I monitored 153 hearings this quarter. Sixteen (10%) were out of compliance with the Indian Child Welfare Act (ICWA). Nineteen of the hearings monitored were hold hearings.

Twenty-five children were found to be children in need of protection and

services (CHIPS). Twenty-one of the CHIPS findings entered were the result of settlements; four resulted from defaults. Twelve children who had been in placement were reunified with their parent. CHIPS jurisdiction over four 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 six children. One child was ordered into long-term foster care. The Court terminated the parental rights of four parents. One termination of parental rights was the result of a settlement; three resulted from defaults. There were 21 instances where the matter was continued without having a hearing.

The Court denied one motion to transfer jurisdiction to tribal court brought by a father because the mother objected to the motion.

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

This was a CHIPS review hearing heard on January 24, 2001, before Judge Blaeser. The attorney for the child failed to appear. The child waived his right to an attorney. The parties were recommending dismissal of CHIPS jurisdiction. The Court dismissed the matter.

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 three hearings where live testimony was presented to fulfill the expert witness requirement. The County Attorney’s office filed with the Court 9 affidavits from tribal representatives to satisfy the expert witness requirement of ICWA.

Eleven hearings violated the expert witness requirement of ICWA.

This was a TPR arraignment set for January 3, 2001, before Judge Blaeser. Two children had been in placement 10 months with no expert testimony to support the placement. An affidavit of expert testimony was filed with the Court on February 6, 2001.

This was a TPR arraignment heard on January 9, 2001, before Judge Blaeser. Two children had been in placement five months with no expert testimony to support the placement. The tribe had sent a letter to the Court indicating its support of continued placement. Mother was not present at the hearing. The Court continued the placement of the children.

This was a CHIPS review hearing heard on January 11, 2001, before Judge Lefler. The child had been in placement four months with no expert testimony to support the placement. The tribe was aware of the placement and supportive of the placement, but no testimony had been provided. An affidavit of expert testimony was filed with the Court on February 27, 2001.

This was a TPR pretrial heard on January 16, 2001, before Judge Blaeser. Two children had been in placement over one year with no expert testimony to support the placement. The tribe originally determined that the children were not eligible for membership; however, membership guidelines changed so the tribe is again determining membership of the children under the current membership guidelines. At a continued pretrial on March 1, 2001, there was still not a clear response from the tribe on whether it considered this proceeding to be governed by ICWA.

This was a CHIPS pretrial heard on January 29, 2001, before Judge Reilly. One child had been in placement four months with no expert testimony to support the placement. The child’s tribe had indicated to the Department of Children and Family Services (DCFS) worker that it supports the placement, but no testimony had been provided to the Court.

This was a CHIPS review hearing heard on February 12, 2001, before Judge Lefler. Two children had been on placement six months with no expert testimony to support the placement. The tribe had verbally responded that the children were not eligible for membership, but not responded in writing with its determination.

This was a CHIPS permanency hearing heard on February 20, 2001, before Judge Blaeser. The child had been in placement six months with no expert testimony to support the placement. The Court ordered a transfer of legal custody to the grandmother, but stayed the order pending receipt of expert testimony from the tribe.

This was TPR pretrial heard on March 6, 2001, before Judge Blaeser. One child had been in placement 3½ with no expert testimony to support the placement. The testimony was presented at this hearing.

This was a CHIPS pretrial heard on March 20, 2001, before Judge Lefler. Two children had been in placement six months with no expert testimony to support the placement.

This was a review hearing heard on March 27, 2001, before Judge Blaeser. The children had been in placement seven months with no expert testimony to support the placement. The tribe had intervened in the proceedings, but no testimony had been provided to the court.

This was a pretrial hearing on a transfer of legal custody petition heard on March 28, 2001, before Judge Lefler. Four children had been in placement six months with no expert testimony to support the placement. The county attorney had requested the testimony, but none had been received to date.

ICWA requires county agencies to use active efforts to provide remedial services and programs designed to prevent the breakup of the family. Two hearings violated the active efforts requirement of ICWA.

This was a long term foster care review hearing set for January 9, 2001, before Judge Blaeser. The DCFS worker who was bringing the child to the hearing did not appear for the hearing; consequently, the child was not brought to the hearing. At issue was the placement of the child who was currently in shelter.

This was a CHIPS hearing heard on January 17, 2001, before Judge Lefler. The DCFS worker refused to provide reunification services stating that the matter was going to permanency. However, the only pleading before the Court was a CHIPS petition filed December 20, 2000.

ICWA specifies placement preferences for the out of home placement of children. 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 the placement preferences of ICWA.

This was an adoption pretrial hearing heard on March 19, 2001, before Judge Lefler. One child was in a non-Indian foster home without the approval of the tribe. The Court authorized moving the child to a tribally identified home.

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

This was TPR pretrial heard on March 6, 2001, before Judge Blaeser. The child had been moved from its court ordered relative placement to a non-Indian preadoptive placement on the recommendation of the tribe without the knowledge of the Court or any notice to the mother.

The court hearings involved a total of 258 children. Forty-nine of the children were enrolled members and 206 were eligible for membership. Three 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: 82 of the children were either returned home or remained at home under protective supervision; 70 children were placed with relatives; 62 children were placed in Indian foster care; four children were placed in non-Indian foster homes with the approval of the children’s tribe; one child was placed in a non-Indian foster home at the request of the mother; two children were placed in a non-Indian foster home because the tribe had originally responded that the children were not eligible for membership, however, the tribe is considering the eligibility of the children again under new membership guidelines; 16 children were in emergency shelter placement; three were in group homes; 14 were in residential treatment centers; two children were ordered to remain in detention pending further hearings regarding their placement; and the whereabouts of two children were unknown at the time of the hearing.

Mothers of the children were present at 95 of the hearings. There were a total of 40 fathers present at the hearings. Guardians ad litem were present at six of the hearings. Tribal representatives were present at 72 of the hearings. Minneapolis American Indian Center advocates were present at 25 of the hearings. Advocates from other community agencies were present at 15 of the hearings. There were 50 hearings where no tribal representative or Indian advocate was present.

Prepared by:

Paul T. Minehart

ICWA Court Monitor