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25 U.S.C.A. § 1912
United States Code Annotated
Title 25. Indians
Chapter 21. Indian Child Welfare (Refs & Annos)
Subchapter I. Child Custody Proceedings
§
1912. Pending court proceedings
(a) Notice; time for commencement of proceedings; additional time for preparation
In any involuntary proceeding in a State court, where the court knows or has reason to know that an Indian child is involved, the party seeking the foster care placement of, or termination of parental rights to, an Indian child shall notify the parent or Indian custodian and the Indian child's tribe, by registered mail with return receipt requested, of the pending proceedings and of their right of intervention. If the identity or location of the parent or Indian custodian and the tribe cannot be determined, such notice shall be given to the Secretary in like manner, who shall have fifteen days after receipt to provide the requisite notice to the parent or Indian custodian and the tribe. No foster care placement or termination of parental rights proceeding shall be held until at least ten days after receipt of notice by the parent or Indian custodian and the tribe or the Secretary: Provided, That the parent or Indian custodian or the tribe shall, upon request, be granted up to twenty additional days to prepare for such proceeding.
In any case in which the court determines indigency, the parent or Indian custodian shall have the right to court-appointed counsel in any removal, placement, or termination proceeding. The court may, in its discretion, appoint counsel for the child upon a finding that such appointment is in the best interest of the child. Where State law makes no provision for appointment of counsel in such proceedings, the court shall promptly notify the Secretary upon appointment of counsel, and the Secretary, upon certification of the presiding judge, shall pay reasonable fees and expenses out of funds which may be appropriated pursuant to section 13 of this title.
(c) Examination of reports or other documents
Each party to a foster care placement or termination of parental rights proceeding under State law involving an Indian child shall have the right to examine all reports or other documents filed with the court upon which any decision with respect to such action may be based.
(d) Remedial services and rehabilitative programs; preventive measures
Any party seeking to effect a foster care placement of, or termination of parental rights to, an Indian child under State law shall satisfy the court that active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and that these efforts have proved unsuccessful.
(e) Foster care placement orders; evidence; determination of damage to child
No foster care placement may be ordered in such proceeding in the absence of a determination, supported by clear and convincing evidence, including testimony of qualified expert witnesses, that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child.
(f) Parental rights termination orders; evidence; determination of damage to child
No termination of parental rights may be ordered in such proceeding in the absence of a determination, supported by evidence beyond a reasonable doubt, including testimony of qualified expert witnesses, that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child.
(Pub.L. 95-608, Title I, § 102, Nov. 8, 1978, 92 Stat. 3071.)
HISTORICAL AND STATUTORY NOTES
Revision Notes and Legislative Reports
1978 Acts. House Report No. 95-1386, see 1978 U.S. Code Cong. and Adm. News, p. 7530.
Fighting over Indian children: The uses and abuses of jurisdictional ambiguity. Barbara Ann Atwood, 36 UCLA L.Rev. 1051 (1989).
LIBRARY REFERENCES
American Digest System
Indians 
6(2),
32(11).
Key Number System Topic No. 209.
RESEARCH REFERENCES
ALR Library
2002 ALR 5th 15, Determination that Child is Neglected or Dependent, or that Parental Rights Should be Terminated, on Basis that Parent Has Failed to Provide for Child's Education.
92 ALR 5th 379, Right of Indigent Parent to Appointed Counsel in Proceeding for Involuntary Termination of Parental Rights.
89 ALR 5th 195, Construction and Application of Indian Child Welfare Act of 1978 (ICWA) (25 U.S.C.A. §§ 1901 et seq.) Upon Child Custody Determinations.
22 ALR 4th 774, Validity of State Statute Providing for Termination of Parental Rights.
74 ALR 3rd 421, Comment Note.--Right of Natural Parent to Withdraw Valid Consent to Adoption of Child.
2 ALR 2nd 887, Annulment or Vacation of Adoption Decree by Adopting Parent or Natural Parent Consenting to Adoption.
Encyclopedias
8 Am. Jur. Proof of Facts 2d 481, Undue Influence in Obtaining Parent's Consent to Adoption of Child.
12 Am. Jur. Proof of Facts 2d 459, Determination of Heirship.
18 Am. Jur. Proof of Facts 2d 531, Equitable Adoption.
32 Am. Jur. Proof of Facts 3d 83, Grounds for Termination of Parental Rights.
46 Am. Jur. Proof of Facts 3d 231, Defense in Proceeding for Termination of Parental Rights on Ground of Mental Disability.
2 Am. Jur. 2d Adoption § 119, Requirements Under Indian Child Welfare Act.
2 Am. Jur. 2d Adoption § 160, on Application of Natural Parents.
Am. Jur. 2d Indians § 145, Generally; Tribe's Jurisdiction.
Am. Jur. 2d Indians § 152, Burden and Standard of Proof.
Am. Jur. 2d Indians § 153, Notice to Tribe of Proceedings.
Am. Jur. 2d Juv. Cts. & Delinq. & Dependent Children § 62, Preliminary Detention.
Treatises and Practice Aids
Federal Procedure, Lawyers Edition § 46:476, Involuntary Termination of Parental Rights.
