Indian Child Welfare Court Monitor
Quarterly Report

October, November & December, 2003

The hearings monitored during the 2003 calendar year involved a total of 409 children.  Fifty-three of the children were enrolled and 348 were eligible for membership.  Eight of the children were deemed not eligible for membership in their tribes.  The placements of the children, as of December 31, 2003, were as follows:  100 of the children were at home; 120 children were placed with relatives; 125 were placed in Indian foster care; seventeen children were placed in non-Indian foster homes; nine children were in emergency shelter placement; twelve were in residential treatment facilities; fourteen were in group homes; three children were held in detention pending further placement; one child was in the hospital; and the whereabouts of eight children were unknown.

I monitored 116 hearings this quarter.  Seven (6%) were out of compliance with the Indian Child Welfare Act (ICWA).   Thirteen of the hearings monitored were hold hearings.

            Twenty-three children were found to be children in need of protection and services.  Twenty-two of the CHIPS findings entered were the results of settlements; one resulted from a default.  A transfer of legal custody to a relative was ordered for seventeen children.  One child was ordered into long-term foster care.  Five children who had been in placement were reunified this quarter with a parent or previous legal custodian.  The Court terminated the parental rights of one parent.  This termination of parental rights resulted from a default.  Four of the hearings were rescheduled without a hearing being held.

            The Court, on its own motion, transferred jurisdiction of one case to tribal court.  The Court denied one motion to tribal court.

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

• This was a CHIPS pretrial settlement hearing heard on October 23, 2003, before Judge Lefler.  The attorney for two of the children failed to appear 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 eight hearings where live testimony was presented to fulfill the expert witness requirement.  The County Attorney’s office filed with the Court nineteen affidavits from tribal representatives to satisfy the expert witness requirement of ICWA.

Three hearings violated the expert witness requirement of ICWA. 

§   This was permanency pretrial heard on November 4, 2003, before Judge Reilly.  One child had been in placement over five months with no expert testimony to support the placement.  Mother requested return of the children based upon the lack of expert testimony.  The Hennepin County Children, Family and Adult Services Department (CFASD) argued that the tribal affiliation of the child had been unclear and that caused the delay in obtaining the testimony.  The Court found  extraordinary circumstance to continue the child in placement without the expert testimony. 

• This was a CHIPS trial that went by settlement heard on November 25, 2003, before Judge Reilly.  One child had been in placement for four months with no expert testimony to support the placement.  Apparently this child had been overlooked and not included in an affidavit of expert testimony for the child’s siblings.  The tribe was in the process of executing another affidavit to cover this child. 

• This was a CHIPS review hearing heard on December 22, 2003, before Judge Graham.  One child had been in placement five months with no expert testimony to support the placement.  Mother was agreeable to the reunification plan presented to the Court.  She was not requesting immediate reunification.  The tribe was also agreeable with the reunification plan.  Testimony from the tribe was provided at the hearing. 

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 December 15, 2003, before Judge Reilly.  The child had through her attorney requested a different social worker from CFASD, but never received a response to the request.  The child was now asking the Court to order a different worker.  The Court took the matter under advisement to allow the CFASD additional time to respond to the request. 

ICWA requires placement of a child pursuant to specified placement preferences.  The DHS Social Services Manual makes it clear that the placement preferences apply to emergency placements.  One hearing violated these placement provisions of ICWA.

• This was an emergency protective care hearing heard on October 7, 2003, before Judge Quaintance.  Even though the CFASD worker knew the child was Indian, the child was placed in a non-Indian foster home without tribal knowledge or approval simply because a non-Indian home was available. 

            One other hearing is worth mentioning here.

• This was a long-term foster care review hearing heard on December 15, 2003, before Judge Reilly.  The child who is receiving SSI benefits has been working.  The Social Security Administration had determined that because of the child’s income the child had received an overpayment of Social Security benefits.  The Social Security Administration sought to recoup the overpayment.  CFASD had submitted a request to the Social Security Administration that it recoup the payment from the child, and not from CFASD who is the legal custodian of the child.  The child had no participation in this request.  The Court appointed the Children’s Law Center to represent the child in Social Security matter if CFASD will not withdraw its request to hold the child responsible for the overpayment. 

            The court hearings involved a total of 174 children.  Twenty-five of the children were enrolled members and 149 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 of the children were either returned home or remained at home under protective supervision; fifty-one children were placed with relatives; sixty children were placed in Indian foster care; nine children were placed in non-Indian foster homes with the approval of the children’s tribe; one child was placed in a non-Indian foster home at the request of the child; four children were in emergency shelter placement; eight were in group homes; five were in residential treatment centers; one child was in the hospital; one child was ordered to remain in detention pending further hearings regarding their placement; and the whereabouts of four children were unknown at the time of the hearing. 

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

Prepared by:

Paul T. Minehart

ICWA Court Monitor