I monitored 116 hearings this quarter. Eleven (9%) were out of compliance with the Indian Child Welfare Act (ICWA). Sixteen of the hearings monitored were hold hearings.

Twenty-nine children were found to be children in need of protection and services. Twenty-four of the CHIPS findings entered were the result of settlements, five of the findings resulted from defaults. CHIPS jurisdiction over eight 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 four children. One child was ordered into long-term foster care. Nine children who had been in placement were reunified this quarter with a parent or previous legal custodian. The Court terminated the parental rights of four parents. Two terminations of parental rights were the result of settlements; two resulted from defaults. Six of the hearings were continued without a hearing.

The Court granted one motion brought by a tribe to transfer jurisdiction to tribal court. The Court denied a second motion brought by a tribe to transfer jurisdiction to tribal court based upon a finding of good cause. The Court took under advisement a third motion brought by a tribe to transfer jurisdiction to tribal court.

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

This was a CHIPS review hearing heard on January 13, 2003, before Judge Lefler. The attorney for the mother failed to appear at the hearing. The mother was present and agreed to go ahead without her attorney.

This was a hold hearing heard on January 23, 2003, before Judge Lefler. The father was present and requested an attorney, but there was no one from the public defender’s office available to represent him. The father was present at the admit deny hearing heard on March 3, 2003, where again no attorney appeared on behalf.

This was a TPR pretrial heard on February 6, 2003, before Judge Lefler. Mother’s attorney failed to appear for the hearing. The mother was not present.

This was a settlement of a transfer of legal custody petition heard on February 12, 2003, before Judge Lefler. Father’s attorney failed to appear for the hearing. Father waived his right to his attorney.

This was a hold hearing heard on March 31, 2003, before Judge Lefler. An eleven year old child requested an attorney, but no attorney was available at the time of the hearing. The Court ordered the child into placement.

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

Five hearings violated the expert witness requirement of ICWA.

This was a CHIPS pretrial heard on January 8, 2003, before Judge Reilly. One child had been in placement five months with no expert testimony to support the placement. The tribal representative was present at the hearing and supportive of continued placement of the child.

This was a CHIPS review hearing heard on February 11, 2003, before Judge Lefler. One child had been in placement seven months with no expert testimony to support the placement.

This was a TPR pretrial heard on February 24, 2003, before Judge Reilly. One child had been in placement just over 90 days with no expert testimony to support the placement. The tribe was aware of and supportive of the placement.

This was a CHIPS trial heard on March 6, 2003, before Judge Reilly. One child had been in placement over 5 months with no expert testimony to support the placement. The tribe was aware of and supportive of the placement, but no testimony had been provided to the court. The mother brought a motion to invalidate the proceedings. The Court denied the motion and continued the placement of the child.

One other hearing is worth mentioning here.

This was a CHIPS pretrial settlement heard on March 13, 2003, before Judge Lefler. A tribal court had issued an order transferring legal custody of the child although the child is apparently enrolled in a different tribe. Now this CHIPS petition is against the legal custodian. The county had not checked with the tribal court which ordered the transfer of legal custody regarding whether it considered this child to be a ward of tribal court. If the child were a ward of tribal court than that tribal court would have exclusive jurisdiction over the child. The Court made a CHIPS finding, but stayed the finding pending receipt of expert testimony and verification of the status of the child.

The court hearings involved a total of 198 children. Twenty-three of the children were enrolled members and 170 were eligible for membership. Five 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: fifty-six of the children were either returned home or remained at home under protective supervision; fifty-five children were placed with relatives; fifty-six children were placed in Indian foster care; three 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 originally with the approval of the tribe, but the tribe no longer supports the placement, nine children were in emergency shelter placement; six were in group homes; nine were in residential treatment centers; one child was in the hospital, and the whereabouts of one child was unknown at the time of the hearing.

Mothers of the children were present at eighty-three of the hearings. There were a total of forty-seven fathers present at the hearings. Guardians ad litem were present at ninety-one of the hearings. Tribal representatives were present at fifty of the hearings. Minneapolis American Indian Center advocates were present at thirty-one of the hearings. Advocates from other community agencies were present at five of the hearings. There were thirty-four hearings where no tribal representative or Indian advocate was present.

Prepared by:

Paul T. Minehart

ICWA Court Monitor