Foster care placement, qualified expert witness 11
Qualified expert witness 10-12
Qualified expert witness - Generally 10
Qualified expert witness - Foster care placement 11
Qualified expert witness - Termination of parental rights 12
Revocation of relinquishment of parental rights 5
Termination of parental rights, qualified expert witness 12
Weight and sufficiency of evidence 17
In enacting subsec. (e) of this section, Congress was attempting to solve problem posed when witness unfamiliar with Indian culture testifies in proceeding to determine custody of Indian child. State ex rel. Juvenile Dept. of Multnomah County v. Charles, Or.App.1984, 688 P.2d 1354, 70 Or.App. 10, review allowed 693 P.2d 48, 298 Or. 427, review dismissed 701 P.2d 1052, 299 Or. 341.
Intent
of this chapter was to provide procedural safeguards for parent
or persons standing in parental role, evidenced by reference to
its provisions as being applicable to "Indian parent or custodian"
in the disjunctive. A. B. M. v. M. H., Alaska
1982, 651 P.2d 1170, certiorari denied 103 S.Ct. 1893, 461
U.S. 914, 77 L.Ed.2d 283. Indians 6.3(2)
Petition
filed by state for permanent custody of children of member
of Chippewa Cree Tribe, filed on Mar. 1, 1979, was
not governed by this chapter, in that this chapter did
not go into effect until May 7, 1979. Matter of
T. J. D., Mont.1980, 615 P.2d 212, 189 Mont. 147.
Infants 132
3. State regulation or control
Provision
of the Indian Child Welfare Act allowing a child who
is the subject of an action for foster care placement
or termination of parental rights or any parent of such
a child to petition any "court of competent jurisdiction" to
invalidate that action if it violated the Act does not
preempt state law subject matter jurisdiction or confer new subject
matter jurisdiction on state courts. Slone v. Inyo County Juvenile
Court, Cal.App. 4 Dist.1991, 282 Cal.Rptr. 126, 230 Cal.App.3d 263,
rehearing denied, review denied. Indians 6.6(2);
Indians 32(3)
Provision
of Indian Child Welfare Act (ICWA) requiring clear and convincing
evidence for placement of Indian child in foster care does
not conflict with and does not preempt state law prescribing
"preponderance of evidence" standard for fact-finding hearing to determine whether
child is abused or neglected; fact-finding hearing does not directly
affect continued custody of child by parent
or Indian custodian. New York City Dept. of Social Services
on Behalf of Oscar C., Jr. v. Oscar C., N.Y.A.D.
2 Dept.1993, 600 N.Y.S.2d 957, 192 A.D.2d 280, leave to
appeal denied 625 N.E.2d 591, 605 N.Y.S.2d 6, 82 N.Y.2d
660. Indians 6.6(3);
Infants 132;
States 18.28
Admission
of hearsay evidence in trial court's discretion during dispositive phase
of a state parental rights termination proceeding [AS 47.10.080(c)(3)] is
not preempted by the federal Indian Child Welfare Act [Indian
Child Welfare Act of 1978, § 102(f),
25 U.S.C.A. § 1912(f)]
and is not error. Matter of J.R.B., Alaska 1986, 715
P.2d 1170. Constitutional Law 274(5);
Indians 6.6(3)
Indian
child's maternal aunt, whose foster care of child was terminated
without giving aunt notice of the hearing, was not entitled
to relief on theory that federal standards in this chapter,
which required that "Indian Custodian" was to be given notice
of proceeding to terminate foster care placement, preempted state law
defining legal custody, in light of fact that Congress expressly
left determination of "legal custody" up to state law. State
ex rel. Juvenile Dept., Multnomah County v. England, Or.1982, 640
P.2d 608, 292 Or. 545. Indians 6.6(3)
Requirements
of ICWA apply in determining whether court may terminate parental
rights in Indian child even when Department of Family and
Youth Services (DFYS) is seeking to terminate parental rights of
non-Indian parent. K.N. v. State, Alaska 1993, 856 P.2d 468.
Indians 6.6(1)
5. Revocation of relinquishment of parental rights
Even
assuming that Arizona court had jurisdiction in proceeding for termination
of Indian mother's parental rights and properly declined to refer
proceeding to tribal court, where there was no evidence as
to mother's fitness as a parent or any attempt to
preserve parent-child relationship, Indian mother was entitled to return of
her child when she revoked her relinquishment of parental rights.
