a) A child-custody proceeding that pertains to an Indian child as defined in the Indian Child Welfare Act, 25 U.S.C. §1901 et seq., is not subject to this [Act] to the extent that it is governed by the Indian Child Welfare Act. [(b) A court of this State shall treat a tribe as if it were a State of the United States for the purpose of applying [Articles] 1 and 2.] [(c) A child-custody determination made by a tribe under factual circumstances in substantial conformity with the jurisdictional standards of this [Act] must be recognized and enforced under [Article] 3.]” The Idaho Legislature only adopted subparagraph (a) of Section 104, which is now found at Idaho Code §32-11-104.
[ii] Id., [Article] 1, Section 101.
[iii] Idaho Code § 32-11-201.
[iv] Cohen’s Handbook of Federal Indian law (2005 edition, Lexis Nexis, Matthew Bender) at 205. The author has chosen to quote from Cohen’s Handbook more extensively than might seem called for because of the importance of tracing the orgin and development of tribal sovereignty in sufficient detail to underscore the policy position that author will advocate in this article.
[v] Id. at 206.
[vi] Id. at 208.
[vii] Id. at 211.
[viii] Id. at 217.
[ix] Act of Aug. 15, 1953, 67 Stat. 58 (codified as amended at 18 U.S.C. § 1162, 25 U.S.C. §§ 1321-1326, 28 U.S.C. §§ 1360, 1360 note).
[x] Cohen at 561.
[xi] Id. at 562.
[xii] Id. at 563-564.
[xiii] See Teague v. Bad River Band of the Lake Superior Chippewa Indians, 612 N.W. 2d 709720 (Wis. 2000). (when faced with conflicting tribal and state court judgments, the Wisconsin Supreme Court invoked the doctrine of comity and found the State court should respect the tribal judgment).
[xiv] Cohen at 564.
[xv] Id. at 564-565.
[xvi] Id. at 565.
[xvii] Coeur d’ Alene Tribe v. Johnson, 162 Idaho 754, 759, 405 P.3d 12 (2017).
[xviii] See Sheppard v. Sheppard, 104 Idaho 1, 8, 655 P. 2d 895, 902 (1982); see also Idaho tribal-State Court Bench Book at 1(2014 ed). (https://isc.idaho.gov/tribal-statetribal-benchbook).
[xix] See Nat’l Farmers Union Ins. Companies v. Crow Tribe of Indians, 471 U.S. 845, 856-57 (1985) (“[P]olicy of supporting tribal self-government and self-determination…favors a rule that will provide the forum whose jurisdiction is being challenged the first opportunity to evaluate the factual and legal bases for the challenge.”); Strate v. A-1 Contractors, 520 U.S. 438, 56 (1997) (“[E]xhaustion requirement [is] a prudential rule based on comity.” (internal citations and punctuation omitted)).
Fred G. Zundel is an attorney in the Pocatello Office of Idaho Legal Aid Services. He received his law degree from the J. Reuben Clark Law School at Brigham Young University and his B.A. from the University of California at Davis. He is currently a member of the Bannock County Sexual Assault and Domestic Violence Task Force and serves as an at-large member of the Idaho State Bar’s Family Law Section. He is licensed to practice law on the Shoshone-Bannock Reservation.