The hearings monitored during the 2001 calendar year involved a total of 502 children. Eighty of the children were enrolled and 411 were eligible for membership. Eleven of the children were deemed not eligible for membership in their tribes. The placements of the children, as of December 31, 2001, were as follows: 162 of the children were at home; 159 children were placed with relatives; 115 were placed in Indian foster care; 15 children were placed in non-Indian foster homes; 14 children were in emergency shelter placement; 20 were in residential treatment facilities; 3 were in group homes; two children were held in detention pending further placement; and the whereabouts of 10 children were unknown.

I monitored 158 hearings this quarter. Ten hearings (6%) were out of compliance with the Indian Child Welfare Act (ICWA). Seventeen of the hearings monitored were hold hearings.

Thirty-eight children were found to be children in need of protection and services. Twenty-three of the CHIPS findings entered were the results of settlements; 15 resulted from default findings. CHIPS jurisdiction over 12 children was dismissed by the Court. A transfer of legal custody to a relative was ordered for 13 children. Two children were ordered into long-term foster care. Seventeen children who had been in placement were reunified this quarter with a parent or previous legal custodian. The Court terminated the parental rights of nine parents. Five terminations of parental rights were the result of settlements; four resulted from defaults. Thirteen of the hearings were continued without a hearing.

The Court granted one motion brought by a tribe to intervene. The
Court granted one motion brought by a tribe to transfer jurisdiction to tribal court. The Court took under advisement a motion to transfer jurisdiction brought by a tribal representative in order to ask the tribal court if it was willing to accept jurisdiction.

ICWA gives parents the right to counsel in the proceeding. The right to counsel under ICWA extends to non-adjudicated fathers. The definition of parent pursuant to ICWA includes an unwed father who has acknowledged his paternity. The Minnesota DHS Social Services Manual defines acknowledge as any action taken by a man to hold himself out as the father. The Court may also appoint counsel for a child. Five hearings violated a party’s right to counsel.

This was a CHIPS pretrial hearing heard on October 2, 2001, before Judge Blaeser. A public defender had been appointed for the mother at the last court hearing. No attorney appeared on behalf of the mother.

This was a CHIPS emergency protective care hearing heard on December 4, 2001, before Judge Lefler. Although the father had signed a Declaration of Parentage, he was not appointed a public defender because he was a non-custodial parent.

This was a CHIPS admit/deny hearing heard on December 11, 2001, before Judge Lefler. The father who had not signed a declaration of parentage was denied the appointment of a public defender because he was a non-adjudicated parent.

This was a TPR pretrial heard on December 11, 2001, before Judge Lefler. An attorney had been appointed for two of the children at the previous hearing; however, no attorney appeared at the hearing. The children were present for the hearing. The Court reunified the children with their mother.

This was a CHIPS review hearing heard on December 12, 2001, before Judge Blaeser. The father requested an attorney, but one was not appointed because he was a non-custodial parent.

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. There were seven hearings where live testimony was presented to fulfill the expert witness requirement. The County Attorney’s office filed with the Court 23 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 pretrial hearing heard on October 2, 2001, before Judge Blaeser. One child had been in placement over 15 months with no expert testimony to support the placement. Live expert testimony to support a transfer of legal custody to a relative was provided at the next hearing held on November 7, 2001.

This was a CHIPS trial heard as a settlement on October 25, 2001, before Judge Lefler. Three children had been in placement four months with no expert testimony to support the placement. The Court stayed adjudication of the children as CHIPS until expert testimony was provided.

This was a CHIPS review hearing heard on October 30, 2001, before Judge Reilly. The child had been in placement 10 months with no expert testimony to support the placement. An affidavit of expert testimony was filed with the court on December 12, 2001.

This was a hearing on a motion for long-term foster care heard on December 18, 2001, before Judge Lefler. Long-term foster care was ordered without expert testimony to support the order. The tribe had indicated it did not wish to be involved in the proceedings. The mother made a motion to invalidate the proceedings with respect to a second child for lack of expert testimony. The court took the motion under advisement.

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 an admit/deny hearing on a transfer of legal custody petition. The Hennepin County Children, Family & Adult Services Department (CFASD) worker did not appear for the hearing. The worker was at a training and no one appeared to provide coverage.

ICWA requires placement of a child in the least restrictive setting which most approximates a family. ICWA also provides preferences for the placement of a child that must be followed unless good cause exists to not follow the placement preferences. One hearing violated these placement provisions of ICWA.

This was a hearing on a motion for long-term foster care heard on December 18, 2001, before Judge Lefler. One child was placed in non-Indian foster care without evidence being presented on the issue of good cause to support the placement. The child’s tribe had indicated it did not wish to be involved in the proceedings.

One other hearing is worth mentioning here.

This was CHIPS review hearing heard on October 31, 2001, before Judge Blaeser. The child was ordered into placement based upon a finding that out of home placement was in the child’s best interest. There was no finding of imminent harm or danger, nor a finding of a likelihood of serious physical or emotional harm based upon the testimony of a qualified expert witness. The order also contained no finding of active efforts on behalf of the county to prevent the placement.

The court hearings involved a total of 263 children. Thirty-six of the children were enrolled members and 221 were eligible for membership. Six of the children were deemed not eligible for membership in their tribes. The number of hearings, by the child’s tribal affiliation, is as follows:

The placements of the children were as follows: 77 of the children were either returned home or remained at home under protective supervision; 95 children were placed with relatives; 50 children were placed in Indian foster care; two children were placed in non-Indian foster homes with the approval of the children’s tribe; two children were placed in a non-Indian foster homes due to medical needs with the approval of the children’s tribe; one child was placed in a non-Indian foster home because no Indian foster homes were available; one child was in a non-Indian home because Hennepin County CFASD believed the case was a non-ICWA case; 14 children were in emergency shelter placement; one was in a group home; nine were in residential treatment centers; two children were ordered to remain in detention pending further hearings regarding their placement; two children were in a residential boarding school; and the whereabouts of seven children were unknown at the time of the hearing.

Mothers of the children were present at 97 of the hearings. There were a total of 46 fathers present at the hearings. Guardians ad litem were present at 24 of the hearings. Tribal representatives were present at 61 of the hearings. Minneapolis American Indian Center advocates were present at 22 of the hearings. Advocates from other community agencies were present at 5 of the hearings. There were 74 hearings where no tribal representative or Indian advocate was present.

Prepared by:

Paul T. Minehart

ICWA Court Monitor