Matter of Appeal in Pima County Juvenile Action No. S-903,
Ariz.App.1981, 635 P.2d 187, 130 Ariz. 202, certiorari denied 102
S.Ct. 1644, 455 U.S. 1007, 71 L.Ed.2d 875. Infants 231
Adoptive
father's membership in Mohawk Tribe gave trial court reason to
know that
juvenile could be member of Tribe and could be Indian
child, and, thus, trial court in proceeding to determine whether
juvenile was child in need of care and supervision was
required to give notice to Tribe, even though father testified
that juvenile was eligible for membership, but was not member;
Tribe was arbiter of its membership. In re M.C.P., Vt.1989,
571 A.2d 627, 153 Vt. 275. Indians 6.10;
Indians 32(8)
Indian
status of child who is subject of child custody proceedings
need not be certain in order to trigger provisions of
Indian Child Welfare Act requiring notice to tribe of proceedings
and of its right to intervene; rather, notice is required
whenever court knows or has reason to believe that child
is Indian child. In re Kahlen W., Cal.App. 5 Dist.1991,
285 Cal.Rptr. 507, 233 Cal.App.3d 1414. Indians 6.5
In
proceeding to terminate parental rights of a child born to
native Potawatomi Indian mother and Caucasian father, probate court was
required to serve notice to the Potawatomi Tribe in form
which conformed to the Indian Child Welfare Act. Matter of
D.S., Ind.1991, 577 N.E.2d 572. Indians 6.6(3)
Notice
in parental termination proceedings was sufficient with regard to mother
and Mississippi Band of Choctaw Indians where Department of Social
Services personally
served mother with petition and mailed petition to Mississippi Bank
of Choctaw Indians by registered mail, a return receipt requested.
People ex rel. South Dakota Dept. of Social Services in
Interest of C.H., S.D.1993, 510 N.W.2d 119. Indians 6.6(3)
Notice
of petition to terminate parental rights allegedly mailed to Omaha
Tribe was insufficient to comply with requirements of Indian Child
Welfare Act, absent any showing that Tribe was advised of
its right to intervene. In Interest of J.W., Iowa App.1993,
498 N.W.2d 417. Indians 6.6(3)
Even
though grandmother of Indian children should have received notice of
proceeding in which parental rights of children's father were terminated,
due to fact that grandmother was named respondent at dependency
and neglect level, that issue was rendered moot by fact
that extensive hearing was held on grandmother's petition for custody
and adoptive preference. People in Interest of J.J., S.D.1990, 454
N.W.2d 317. Indians 6.6(3)
Notice
of proceeding concerning dependency and neglect of children enrolled in
Tribe gave Tribe actual notice, even though Tribe did not
receive registered notice, and, thus, Tribe's request to transfer case
to tribal court was untimely, where Tribe orally petitioned for
transfer one year after receiving notice.
Matter of Dependency and Neglect of A.L., S.D.1989, 442 N.W.2d
233. Indians 6.6(3)
Although
Indian tribe in which mother and child were enrolled was
not sent copy of amended petition of dependency and neglect
naming child, no violation of Indian Child Welfare Act occurred,
where child was named in many documents filed with court
and sent to tribe by certified mail; tribe had actual
notice that ongoing petition involved child and there was substantial
compliance with Act and guidelines so as to give court
jurisdiction over child. Matter of B.J.E., S.D.1988, 422 N.W.2d 597.
Indians 6.6(3)
Failure
to give mother's tribe proper notice of dispositional hearing deprived
state court of jurisdiction to terminate her parental rights in
Indian children; notice did not inform tribe of its right
to intervene, and was not sent by registered mail with
return receipt requested. Matter of N.A.H., S.D.1988, 418 N.W.2d 310.
Indians 6.6(3)
Where
notice of pending termination of parental rights proceeding involving two
Indian children was sent to tribe fully one year before
final adjudication took place and tribe did not intervene, fact
that notice came after parents' first court appearance did not
prejudice tribe and thus did not justify setting aside decree
of termination. Matter of S.Z., S.D.1982, 325 N.W.2d 53. Infants 253
Where
notice of tribe of pending termination of parental rights proceeding
involving two Indian children informed tribe of nature of pending
proceeding and circuit court in which it was pending, and
where act referred to in notice itself granted tribe right
to intervene, notice substantially complied with statutory requirements and was
sufficient to put tribe on notice of pending proceeding and
its right to intervene, notwithstanding that notice did not explicitly
state tribe's right to intervene; thus, it was improper to
set aside decree of termination on basis of faulty notice
to tribe. Matter of S.Z., S.D.1982, 325 N.W.2d 53. Infants 198
Under
Indian Child Welfare Act, Indian father was not entitled to
notice of adjudicatory hearing on non-Indian mother's parental rights; hearing
involved only parental rights of mother, and thus father suffered
no prejudice. Matter of S.C., Okla.1992, 833 P.2d 1249. Indians 6.6(3)
An
Indian child's tribe, under the Indian Child Welfare Act, is
not entitled to notice of a proceeding for voluntary termination
of parental rights. Catholic Social Services, Inc. v. C.A.A., Alaska
1989, 783 P.2d 1159, certiorari
denied 110 S.Ct. 2208, 495 U.S. 948, 109 L.Ed.2d 534.
Indians 6.6(3)
Violation
of Indian Child Welfare Act notice provision was cause for
invalidation of termination of parental rights proceeding where district court
had reasonable grounds to believe that children subject to severance
proceeding were or could have been Indian children and failed
to direct notice to tribe or Secretary of Interior in
accordance with Act. In Interest of H.D., Kan.App.1986, 729 P.2d
1234, 11 Kan.App.2d 531. Indians 6.6(3)
Under
Indian Child Welfare Act, notice of any termination of parental
rights proceeding must be provided to parents by registered mail
with return receipt requested unless identity or location of parent
and Indian child's tribe cannot be determined, in which case
notice must be provided to Secretary of Interior in same
manner; notice requirements are mandatory and proceedings may not be
held until at least ten days after parent or Secretary
of Interior has been notified. Matter of L.A.M., Alaska 1986,
727 P.2d 1057. Indians 6.6(3)
Notice
requirement of Indian Child Welfare Act was satisfied where when
State learned name and location of ancestral tribe of mother,
whose parental rights were
sought to be terminated, it wrote to village council in
Alaska requesting council's assistance in determining whether child was eligible
for village membership and advising council that child was ward
of the court and of council's right to intervene in
any stage of the proceedings and State subsequently provided formal
notice by certified mail to council of pendency of termination
proceedings. State ex rel. Juvenile Dept. of Lane County v.
