Indian Child Welfare Court Monitor

Quarterly Report

January, February & March 2005

I monitored 152 hearings this quarter.  Eleven (7 %) were out of compliance with the Indian Child Welfare Act (ICWA).   Twelve of the hearings monitored were hold hearings.

            Thirty-seven children (involving twenty-one hearings) were found to be children in need of protection and services.  Twenty-two of the CHIPS findings entered were the result of settlements (twelve hearings); eight resulted from default findings (seven hearings); and seven resulted from trial (two hearings).  CHIPS jurisdiction over eight children (five hearings) who had previously been reunified with a parent or prior legal custodian was dismissed by the Court.  Fifteen hearings (thirty-eight children) involved transfer of legal custody proceedings.  Twenty-seven hearings (sixty-seven children) involved long-term foster care.  Four children (three hearings) 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.  One termination of parental rights was the result of a settlement; three resulted from defaults.  One of the hearings was rescheduled without a hearing being held.

            There were six motions to transfer the proceedings to Tribal Court this quarter. The Court granted four motions; one motion is pending, and a Tribe denied to accept jurisdiction regarding one motion.

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.  No foster care placement or termination of parental rights proceeding shall be held until at least ten days after the notice is received by the parents or the Indian custodian, and the children’s tribe.  Five hearings monitored violated the notice requirements of ICWA.

• This was a hearing heard on February 4, 2005, before Judge Quaintance.  ICWA requires notice to be sent by registered mail yet notice upon the father was provided by publication. The County and the Tribe were performing a kinship study; there were no viable relative options as of the time of this hearing.

• This was a hearing heard on February 8, 2005, before Judge Lefler.  The father had not been given notice of the proceedings. The matter was set for trial and a permanency petition had been filed.

• This was a hearing heard on February 9, 2005, before Judge Reilly.  ICWA requires notice to be sent by registered mail yet notice upon the mother was provided by publication. The court continued prior orders.

• This was a hearing heard on March 2, 2005, before Judge Reilly. The father had not been given notice of the proceedings. The proceeding was continued, in regards to the father, to allow notice.

• This was a hearing heard on March 17, 2005, before Judge Reilly. Testimony for a transfer of legal custody, as well as an expert testimony affidavit in support by the Tribe was received. The proceedings were stayed until notice was published on the mother, even though ICWA requires notice to be sent by registered mail.

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

• This was a permanency trial on February 7, 2005, before Judge Lefler. ICWA gives parents the right to counsel in the proceeding. The court entered into a transfer of legal custody of the children to the father. The father’s attorney failed to appear on his behalf. The father was reluctant to proceed with the TLC without his attorney, as he was unfamiliar with workings of court proceedings. He eventually decided to waive his right to an attorney in order to receive custody of his children. The Tribe and the guardian ad litem were both in support of the father obtaining legal custody in this instance.

• This was a proceeding heard on March 17, 2005, before Judge Lefler. An attorney had been appointed for the father, yet no attorney appeared on his behalf.  The proceeding was continued and the father was assured that he would have representation at the next hearing.

            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.  The County Attorney’s office filed with the Court fifteen affidavits from tribal representatives to satisfy the expert witness requirement of ICWA. One hearing violated the expert witness requirement of ICWA. 

• This was a hearing heard on March 17, 2005, before Judge Roe.  The child had been in placement beyond the ninety-day requirement with no expert testimony to support the placement.  The court dismissed jurisdiction on three of the children, and reunification with the father was to occur by progress report.

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

• This was a hearing heard on February 2, 2005, before Judge Quaintance.  Ramsey County was assigned this case because of a conflict of interest within Hennepin County Social Service’s Division. During the prior hearing the issue of whether the Grandmother was an Indian Custodian was addressed. Two Tribes asserted that the grandmother was an Indian custodian, as well as Ramsey County. The County Attorney asserted that the grandmother was not an Indian Custodian under ICWA. The Court ruled that the grandmother was not an Indian Custodian. Before this hearing Ramsey County resigned all involvement in this case, citing that the County Attorney’s office failed to adequately represent their interests in this matter. The County’s attempt to find another agency to provide services for the family was to no prevail. Active efforts were not provided in this proceeding because there was not a party to provide the family with services. The case was eventually dismissed, as another agency could not be located to provide services.

• This was a pre-trial conference on the permanency petition heard on March 21, 2005, before Judge Roe.  The county argued that the mother must address her mental health issues in order to be reunified with her child. The county provided her with only one program option, and this program denied admittance of the mother asserting that she did not have mental health issues. The county did not provide any other options for the mother and reasserted that she must complete this mental health program for reunification to occur. The court continued all prior orders.

• This was a hearing heard on March 24, 2005, before Judge Lefler. ICWA requires viable relatives to be the first placement option for out of home placement. A family member contacted the county after learning that these children were in out of home placement and asked if he could be a viable placement for the children because he was a relative. The county disregarded this contact, making no effort to investigate the possible relative placement option.

            The court hearings involved a total of 250 children.  Twenty-six of the children were enrolled members; 211 were eligible for membership; and thirteen were determined to be ineligible for membership.  The number of Tribes involved in hearings this quarter totaled 204. The breakdown of these hearings, by the child’s tribal affiliation, is as follows:

The placements of the children were as follows:  Fifty-one of the children were either returned home or remained at home under protective supervision; Seventy-seven children were placed or remained with relatives; Eighty-five children were placed or remained in Indian foster care; one child was placed in a non-Indian foster home at his own request and with the approval of the child’s tribe; seventeen children were in emergency shelter placement; seven were in group homes; four were in residential treatment centers; two children were on run; two children were in the hospital; one child was placed in a transitional living program; and the whereabouts of three children were unknown at the time of the hearing. 

            Mothers of the children were present at seventy-seven of the hearings.  There were a total of thirty-six fathers present at the hearings.  Guardians ad litem were present at sixty-six of the hearings.  Tribal representatives were present at fifty-nine of the hearings.  Minneapolis American Indian Center advocates were present at thirty-three of the hearings.  Advocates from other community agencies were present at thirteen of the hearings.  There were 112 instances of a Tribe being involved in a hearing where no tribal representative or Indian advocate was present to represent the Tribe’s interest.

Prepared by:

Jason T. Stark

ICWA Court Monitor                           Back to court monitor page