Indian Child Welfare Court Monitor

Quarterly Report

October, November and December, 1999

                                            Prepared by: Paul T. Minehart , ICWA Court Monitor 

The hearings monitored during the 1999 calendar year involved a total of  402 children.  Seventy-one of the children were enrolled and 319 were eligible for membership.  Twelve of the children were not eligible for enrollment; however, I do not know how many of these children are eligible for membership in their tribes.  The placements of the children, as of December 31, 1999, were as follows:  123 of the children were at home; 112 children were placed with relatives; 103 were placed in Indian foster care; 20 children were placed in non-Indian foster homes; 18 children were in emergency shelter placement; nine were in residential treatment facilities; 10 were in group homes; one child was in detention pending further placement; three children were in the hospital; and the whereabouts of three children were unknown. 

I  monitored 189 hearings this quarter.  Twelve (6%) were out of compliance with the Indian Child Welfare Act (ICWA).   Twenty-eight of the hearings monitored were hold hearings.

            Thirty-five children were found to be children in need of protection and services.  Twenty-six of the CHIPS findings entered were the result of settlements; nine were the result of default findings.  CHIPS jurisdiction over 15 children who had been reunified was dismissed by the Court.  A transfer of legal custody to a relative was ordered for seven children.  Four children were ordered into long-term foster care.  Twenty-one 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.  Nineteen of the hearings were continued without a hearing.

            The Court granted one motion to intervene brought by a tribe.  The
Court denied one motion to transfer jurisdiction to tribal court brought by a tribe because the parent objected to the motion.

                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.  Four
hearings monitored violated the notice requirements of ICWA.

·        This was a TPR trial heard on November 15, 1999, before Judge Reilly.  No notice of the TPR petition  had been sent to the tribe by registered mail, return receipt requested.  The tribe did know of the TPR proceeding, however, and had supplied an affidavit of expert testimony in support of the TPR. 

·        This was a TPR pretrial heard on November 22, 1999, before Judge Reilly.  No notice of the TPR petition  had been sent to the tribe by registered mail, return receipt requested.  Again, the tribe did know of the TPR proceeding. 

·        This was a TPR arraignment heard on December 1, 1999, before Judge Reilly.  No notice of the TPR petition  had been sent to the tribe by registered mail, return receipt requested.  The arraignment was continued to allow for proper service on the tribe.

·        This was a state ward review hearing heard on December 16, 1999, before Judge Wieland.  Notice had been provided to the tribe that mother was believed to be affiliated with, but not to the father’s tribe.  A representative from the father’s tribe was present at the hearing.  The tribe had received information about the case from the foster parent.  The father’s tribe is still determining eligibility of the children for membership.  One of the children had been placed in non-Indian foster care.

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

·        This was a hold hearing heard on October 20, 1999, before Judge Lefler.  Although the father had requested an attorney, there was no attorney available to represent  the father.   The attorney was covering non-ICWA hold hearings.  The hearing went forward without the father’s attorney being present. 

·        This was a CHIPS review hearing heard on November 2, 1999, before Judge Lefler.  The mother’s attorney had a medical emergency and was not present for the hearing.  The mother waived her right to have her attorney present. 

·        This was a CHIPS review hearing heard on November 23, 1999, before Judge Blaeser.  The father’s attorney was in another hearing and was not present for this hearing.

·        This was a state ward review hearing heard on December 22, 1999, before Judge Blaeser.   The attorney for the child failed to appear.  The attorney did have notice of the hearing.  There was no information provided as to why the attorney did not appear. 

            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 six hearings where live testimony was presented to fulfill the expert witness requirement.  The County Attorney’s office filed with the Court 20 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 scheduled before Judge Lefler for October 6, 1999.  Four children were in placement six months with no expert testimony.  The matter was continued to November 3, 1999, and  still there was no testimony.   On December 7, 1999, an affidavit of expert testimony from the tribe was filed with the Court.

·        This was a CHIPS review hearing heard on October 12, 1999, before Judge Blaeser.  Two children had been in placement nine months with no expert testimony.  The tribe has not responded as to whether the children are eligible for membership.

·        This was a CHIPS pretrial heard on November 23, 1999, before Judge Blaeser.  The two children had been in placement over 90 days without the expert testimony to support the placement.  Hennepin County Department of Children and Family Services (DCFS) had an affidavit to support the placement of one child, but offered no testimony to support continuing the placement of the other child.  The mother requested her child be returned to her because of the expert testimony violation.  The court continued the placement of both children.

·         This was a CHIPS review hearing scheduled for December 27, 1999, before Judge Lefler.  Two children had been in placement  over four months with no expert testimony to support the placement.  The County Attorney’s office had been trying to obtain the testimony.  The parent was recently incarcerated and was not brought in for the hearing.  The matter was continued without a hearing.  

One other hearing is worth mentioning here.

·        This was a motion to invalidate the proceedings for alleged violations of the notice and expert witness provisions of ICWA heard on December 22, 1999, before Judge Lefler.  DCFS initially believed the children to be eligible in one band of the Minnesota Chippewa Tribe, when the children were actually enrolled in a different band.   DCFS had obtained testimony from the first identified band and had been conferring with that band about the case.  Once DCFS was aware of  its mistake, DCFS obtained testimony from the proper band.  The band where the children are enrolled did not support the mother’s motion to invalidate.  The Court took the matter under advisement. 

            The court hearings involved a total of 279 children.  Fourty-three of the children were enrolled members and 234 were eligible for membership.  Two of the children were not eligible for enrollment; however, I do not know if these children are 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:  81 of the children were either returned home or remained at home under protective supervision; 79 children were placed with relatives; 73 children were placed in Indian foster care; 14 children were placed in  non-Indian foster homes with the approval of the children’s tribe; two children were placed in  non-Indian foster homes due to the children’s special needs and with the approval of the children’s tribe; one child was placed in a non-Indian foster home without the approval of the child’s tribe; two children were placed in a non-Indian foster home at the request of the mother; 18 children were in emergency shelter placement; one was in a group home; six were in residential treatment centers; two children were in the hospital; and the whereabouts of one child was unknown at the time of the hearing. 

            Mothers of the children were present at 104 of the hearings.  There were a total of 43 fathers present at the hearings.  Guardians ad litem were present at 18 of the hearings.  Tribal representatives were present at 68 of the hearings.  Minneapolis American Indian Center advocates were present at 43 of the hearings.  Advocates from other community agencies were present at 16 of the hearings.  There were 59 hearings where no tribal representative or Indian advocate was present.