Tucker, Or.App.1985, 710 P.2d 793, 76 Or.App. 673, review denied
717 P.2d 1182, 300 Or. 605. Indians 6.6(3)
Notice requirements of 25 U.S.C.A. § 1912(a), providing that no foster placement proceeding of Indian child can be held unless parent has been given ten days notice by registered mail or, if parent cannot be found, Secretary of State has been notified, were not applicable to mother, and she was not deprived of her right to counsel under the Indian Child Welfare Act by State's failure to notify her of two temporary custody proceedings in which temporary custody was awarded to State, where the proceedings were emergency hearings. D.E.D. v. State, Alaska 1985, 704 P.2d 774.
In
absence of evidence to support a finding that child was
an Indian child, this chapter was inapplicable to proceeding leading
up to the final adoption of the child, and therefore,
trial court was not required to send notice of termination
and foster care proceedings to Indian community, nor was it
required to follow statutory preferences governing placement prior to date
Indian father acknowledged paternity. Matter of Appeal in Maricopa County
Juvenile Action No. A-25525, Ariz.App.1983, 667 P.2d 228, 136 Ariz.
528. Indians 6.10
Trial
court's appointment without notice, of non-Indian successor guardians for three
parentless Indian children was improper; the children's paternal grandparents were
entitled, under this section, to notice of the pending successor
guardian appointment. Duncan v. Wiley, Okla.App.1982, 657 P.2d 1212. Guardian
And Ward 13(3)
Trial
court did not abuse its discretion by refusing to vacate
adoption judgment on grounds that adoptive parents failed to provide
putative father with notice of proceedings; any defect in notice
did not materially prejudice putative father's rights in that trial
court had determined that putative father had notice of preliminary
hearing and in that despite fact that putative father was
living with child's mother within one month of child's birth
and that putative father knew child had been placed for
adoption, putative father failed
for 21 months to take advantage of any means of
protecting his parental rights provided by federal, state, or tribal
law. Matter of Adoption of a Child of Indian Heritage,
N.J.1988, 543 A.2d 925, 111 N.J. 155. Indians 6.10
Indian
Child Welfare Act is jurisdictional and failure to give adequate
notice to tribes divests state court of jurisdiction to terminate
parental rights. In Interest of J.W., Iowa App.1993, 498 N.W.2d
417. Indians 6.6(2)
Indian Child Welfare Act (ICWA) did not confer right to appointed counsel, in dependency proceeding involving Native American children, on their paternal great aunt. In re Jacqueline L., Cal.App. 4 Dist.1995, 39 Cal.Rptr.2d 178, 33 Cal.App.4th 325, review denied and ordered not to be officially published, certiorari denied 116 S.Ct. 386, 516 U.S. 946, 133 L.Ed.2d 308.
Mother
of Indian child subject to custody dispute between parents and
grandmother was entitled to appointment of counsel, contingent on showing
of indigency; Indian Child Welfare Act was applicable to case,
even though it involved intrafamily dispute. In re Custody of
A.K.H., Minn.App.1993, 502 N.W.2d
790, review denied. Indians 6.8
Section
of Indian Child Welfare Act providing for right to court-appointed
counsel in any removal, placement, or termination of parental rights
proceeding was not violated by juvenile court's failure to appoint
counsel for mother and her Indian child during voluntary termination
proceedings, considering that statute was not intended to apply to
voluntary proceedings, and that juvenile court referee advised mother that
counsel would be appointed for her, but she never requested
counsel. B.R.T. v. Executive Director of Social Service Bd. North
Dakota, N.D.1986, 391 N.W.2d 594. Indians 6.6(3)
Indian
father's right to court-appointed counsel during proceeding to terminate parental
