I monitored 190 hearings this quarter. Twenty-two (12%) were out of compliance with the Indian Child Welfare Act (ICWA). Twenty of the hearings monitored were hold hearings.

Twenty-four children were found to be children in need of protection and services. Each of the CHIPS findings entered was the result of a settlement. CHIPS jurisdiction over 26 children who had previously been reunified with a parent or prior legal custodian was dismissed by the Court. A transfer of legal custody to a relative was ordered for 11 children. Four children were ordered into long-term foster care. Six children who had been in placement were reunified this quarter with a parent or previous legal custodian. The Court terminated the parental rights of nine parents. Four terminations of parental rights were the result of settlements; five resulted from defaults. Eighteen of the hearings were continued without a hearing.

The Court granted two motions brought by tribes to intervene. The
Court granted one motion brought by a tribe to transfer jurisdiction to tribal court.

ICWA requires notice of the proceeding to be sent by registered mail, return receipt requested, to the parents or the Indian custodian, and the children’s tribe. Three hearings monitored violated the notice requirements of ICWA.

This was an arraignment on a termination of parental rights petition heard on January 20, 2000, before Judge Lefler. The Hennepin County Department of Children and Family Services (DCFS) used notice by publication to obtain a default termination finding against the father.

This was an arraignment on a educational neglect petition scheduled for February 23, 2000, before Judge Alexander. The tribe had not been given notice of the proceedings. The matter was continued without a hearing to allow for proper notice to the tribe.

This was an arraignment on a termination of parental rights petition heard on March 27, 2000, before Judge Blaeser. DCFS used notice by publication to obtain a default termination finding against the mother.

ICWA gives parents the right to counsel in the proceeding. The Court may also appoint counsel for a child. There were five instances where counsel for a party failed to appear at a hearing.

This was a CHIPS review hearing heard on January 20, 2000, before Judge Lefler. Mother’s attorney was out sick and no one was there to cover the hearing. The mother waived her right to have her attorney present. DCFS recommended dismissal of the proceedings which was granted by the Court.

This was a CHIPS arraignment heard on January 27, 2000, before Judge Lefler. The child’s attorney failed to appear for the hearing. The child waived her right to have an attorney present and the Court accepted admissions from the mother.

This was a TPR arraignment heard on February 7, 2000, before Judge Reilly. Counsel for the father failed to appear. Counsel had been appointed at the last hearing, but no attorney was present to represent the father.

This was a CHIPS review hearing heard on February 28, 2000, before Judge Lefler. The attorney for the father was unable to make it for the hearing. The father’s attorney had called the county attorney to say he could not make the hearing. DCFS recommended dismissal of court jurisdiction. The father waived his right to counsel and the Court granted the dismissal.

This was a review hearing on a CHIPS petition heard on March 27, 2000, before Judge Lefler. Counsel for the child failed to appear for the hearing. The child was also not present.

ICWA requires the testimony of a qualified expert witness to support an out of home placement. The testimony must be provided within 90 days after an emergency removal. The testimony is also required before the Court can order termination of parental rights. There were eight hearings where live testimony was presented to fulfill the expert witness requirement. The County Attorney’s office filed with the Court 33 affidavits from tribal representatives to satisfy the expert witness requirement of ICWA.

Ten hearings violated the expert witness requirement of ICWA.

This was a CHIPS review hearing heard on January 10, 2000, before Judge Lefler. Two children had been in placement five months with no expert testimony to support the placement. DCFS was making arrangements to have a tribal representative brought in to provide the testimony. At the next review hearing heard on February 2, 2000, there was still no expert testimony provided to the Court. An affidavit of expert testimony was filed with the Court on February 15, 2000.

This was a CHIPS review hearing heard on January 11, 2000, before Judge Lefler. Two children had been in placement five months with no expert testimony to support the placement. The children’s tribe had not yet responded to requests regarding the children’s eligibility for membership. The Court continued the placement of the children. An affidavit of expert testimony from the tribe was filed with the Court on February 16, 2000.

This was a CHIPS settlement heard on January 18, 2000, before Judge Lefler. Three children had been in placement seven months with no expert testimony to support the placement. By the next review hearing heard on March 23, 2000, the children had been in placement almost ten months with no expert testimony. The children’s tribe had not responded to requests regarding the children’s eligibility for membership. The Court continued the placement of the children.

