I won’t lie, guys, I had to read this one multiple times to figure out what was going on. Essentially the Montana legislature passed a law without understanding the difference between hearings that fall under 1912(a) and 1922. 1912 governs foster care proceedings and requires notice, active efforts, qualified expert witness testimony, etc. 1922 governs emergency proceedings (1922 has language that all states essentially read out of the statute to achieve this jurisdiction, which only makes sense to ICWA practitioners and no one else). Emergency proceedings do not require notice and the other 1912 protections, but it has a higher standard for removal (imminent physical damage or harm). The Montana statute denied parents of Indian children a faster emergency hearing because of the belief that 1912 standards (specifically notice) had to be hit before there could be a reason. The Court overturned this language.
Also interesting is the issue of trying to appeal proceedings that are emergency/shelter care/24 hour/48 hour/preliminary hearings in child protection proceedings. There’s often not a final order coming out of those hearings, and no way for a parent or tribe to appeal an emergency decision (this was an issue in the In re Z.J.G. case in Washington as well). Here, the District Court argued there was no way for the appellate court to hear the case because of the nature of the hearings.
Finally, the District Court argues this matter does not meet the threshold criteria for a writ of supervisory control because no urgent or emergency factors make appeal an inadequate remedy. The court alleges that in this case, it was later determined that O.F. is not an Indian child, and A.J.B. and O.F. have been “conditionally reunited.” However, as A.J.B. asserts in her petition, she does not appear to have any remedy on appeal for the denial of her right to an EPS [emergency] hearing, and the potentially erroneous loss of the right to parent, even for a short time, is a matter of great urgency.
Here the appellate Court heard the case anyway and overturned the statute.
Of course, you may also remember the federal case in South Dakota attempting to remedy emergency hearing practices there in ICWA cases that was dismissed on appeal because the federal court stated there were Younger abstention issues.