rights of non-Indian mother was not violated where father was
notified of his right to counsel on his first appearance
and was appointed counsel by court. Matter of S.C., Okla.1992,
833 P.2d 1249. Indians 6.6(3)
Where,
in proceeding to determine child custody, Indian parents were furnished
separate counsel on day that their affidavit of indigency was
filed in juvenile court, counsel was appointed for parents as
soon as court had determined their indigency status, as this
section requires. State ex rel. Juvenile Dept. of Multnomah County
v. Charles, Or.App.1984, 688 P.2d 1354, 70 Or.App. 10, review allowed
693 P.2d 48, 298 Or. 427, review dismissed 701 P.2d
1052, 299 Or. 341. Indians 6.5
Where
mother, who was enrolled member of Indian tribe, was entitled
to appointment of counsel in child dependency and neglect action,
trial court committed reversible error in failing to appoint counsel
even though mother never requested counsel be appointed. Matter of
M. E. M., Mont.1981, 635 P.2d 1313, 195 Mont. 329.
Infants 205;
Infants 254
Trial
court's failure to appoint counsel in termination of parental rights
case until after child had been adjudicated neglected and petition
to terminate parental rights had been filed did not violate
mother's rights, under state statutes or the Indian Child Welfare
Act; appointment of counsel occurred despite mother's failure to request
attorney or to establish her eligibility for court-appointed counsel, and
counsel had not been appointed at first hearing on neglect
based on determination that mother was not indigent. Matter of
Bluebird, N.C.App.1992, 411 S.E.2d 820, 105 N.C.App. 42. Indians 6.6(3);
Infants 205
In
order to prevail on petition for termination of parental rights
in case involving Indian children, Department of Human Services must
affirmatively establish by clear and convincing evidence that active efforts
have been made to provide remedial services and rehabilitative programs
designed to prevent breakup of Indian family and that such
efforts proved unsuccessful. In re Annette P., Me.1991, 589 A.2d
924. Indians 6.6(3)
Spirit
of Indian Child Welfare Act was fulfilled through actions of
adoptive non-Indian parents to adopt and raise Indian child, which
could be seen as active effort to reunite preexisting Indian
family unit consisting of biological Indian mother, her former husband,
and their three children; Indian mother was considering adoption in
lieu of abortion in attempt to prevent breakup of existing
family when she contacted adoptive parents given fact that former
husband with whom she was attempting reconciliation was not father
of fetus she was carrying when she contacted adoptive parents.
Matter of Adoption of T.R.M., Ind.1988, 525 N.E.2d 298, rehearing
denied, certiorari denied 109 S.Ct. 2072, 490 U.S. 1069, 104
L.Ed.2d 636. Indians 6.10
Trial
court properly applied beyond reasonable doubt standard in determining whether
State had made active efforts through remedial services and rehabilitative
programs to prevent breakup of Indian family, as required by Indian
Child Welfare Act, in action to terminate mother's parental rights;
although trial court failed to refer to beyond reasonable doubt
standard in its finding concerning remedial services, it used that
standard in other findings. People in Interest of E.M., S.D.1991,
466 N.W.2d 168. Indians 6.6(3)
Department
of Social Services provided sufficient remedial services and rehabilitative programs
to prevent disruption of placement of minor Indian children with
their grandmother; attempts were made to help mother overcome her
chemical dependency and alcoholism, but even after mother's rights were
voluntarily terminated, grandmother permitted her, drunk or sober, to have
access to children. People in Interest of J.J., S.D.1990, 454
N.W.2d 317. Indians 6.6(1)
Evidence
consisting of testimony of social worker who was in contact
with American Indian mother on a monthly basis that mother
had no interest in pursuing goal of reuniting with her
children supported finding that county's social welfare efforts to avoid
a family breakup were "active" as required by the Indian
Child Welfare Act. Matter of Welfare of T.J.J., Minn.App.1985, 366
N.W.2d 651. Indians 6.6(3)
Evidence,
which showed that while child was placed with foster parent
and later with father, mother made no effort to exercise
consistent visitation, which indicated that mother's paint-huffing addiction was cause
of her inability to function as parent, and which indicated
that she spurned help and chose to deny addiction, was
sufficient to support finding that active efforts were made to
prevent breakup of Indian family before termination of mother's parental
rights was sought, as required by this chapter. People in
Interest of S. R., S.D.1982, 323 N.W.2d 885. Indians 6.6(3)
Evidence
supported finding, in Child in Need of Aid (CINA) proceeding
for termination of father's parental rights respecting his Indian children,
that reasonable efforts had been made to reunite family and
that those efforts had proven unsuccessful; father refused to follow
examining psychiatrist's recommendations as outlined in treatment plan or cooperate
in setting up alternative plan and father repeatedly denied having
mental problems and resisted intervention of Department of Family and
Youth Services (DFYS). K.N. v. State, Alaska 1993, 856 P.2d
468. Indians 6.6(3)
Foster
care placement of half-Indian children was not subject to invalidation
for failure to comply with provision of Indian Child Welfare
Act requiring that state provide rehabilitative programs or remedial services
to prevent breakup of
Indian family where, after non-Indian mother's parental rights in children
were terminated, two different home studies were conducted, neither of
which recommended that children be placed with Indian father, state
suggested service plan in which father was required to pay
minimal amount of child support and to visit children to
become acquainted with them, and father visited children only once
during pendency proceedings. Matter of S.C., Okla.1992, 833 P.2d 1249.
Indians 6.6(1)
Drug
and alcohol treatment program services, anger management and sex offender
treatment services provided to Indian father, whose parental rights were
being terminated, were appropriate and there was thus no violation
by administrative agency of Indian Child Welfare Act section requiring
offering of remedial services and rehabilitation programs designed to prevent
breakup of Indian family. State ex rel. Juvenile Dept. of
Multnomah County v. Woodruff, Or.App.1991, 816 P.2d 623, 108 Or.App.
