Indian Child Welfare Court Monitor
Quarterly Report  
January, February & March, 2004

I monitored 137 hearings this quarter.  Seven (5%) were out of compliance with the Indian Child Welfare Act (ICWA).   Nineteen of the hearings monitored were hold hearings.

            Twenty children were found to be children in need of protection and services.  Sixteen of the CHIPS findings entered were the result of settlements; four resulted from defaults.  CHIPS jurisdiction over nine children who had 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 fourteen children.  Six children were ordered into long-term foster care.  Thirteen children who had been in placement were reunified this quarter with a parent or previous legal custodian.  The Court terminated the parental rights of eight parents.  Four terminations of parental rights were the result of settlements; two resulted from defaults; and two resulted from contested hearings.  Six of the hearings were rescheduled without a hearing being held.

            The Court granted three motions to transfer jurisdiction to tribal court.  The Court denied one motion to transfer to tribal court based upon the motion being untimely.

            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.  One hearing monitored violated the notice requirements of ICWA.

• This was a CHIPS admit deny hearing heard on March 4, 2004, before Judge Graham.  No notice by registered mail of the petition had been provided to the tribe.  The tribe did have knowledge of the proceedings and a tribal representative was present for the hearing. 

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

• This was a TPR admit deny hearing heard on January 8, 2004, before Judge Reilly.  The attorney for the father failed to appear for the hearing.  The Court entered a denial to the petition on behalf of the father and set the matter for a pretrial. 

• This was a CHIPS admit deny hearing heard on February 11, 2004, before Judge Reilly.  The attorney for the child failed to appear for the hearing.  At the pretrial heard on March 9, 2004, the attorney also failed to appear.  At issue was the child’s behavior in school. 

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

Two hearings violated the expert witness requirement of ICWA. 

• This was a CHIPS review hearing heard on January 21, 2004, before Judge Lefler.  One child had been in placement over five months with no expert testimony to support the placement.

• This was a TPR pretrial settlement hearing heard on March 11, 2004, before Judge Lefler.  The TPR petition was amended to a CHIPS petition and a CHIPS finding was made.  The child had been in placement seven months with no expert testimony to support the placement.  The mother made a motion for immediate reunification of the child.  The Court continued placement of the child and stayed the CHIPS adjudication pending the expert testimony. 

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

• This was continued emergency protective care hearing heard on March 15, 2004, before Judge Graham.  At an earlier initial hearing, the CFASD was ordered to pursue emergency licensing of relatives in order to avoid the child going into shelter.  At this hearing the CFASD had not done the steps to get an emergency license in place.  The child was ordered into shelter. 

            The court hearings involved a total of 230 children.  Twenty-eight of the children were enrolled members and 202 were eligible for membership.  The number of hearings,

by the child’s tribal affiliation, is as follows:

  The placements of the children were as follows:  fifty-eight of the children were either returned home or remained at home under protective supervision; sixty-four children were placed with relatives; fifty-nine children were placed in Indian foster care; nine 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 without the approval of the child’s tribe; nineteen children were in emergency shelter placement; twelve were in group homes; five were in residential treatment centers; five children were in the hospital; one child was ordered to remain in detention pending further hearings regarding placement; and the whereabouts of three children were unknown at the time of the hearing. 

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

Prepared by:

Paul T. Minehart

ICWA Court Monitor