This was a CHIPS arraignment heard on February 8, 2000, before Judge Blaeser. The child had been in placement for four months without expert testimony. The mother brought a motion to invalidate the proceedings based upon the expert witness requirement violation. The Court returned the child to the mother and ordered the matter to be dismissed once mother connected up with tribal social services.

This was a permanency arraignment scheduled for February 22, 2000, before Judge Reilly. Three children had been in placement nearly 10 months without expert testimony to support the placement. The tribal representative who was present for the hearing agreed to provide an affidavit of expert testimony.

This was a CHIPS review hearing heard on February 29, 2000, before Judge Lefler. Three children had been in placement over four months with no expert testimony. The children’s tribe had not yet determined whether the children were eligible for membership. An affidavit of expert testimony from the tribe was filed with the Court on March 15, 2000.

This was a CHIPS review hearing heard on March 20, 2000, before Judge Lefler. Three children had been in placement over four months with no expert testimony. The children’s tribe had not yet determined whether the children were eligible for membership.

This was a CHIPS review hearing scheduled for March 22, 2000, before Judge Lefler. Two children had been in placement five months with no expert testimony to support the placement. The father was in the process of submitting documentation to the tribe so that the tribe may determine eligibility.

ICWA requires placement of a child in the least restrictive setting which most approximates a family. ICWA also provides that when a child is removed from one foster care placement and placed in another placement the provisions of ICWA apply to the change in placement. One hearing violated these placement provisions of ICWA.

This was a long-term foster care review hearing heard on March 21, 2000, before Judge Schellhas. One child was moved from an Indian foster home to a non-Indian group home without written approval from the tribe. A sibling was removed from an Indian foster home and placed in shelter for approximately two months without the Court being notified of the change in placement.

ICWA dictates the standard of proof for CHIPS is clear and convincing evidence. The standard of proof for termination of parental rights is beyond a reasonable doubt. In one hearing monitored the wrong standard of proof was applied.

This was a TPR settlement hearing heard on March 8, 2000, before Judge Schellhas. The Court found the basis for the termination had been proven by clear and convincing evidence rather than proof beyond a reasonable doubt.

One hearing violated a parent’s right to due process.

This was a CHIPS review hearing heard on March 13, 2000, before Judge Blaeser. Four of the mother’s children who were the subject of this matter were in out of home placement. A fifth child who had been living with the grandmother was not the subject of this proceeding. However, the child was now living with the mother. The Court, on its own motion, issued an order placing this child out of the home without any proceeding having been commenced regarding this child.

One other hearing is worth mentioning here.

This was a long-term foster care review hearing heard on February 2, 2000, before Judge Schellhas. The child was difficult to place because the DCFS worker believed the child had been a sexual perpetrator on younger children. The Court pointed out, however, that there was nothing in the court file to support such an allegation. The Court instructed the worker to stop referring to the child as having a history of sexual acting out with younger children when exploring placement resources.

The court hearings involved a total of 292 children. Forty-three of the children were enrolled members and 245 were eligible for membership. Four of the children were not eligible for enrollment; however, I do not know if these children are eligible for membership in their tribes. The number of hearings, by the child’s tribal affiliation, is as follows:

The placements of the children were as follows: 68 of the children were either returned home or remained at home under protective supervision; 92 children were placed with relatives; 78 children were placed in Indian foster care; 6 children were placed in non-Indian foster homes with the approval of the children’s tribe; two children were placed in a non-Indian foster home at the request of the mother; two children were placed in a non-Indian foster home because DCFS originally thought the case was a non-ICWA case; 19 children were in emergency shelter placement; five were in group homes; ten were in residential treatment centers; five children were in the hospital; two children were ordered to remain in detention pending further hearings regarding their placement; and the whereabouts of three children were unknown at the time of the hearing.

Mothers of the children were present at 102 of the hearings. There were a total of 51 fathers present at the hearings. Guardians ad litem were present at 18 of the hearings. Tribal representatives were present at 80 of the hearings. Minneapolis American Indian Center advocates were present at 58 of the hearings. Advocates from other community agencies were present at 19 of the hearings. There were 45 hearings where no tribal representative or Indian advocate was present.

Prepared by:

Paul T. Minehart

ICWA Court Monitor