352. Indians 6.6(1)
Even
if Indian Child Welfare Act applied to children who were
subject of proceeding to terminate parental rights, record and trial
court's findings were sufficient to satisfy requirement of Act that
state prove beyond a reasonable doubt that continued custody of
children by natural mother was likely to result in serious
emotional or physical damage to children and that efforts had
been made
to provide remedial services and rehabilitative programs designed to prevent
breakup of Indian family and that those efforts proved unsuccessful.
In re Smith, Wash.App. Div. 1 1987, 731 P.2d 1149,
46 Wash.App. 647, review denied. Indians 6.6(3)
Within purview of subsec. (d) of this section governing preventive measures in awarding custody of Indian child, "to effect" language refers to legal proceedings required to accomplish foster care placement of, or termination of parental rights to Indian child, not to act of taking physical custody of child. State ex rel. Juvenile Dept. of Multnomah County v. Charles, Or.App.1984, 688 P.2d 1354, 70 Or.App. 10, review allowed 693 P.2d 48, 298 Or. 427, review dismissed 701 P.2d 1052, 299 Or. 341.
In
proceeding to determine child custody, where State pointed to testimony
peppered throughout hearing that indicated that some remedial efforts had
been made to prevent breakup of Indian family which were
arguably unsuccessful, diffuse evidence to which State pointed did not
amount to affirmative showing that active efforts had been made
to provide remedial services and rehabilitative programs to prevent the
breakup of the Indian family and that those efforts had
been unsuccessful as required by this section. State ex rel.
Juvenile Dept. of Multnomah County v. Charles, Or.App.1984, 688 P.2d
1354, 70
Or.App. 10, review allowed 693 P.2d 48, 298 Or. 427,
review dismissed 701 P.2d 1052, 299 Or. 341. Indians 6.6(3)
Finding
in state adoption proceeding, that active efforts were made to
provide remedial services and rehabilitative programs as required under Indian
Child Welfare Act, was supported by evidence that natural parents
failed to show any interest whatsoever in child and natural
mother removed child from state making remedial or rehabilitative programs
futile. C.E.H. v. L.M.W., Mo.App. W.D.1992, 837 S.W.2d 947, rehearing
and/or transfer denied. Indians 6.10
10. Qualified expert witness--Generally
Evidence
presented to trial court in proceeding for adjudication of Indian
child as deprived did not include any testimony satisfying requirement
of qualified expert witness testimony, and adjudication of child as
deprived therefore had to be reversed and remanded for reconsideration.
Matter of N.L., Okla.1988, 754 P.2d 863. Indians 6.6(3)
There
was no abuse of discretion in trial court's determination that
witness was a qualified expert for purposes of statute [25
U.S.C.A. § 1912(e)],
which requires that qualified expert witness testify that continued custody
of child
by parent is likely to result in serious emotional or
physical damage to child before there will be foster placement
of Indian child, given witness education, training, and work experience
in the field of sexual abuse of children. Matter of
D.C., Alaska 1986, 715 P.2d 1. Infants 173.1
Use
of plural form "expert witnesses" in the Indian Child Welfare
Act does not mean that testimony of more than one
qualified expert witness is required in child custody-foster care placement
proceedings under the Act, since federal rules of construction provide
that plural and singular are interchangeable. D.A.W. v. State, Alaska
1985, 699 P.2d 340. Indians 6.6(3)
In proceeding to determine custody of Indian child, experienced social workers who testified for State who did not possess specialized knowledge of social or cultural aspects of Indian life as required by this section were not qualified experts even though both possessed expertise beyond normal social worker qualifications. State ex rel. Juvenile Dept. of Multnomah County v. Charles, Or.App.1984, 688 P.2d 1354, 70 Or.App. 10, review allowed 693 P.2d 48, 298 Or. 427, review dismissed 701 P.2d 1052, 299 Or. 341.
In
child dependency and neglect proceeding involving child of mother who
was enrolled member of Indian tribe, trial court was required
to determine proper foundation
for qualified expert witness. Matter of M. E. M., Mont.1981,
635 P.2d 1313, 195 Mont. 329. Infants 207
Experienced
psychiatrist was "qualified expert witness" in state adoption proceedings under
Indian Child Welfare Act, since psychiatrist had expertise beyond normal
social worker's qualifications. C.E.H. v. L.M.W., Mo.App. W.D.1992, 837 S.W.2d
947, rehearing and/or transfer denied. Evidence 536
11. ---- Foster care placement, qualified expert witness
Prospective
adoptive parents met their burden, under Indian Child Welfare Act,
to produce testimony of qualified expert that father's continued custody
of Native American child was likely to result in serious
emotional damage by producing testimony of Chief Appellate Judge of
Ute Indian Tribe, who held masters' degree in social work
and was pursuing doctorate, that child had bonded with the
adoptive parents and that permanent removal of child from the
adoptive home would likely result in serious emotional harm. Matter
of Baby Boy Doe, Idaho 1995, 902 P.2d 477, 127
Idaho 452. Indians 6.10
12. ---- Termination of parental rights, qualified expert witness
In
proceeding to terminate parental rights of Indian child, it was
error to fail to inquire of expert witnesses as to
their specific qualifications related to placement of native American children.
