Indian Child Welfare Court Monitor

Quarterly Report
July, August & September, 2004

I monitored 85 hearings this quarter.  Ten (12%) were out of compliance with the Indian Child Welfare Act (ICWA).   Seventeen of the hearings monitored were hold hearings.

            Four children were found to be children in need of protection and services.  Three of the CHIPS findings entered were the result of settlements; one resulted from a default finding.  CHIPS jurisdiction over two 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 eight children.  One child was ordered into long-term foster care.  Twelve 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.  One termination of parental rights was the result of a settlement; three resulted from defaults.  Four of the hearings were rescheduled without a hearing being held.

            The Court granted one motion brought by a tribe to intervene. 

                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.  Two hearings monitored violated the notice requirements of ICWA.

• This was a CHIPS admit/deny hearing heard on July 12, 2004, before Judge Reilly.  Formal notice of the petition had not been mailed to the tribe.  The Hennepin County Human Services Department (HSD) worker had left telephone messages for the tribe.  The children were at home under protective supervision. 
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• This was CHIPS admit deny hearing heard on September 15, 2004, before Judge Reilly.  The mother had filed a transfer of legal custody petition on September 7, 2004.  The Court took action on the transfer of legal custody petition before the ten days notice period had passed.  All parties, including two tribes, were present for the hearing and in agreement with the transfer of legal custody going through.  The Court stayed entry of the transfer of legal custody order until after the ten day requirement had been met. 

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 hold hearing heard on July 15, 2004, before Judge Lefler.  According to the definition found in the Minnesota Department of Human Services Social Services Manual the father had acknowledged his paternity.  However, the father was not appointed an attorney until he signed a Recognition of Parentage form. 

• This was TPR pretrial heard on August 10, 2004, before Judge Lefler.  An attorney had been appointed for the father, yet no attorney appeared on his behalf.  The father also was not present.  The matter was continued without a hearing.  No attorney for the father appeared at the continued pretrial heard on August 17, 2004.  The father was not present at this hearing as well.  

• This was a CHIPS review hearing heard on September 9, 2004, before Judge Graham.  The children’s attorney did not appear for the hearing.  The children were present for the 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.  There were two hearings where live testimony was presented to fulfill the expert witness requirement.  The County Attorney’s office filed with the Court nine affidavits from tribal representatives to satisfy the expert witness requirement of ICWA.

Four hearings violated the expert witness requirement of ICWA. 

• This was a CHIPS review hearing heard on July 15, 2004, before Judge Roe.  The child had been in placement four months with no expert testimony to support the placement.  Mom and the guardian ad litem were requesting return of the child.  The Court returned the child. 

• This was TPR pretrial heard on August 10, 2004, before Judge Lefler.  One child had been in placement four months with no expert testimony to support the placement. 

• This was a CHIPS review hearing heard on September 15, 2004, before Judge Reilly.  Three children had been in placement over four months with no expert testimony to support the placement.  The tribal representative was present for the hearing and stated the tribe was supportive of continued placement of the children.  The tribal representative agreed to provide an affidavit of expert testimony after the hearing.  An affidavit of expert testimony was filed with the Court on September 16, 2004. 

• This was a review hearing and motion hearing heard on September 20, 2004, before Judge Lefler.  Four children had been in placement over 8 months with no expert testimony to support the placement.

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 a long term foster care review hearing heard on August 16, 2004, before Judge Reilly.  In October, 2003, a social worker was supposed to have been assigned to the case, yet as pf August, 2004, the child still had not had a worker assigned to her case.  The Court contacted the department and a worker was assigned that day.

            The court hearings involved a total of 127 children.  Ten of the children were enrolled members and 117 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:  Thirty-seven of the children were either returned home or remained at home under protective supervision; thirty-nine children were placed with relatives; twenty-six children were placed in Indian foster care; one child was placed in a non-Indian foster home at the request of the mother and with the approval of the children’s tribe; twelve children were in emergency shelter placement; seven were in group homes; three were in residential treatment centers; one child was ordered to remain in detention pending further hearings regarding placement; and the whereabouts of one child was unknown at the time of the hearing. 

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

Prepared by:

Paul T. Minehart
ICWA Court Monitor