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Whirlwind v. Taplin

United States District Court, D. Oregon, Portland Division

February 20, 2015



MICHAEL W. MOSMAN, District Judge.

Defendants Carmen Taplin and Christine Krisky[1] move for summary judgment and ask that Plaintiff Leegabe Little Whirlwind's claims be dismissed with prejudice for failure to state a claim upon which relief can be granted. Because Mr. Little Whirlwind fails to present evidence that would support a rational finding that Defendants violated the Indian Child Welfare Act ("ICWA"), I grant Defendants' motion.


Mr. Little Whirlwind is a prisoner in the custody of the Oregon Department of Corrections. While Mr. Little Whirlwind was in prison, his 2-year-old daughter, S.L.W., was in a car accident with her mother, Joy Deann Allen. Ms. Allen was charged with reckless driving, endangering another person, fourth-degree assault, driving without a license, and unlawful possession of a controlled substance. Although the timing is unclear, Mr. Little Whirlwind alleges that Ms. Allen was subsequently incarcerated.

Mr. Little Whirlwind further alleges that following the car accident, Ms. Taplin, who works as a Social Service Specialist for the Oregon Department of Human Services ("ODHS"), placed S.L.W. in foster care with Ms. Allen's extended family. Mr. Little Whirlwind alleges that Defendants failed to notify him or the Northern Cheyenne Tribe of this placement. Ms. Taplin and Ms. Krisky, who also works as a Social Service Specialist for ODHS, both deny that ODHS ever placed S.L.W. in any form of foster care.

Legal Standard

Summary judgment is proper "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). Materiality depends on the substantive law and is determined by looking to whether the fact "might affect the outcome of the suit." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The initial burden for a motion for summary judgment is on the moving party to identify the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once that burden is satisfied, the burden shifts to the nonmoving party to demonstrate, through the production of evidence listed in Fed.R.Civ.P. 56(c)(1) that there remains a "genuine issue for trial." Celotex, 477 U.S. at 324. The non-moving party may not rely upon the pleading allegations. Brinson v. Linda Rose Joint Venture, 53 F.3d 1044, 1049 (9th Cir. 1995) (citing Fed. R. Civ. P 56(e)). All reasonable doubts and inferences to be drawn from the facts are to be viewed in the light most favorable to the non-moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).


I. Mr. Little Whirlwind's Claim

It is unclear from Mr. Little Whirlwind's complaint what discrete right he alleges Defendants violated. Therefore, before getting to Defendants' Motion for Summary Judgment, it is important to identify Mr. Little Whirlwind's precise legal claim.

Mr. Little Whirlwind brings his claims under 42 U.S.C. § 1983 and the Child Custody Proceedings Subchapter of ICWA, generally. Within the Child Custody Proceedings Subchapter, the only section concerning rights of notification is 25 U.S.C. § 1912(a). Section 1912(a) mandates that "the party seeking the foster care placement of... an Indian child [through involuntary state court proceedings] shall notify the parent or Indian custodian and the Indian child's tribe." 25 U.S.C. § 1912(a) (2014); see Navajo Nation v. Superior Court of State of Wash. for Yakima Cnty., 47 F.Supp.2d 1233, 1238 (E.D. Wash. 1999) (explaining that the notice required under § 1912 is the only notice expressly required by ICWA) aff'd sub nom. Navajo Nation v. Confederated Tribes & Bands of the Yakama Indian Nation, 331 F.3d 1041 (9th Cir. 2003). Furthermore, ICWA defines "foster care placement" as

any action removing an Indian child from its parent or Indian custodian for temporary placement in a foster home or institution or the home of a guardian or conservator where the parent or Indian custodian cannot have the child returned upon demand, but where parental rights have not been terminated.

25 U.S.C. § 1903 (2014). Accordingly, if Defendants placed Mr. Little Whirlwind's daughter in the care of Ms. Allen's family while Ms. Allen was incarcerated-stripping her ability to have her child returned to her on demand-Defendants' actions qualify as "foster care placement." If Defendants sought to achieve this end through involuntary state court proceedings, they had an obligation to notify Mr. Little Whirlwind or the Northern Cheyenne Tribe. Consequently, Mr. Little Whirlwind's present legal claims can best be interpreted as an allegation that Defendants ...

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