Matter of D.S., Ind.1991, 577 N.E.2d 572. Indians 6.6(3)
Determining
Indian social workers qualified as expert witnesses on likelihood of
emotional damage in termination of parental rights proceeding under the
Indian Child Welfare Act was not abuse of discretion; one
social worker had associate of arts in child development, bachelor
of science in human services, master's degree in social work,
had reared three children in tribal tradition, had approximately 14
years experience in social work field, and was certified as
social worker by state, while second expert witness had bachelor's
degree, had reared eight children in tribal tradition, was certified
as social worker by State, and was one of the
drafters of the Act at the federal level. In re
Interest of D.S.P., Wis.1992, 480 N.W.2d 234, 166 Wis.2d 464.
Indians 6.6(3)
Under
Indian Child Welfare Act, qualified expert testimony is required in
parental rights termination case on issue of whether serious harm
to Indian child is likely to occur if child is
not removed from home. In re Interest of C.W., Neb.1992,
479 N.W.2d 105, 239 Neb. 817. Indians 6.6(3)
Evidence
supported finding that clinical psychologist was qualified to testify as
expert in proceedings for termination of mother's parental rights on
issue of whether serious harm to children was likely to
occur if they were not removed from mother's home, even
though psychologist did not have experience in Indian way of
life. In re Interest of C.W., Neb.1992, 479 N.W.2d 105,
239 Neb. 817. Evidence 546;
Indians 6.6(3)
Individual
who had substantial experience relative to child and family services
for Indians and individual who was a professional with substantial
education and experience in psychology were "qualified expert witnesses" within
requirements of Indian Child Welfare Act for termination of parental
rights proceeding. Matter of Kreft, Mich.App.1986, 384 N.W.2d 843, 148
Mich.App. 682. Evidence 536
Trial
court properly exercised its broad discretion in deciding that psychologists
who provided expert testimony in termination of parental rights proceeding
and who had each had course work in Indian culture
were qualified as experts under Indian Child Welfare Act. Matter
of Welfare of T.J.J., Minn.App.1985, 366 N.W.2d 651. Evidence 537
Sufficient
evidence existed as to qualifications of both social worker and
director of center for children and parents involved with child
abuse to permit them to testify as expert witnesses in
dependency and parental rights termination proceeding under this section in
view of testimony that social worker had worked as such
for over four years, had bachelor of arts degree in
social work and had contact with Indians on regular basis,
and testimony that director of shelter and resource center had
bachelor of science degree in social work and year towards
her master's degree and that approximately 30 percent of children
utilizing center were Indians. Matter of K.A.B.E., S.D.1982, 325 N.W.2d
840. Evidence 545
Witness
was qualified expert witness, for purposes of Indian Child Welfare
Act (ICWA) requirement of expert testimony in proceeding to terminate
parental rights with regard to Native American child; witness was
a Ute Indian who had masters degree in social work
and was pursuing doctorate, at time of trial he was
chief appellate judge for Ute Indian tribe, he had been
personally involved in several ICWA appeals, he had worked in
foster and adoption cases as a counselor on his reservation,
he had placed Indian children outside their homes when the
children were abused, neglected, and abandoned, he had lived on
father's reservation for a time, he had interviewed the child
in this case, and he had observed the child's bonding
with the adoptive parents. Matter of Baby
Boy Doe, Idaho 1995, 902 P.2d 477, 127 Idaho 452.
Evidence 537;
Indians 6.6(3)
Administrative
agency provided appropriate expert testimony as required by Indian Child
Welfare Act in proceeding to terminate Indian father's parental rights;
counseling psychologist, himself an Indian who specialized in Indian culture
and who had approximately 20 years experience in treating Indian
families and adolescents, reviewed children's files and testified. State ex
rel. Juvenile Dept. of Multnomah County v. Woodruff, Or.App.1991, 816
P.2d 623, 108 Or.App. 352. Indians 6.6(3)
When
cultural bias is clearly not implicated, the proof required by
Indian Child Welfare Act for termination of parental rights may
be provided by the statutorily required "expert witnesses" who do
not possess special knowledge of Indian life; hence, where issue
was whether continued custody by mother would result in serious
emotional harm to child due to mother's mental illness and
there was no dispute about mother's condition or its severity,
the State was not required to present expert witnesses possessed
of special knowledge of Indian life to establish that mother's
continued custody would be likely to result in serious emotional
or physical damage. State ex rel. Juvenile Dept. of Lane
County v. Tucker, Or.App.1985, 710 P.2d 793, 76 Or.App. 673, review
denied 717 P.2d 1182, 300 Or. 605. Indians 6.6(3)
In
proceeding for permanent deprivation of legal father's parental rights, trial
court did not abuse its discretion in determining that witnesses,
one of whom had been employed as caseworker supervisor of
foster care program in Indian center and other who had
been mental health counselor and foster care caseworker for tribe
and Indian center, were qualified expert witnesses for purposes of
this chapter. In re Welfare of Fisher, Wash.App.1982, 643 P.2d
887, 31 Wash.App. 550. Evidence 536
Failure
of experts presented by Cabinet for Human Resources to have
special knowledge of Indian life was not fatal to admission
of their testimony in action to involuntarily terminate parental rights
