Indian Child Welfare Court Monitor , Quarterly Report

Quarter 3, July, August and September, 1999

Prepared by: Paul T. Minehart , ICWA Court Monitor  

I  monitored 108 hearings this quarter.  Twelve (11%) were out of compliance with the Indian Child Welfare Act (ICWA).   Thirteen of the hearings monitored were hold hearings.

            Fifteen children were found to be children in need of protection and services.  Thirteen of the CHIPS findings entered were the result of settlements; two were the result of default findings.  Eighteen children who had been in placement were reunified with a parent or previous legal custodian this quarter.  CHIPS jurisdiction over 14 children was dismissed by the Court.  Those children had been reunified with a parent or previous legal custodian.  A transfer of legal custody to a relative was ordered for five children.  The Court terminated the parental rights of one parent.  That termination of parental rights was the result of a default.  Six of the hearings were continued without a hearing.

                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.  Two hearings monitored violated the notice requirements of ICWA.

·        This was a CHIPS pretrial heard on July 7, 1999, before Judge Lefler.  Hennepin County Department of Children and Family Services (DCFS) learned shortly before the hearing that the child may be eligible in a second tribe which had not received notice of the proceedings.  The Court allowed  DCFS to go forward with the hearing, finding the mother in default, and stayed entry of the findings pending notification to the tribe.  Notice was subsequently provided to the tribe and the tribe responded that the child was not eligible in that tribe.  In addition, DCFS relied on notice by publication, rather than notice by registered mail, as to the father to obtain a default CHIPS finding. 

·        This was a CHIPS review hearing heard on September 16, 1999, before Judge Lefler.  The tribe had never received notice of the proceedings by registered mail.  The tribe did have actual notice of the proceeding, however, and had provided expert testimony to support the out of home placement.  Formal notice by registered mail was provided to the tribe on September 17, 1999. 

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

·        This was a review hearing for a child in long-term foster care heard on July 7, 1999, before Judge Reilly.  The mother’s attorney who had received notice of the hearing by mail failed to appear.  The parent waived her right to have her attorney present for the hearing.

·        This was CHIPS review hearing heard on August 2, 1999, before Judge Lefler.  The father’s attorney failed to appear.  There was no information available as to why the attorney did not appear.  The father also was not present.

·        This was a CHIPS review hearing heard on August 23, 1999, before Judge Reilly.  The father’s attorney failed to appear for the hearing and no one appeared to cover the hearing.  The father who was asking for his child to be placed with him waived his right to an attorney. 

·        This was a CHIPS review hearing heard on September 7, 1999, before Judge Schellhas.  The father’s attorney failed to appear for the hearing.  The attorney had called the county attorney on the case to say he would not be there.  There were no changes being considered with respect to the father.  The father agreed to go forward without his attorney. 

·        This was a CHIPS review hearing heard on September 8, 1999, before Judge Alexander.  The father’s attorney was out sick and no one was there to cover the hearing.  The father waived his right to have his attorney present. 

·        This was a CHIPS review hearing heard on September 13, 1999, before Judge Reilly.  Neither counsel or the mother or the father appeared at the hearing.  At issue, was the placement of one child in a RTC.  Both parents 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 90 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 16 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.

Four other hearings violated the expert witness requirement of ICWA. 

·        This was a CHIPS review hearing heard on September 7, 1999, before Judge Schellhas.  One child had been in placement for over 1 year with no expert testimony to support the placement.  The mother’s tribe had responded that the child was not eligible, but the county attorney’s office had not received a response from the father’s tribe where the child may be eligible. 

·        This was a CHIPS review hearing heard on September 14, 1999, before Judge Lefler.  The child had been in placement five months with no expert testimony to support the placement.  The tribe had originally stated that the child was not eligible for membership, but upon receiving further information, determined the child to be eligible.

·        This was a CHIPS review hearing heard on September 15, 1999, before Judge Lefler.  Two children had been in placement three and one-half months with no expert testimony.  The county attorney informed the Court that the tribe was supporting the expert testimony, but the county had not obtained the testimony as yet.

·        This was a CHIPS pretrial heard on September 23, 1999, before Judge Lueng. The child had been in placement just short of 90 days without expert testimony.  The tribe did not believe placement was necessary.  The mother was asking for return of her child.  The Court continued the placement and requested briefs on the issue of continuing placement without expert testimony.  The Court returned the child to the mother on September 28, 1999. 

            The court hearings involved a total of 174 children.  Thirty-two of the children were enrolled members and 142 were eligible for membership.  The placements of the children were as follows:  48 of the children were either returned home or remained at home under protective supervision; 47 children were placed with relatives; 43 children were placed in Indian foster care; three children were placed in  non-Indian foster homes with the approval of the children’s tribe; 21 children were in emergency shelter placement; four were in group homes; four were in residential treatment centers; one child was in the juvenile detention center; one infant was in the hospital; one child was in an independent living situation; and the whereabouts of one child was unknown at the time of the hearing. 

            Mothers of the children were present at 65 of the hearings.  There were a total of 31 fathers present at the hearings.  Guardians ad litem were present at 12 of the hearings.  Tribal representatives were present at 61 of the hearings.  Minneapolis American Indian Center advocates were present at 10 of the hearings.  Advocates from other community agencies were present at 12 of the hearings.  There were 31 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.