Indian Child Welfare Court Monitor

Quarterly Report  

January, February and March, 1999

Prepared by: Paul T. Minehart , ICWA Court Monitor  

I  monitored 89 hearings this quarter.  Fourteen (16%) were out of compliance with the Indian Child Welfare Act (ICWA).   Twelve of the hearings monitored were hold hearings.

            Twenty-seven children were found to be children in need of protection and services.  Twenty-one of the CHIPS findings entered were the result of settlements; six resulted from defaults.   CHIPS jurisdiction over three children was dismissed by the Court.  Those children were reunified with a parent or previous legal custodian.  A transfer of legal custody to a relative was ordered for four children.  One child was ordered into long-term foster care.  Fifteen of the hearings were continued without a hearing.

            The County Attorney’s office filed with the Court 14 affidavits from tribal representatives to satisfy the expert witness requirement of ICWA.  There were four hearings where live testimony was presented to fulfill the expert witness requirement.

                One hearing monitored violated the notice requirements of ICWA.

·        This was a  hold hearing heard on March 3, 1999, before Judge Lefler.  DCFS did not realize the child was Indian through his father until shortly before the hold hearing.  Consequently, the child’s tribe was not notified of the hold hearing.

There were four instances where counsel for a party failed to appear.

·        This was a CHIPS review hearing heard on January 5, 1999, before Judge Schellhas.  The attorney for the child failed to appear.  At issue was the child’s placement.  The child waived his right to an attorney for the purposes of the hearing.

·        This was a CHIPS review hearing heard on January 6, 1999, before Judge Alexander.  At the previous hearing a conflict developed between the parents.  The father’s public defender referred the case to the conflict’s panel.             
A  conflict’s attorney was assigned, but was out of the country at the time of the hearing.  The father was present at the hearing.  The matter was continued so the father’s attorney could be present.

·        This was a CHIPS arraignment scheduled for February 16, 1999, before Judge Lefler.  The hearing was scheduled for the afternoon; however, father’s counsel thought the hearing was in the morning and was unable to be present in the afternoon.  The arraignment was continued so that the father could have his attorney present.

·        This was TPR pretrial scheduled for February 24, 1999, before Judge Schellhas.  The father’s attorney failed to appear.  The father was present.  The matter was continued without a hearing.

            Four hearings violated the expert witness requirement of ICWA. 

·        This was a permanency arraignment heard on January 6, 1999, before Judge Alexander.  The child had been in out of home placement for 1 year with no expert testimony to support the placement.  The tribe was represented at the hearing, supported the out of home placement, and agreed to submit the testimony to the Court.  An affidavit from the tribe was filed with the Court on February 22, 1999.

·        This was a CHIPS trial scheduled for January 11, 1999, before Judge Schellhas.  The trial was continued because the mother was unable to attend.  However, the children had been in out of home placement six months with no expert testimony to support the placement.  The Court found that the county attorney had made diligent efforts to obtain the testimony, and ordered the county attorney to continue those efforts.  The Court further found that to return the children to the parent today would subject the children to substantial and immediate danger.  The Court continued the placement until the next hearing.   An affidavit providing the expert testimony was filed with the Court on February 22, 1999.

·        This was a CHIPS settlement heard on March 29, 1999, before Judge Alexander.  The children had been in placement just over 90 days with no expert testimony.  The Court stayed the CHIPS adjudication pending receipt of the expert testimony.

·        This was a CHIPS review hearing heard on March 31, 1999, before Judge Lefler.  Three children had been in out of home placement since October 5, 1997, with no expert testimony.  The county attorney offered live testimony provided by the tribal representative to satisfy the expert witness requirement.

            Six hearings violated ICWA’s requirement to provide active efforts.

·        This was long-term foster care review hearing heard on February 4, 1999, before Judge Lefler.   There had been no DCFS worker assigned to the case for the preceding six weeks.  The child had been in shelter for three and one-half months.

·        This was a CHIPS review hearing heard on February 8, 1999, before Judge Lueng.  The DCFS worker failed to appear for the hearing.  The parents also failed to appear.  The Court authorized dismissal by progress report if the parents were doing well on their case plan.

·        This was a truancy pretrial heard on February 4, 1999, before Judge Lueng.  The Department of Corrections worker failed to appear for the hearing.   

·        This was a CHIPS arraignment heard on February 16, 1999, before Judge Blaeser.  The child had been in placement over a month with no written case plan having been provided to the legal custodian or filed with the Court.  The parties, however, appeared to be in agreement as to what the case plan was.  The Court asked the DCFS worker to prepare a written case plan. 

·        This was a CHIPS long-term foster care review hearing set for March 2, 1999, before Judge Blaeser.  The DCFS failed to arrange visitation between the child and a family friend even though the Court had ordered the visitation at an earlier hearing.

·        This was a CHIPS review hearing heard on March 31, 1999, before Judge Lefler.  Although the CHIPS petition had been filed on June 4, 1997, there had never been a CHIPS finding on the child.  An admission was accepted from the father; default testimony was provided regarding the mother; and the Court made a CHIPS finding. 

The court hearings involved a total of 147 children.  Fourteen of the children were enrolled members and 131 were eligible for membership.  Two children were not eligible for membership.  The placements of the children were as follows:  39 of the children were either returned home or remained at home under protective supervision; 33 children were placed with relatives; 45 children were placed in Indian foster care; one child was placed in a non-Indian foster home with the approval of the tribe; two children were placed in a non-Indian foster home at the request of the mother; 18 children were in emergency shelter placement; two were in residential treatment facilities; five were in group homes; one child was in the juvenile detention center; and the whereabouts of one child was unknown at the time of the hearing. 

            Mothers of the children were present at 49 of the hearings.  There were a total of 28 fathers present at the hearings.  Guardians ad litem were present at 15 of the hearings.  Tribal representatives were present at 29 of the hearings.  Minneapolis American Indian Center advocates were present at 28 of the hearings.  Advocates from other community agencies were present at 14 of the hearings.  There were 29 hearings where no tribal representative or Indian advocate was present.

            The number of hearings, by the child’s tribal affiliation, is as follows:

There were no cases heard on the American Indian Community Collaborative (AICC) calendar this quarter.  This calendar is for cases where the family is accepting voluntary services from DCFS.  The court approves agreements for protective supervision of children remaining in the home.  The court also approves voluntary placements and certifies that the parents understand their rights under the voluntary placement agreement.