under Indian Child Welfare Act of 1978. D.W.H. v. Cabinet
for Human Resources, Ky.App.1986, 706 S.W.2d 840. Indians 6.6(3)
Failure,
at dispositional stage of dependency and parental rights termination proceeding
under this chapter, to require social study report was not
error where social worker was present and made her recommendation
and, following her recommendation,
was cross-examined by natural mother's counsel. Matter of K.A.B.E., S.D.1982,
325 N.W.2d 840. Indians 6.6(3)
Clear
and convincing evidence that continued custody of Indian children by
their father was likely to result in their serious emotional
or physical damage required placement of neglected children with their
maternal grandmother in Alaska pursuant to Indian Child Welfare Act;
father had been diagnosed as suffering from acute paranoia, and
had been denied continued supervised visitation with the children because
his visitation so disrupted the children and their foster care
parents that children's foster care placement had to be repeatedly
changed. Matter of Oscar C., Jr., N.Y.Fam.Ct.1990, 559 N.Y.S.2d 431,
147 Misc.2d 761, affirmed 600 N.Y.S.2d 957, 192 A.D.2d 280,
leave to appeal denied 625 N.E.2d 591, 605 N.Y.S.2d 6,
82 N.Y.2d 660. Indians 6.6(3)
Evidence
supported determination under the Indian Child Welfare Act that continued
custody of child by parent was likely to result in
serious emotional or physical damage to child, so as to
support termination of parental rights; parents did not have physical
custody of child at time of trial, and social worker
testified that custody of child by either parent would result
in definite emotional damage and possible serious physical harm to
child and that it would be traumatic experience for child
to be returned to custody of parents. In re Interest
of D.S.P., Wis.1992, 480 N.W.2d 234, 166 Wis.2d 464. Indians 6.6(3)
Danger
of serious emotional or physical harm to child was not
only likely but inevitable, for purposes of the Indian Child
Welfare Act section proscribing termination of parental rights in absence
of determination supported by evidence beyond reasonable doubt that continued
custody of Indian child by parent or Indian custodian is
likely to result in serious emotional or physical damage to
child [25 U.S.C.A. § 1912(f)],
where mother was chronic user of alcohol and inhalants and
had severe borderline personality disorder. People in Interest of P.B.,
S.D.1985, 371 N.W.2d 366. Indians 6.6(1)
Proof
that mother's continued custody of Indian child was likely to
result in serious emotional or physical damage to child was
beyond a reasonable doubt, as required for termination of her
parental rights under this chapter, where mother had rarely seen
child in two years since her birth, where child had
special needs, and where mother showed no sense of responsibility
or significant degree of interest in child. People in Interest
of S. R., S.D.1982,
323 N.W.2d 885. Indians 6.6(3)
Where
Indian mother was unresponsive to efforts to assist her and
where child would be irreparably damaged by further contact with
mother in parental relationship, trial court, which gave child's father,
also an Indian, sole custody, care and control of child
based on finding that father was providing child with appropriate
environment, had no reasonable alternative other than termination of mother's
parental rights. People in Interest of S. R., S.D.1982, 323
N.W.2d 885. Indians 6.6(1)
In
proceeding for termination of mother's parental rights, evidence of conduct
of mother and other persons in and about children's residence
supported trial court's finding that children were neglected and dependent.
Matter of J. L. H., S.D.1982, 316 N.W.2d 650. Infants 179
Under
this chapter, no termination of parental rights to an Indian
child may be ordered in the absence of a determination
supported beyond a reasonable doubt, including testimony of qualified expert
witnesses, that the continued custody of the child by the
parent or Indian custodian is likely to result in serious
emotional or physical damage to the child. Matter of R.
M. M., Minn.1982, 316 N.W.2d 538. Infants 178
Testimony
of social worker and psychiatrist that mother's condition was a
serious threat to child's emotional and physical health fulfilled requirement
of both this chapter and MSA § 260.221(b)(4)
stating that parental rights may be terminated if parents are
unfit by reason of intoxication or habitual use of narcotic
drugs. Matter of R. M. M., Minn.1982, 316 N.W.2d 538.
Infants 155
In
child custody case in which Indian Child Welfare Act (ICWA)
standard for foster care placement applied, evidence supported finding that
continued custody of children by mother was likely to result
in serious emotional or physical damage to children, warranting temporary
placement of children with social services agency; although evidence that
one child was sexually abused was somewhat equivocal, majority of
that child's doctors and counselors concluded that she was traumatized
child, foster mother and social worker testified that mother did
not appear attentive to second child, and chemical dependency counselor
testified that mother had not completed aftercare program and that
another chemical dependency evaluation had been recommended. Matter of L.F.,
Mont.1994, 880 P.2d 1365, 266 Mont. 461. Indians 6.6(3)
Evidence
supported finding, in Child in Need of Aid (CINA) proceeding
for termination of father's parental rights respecting his Indian children,
that custody by father was likely to result in serious
emotional or physical harm to children; examining psychiatrist and children's
therapist considered that father's paranoia and related conduct would emotionally
harm children and there were numerous reports of excessive and
inappropriate discipline. K.N. v. State, Alaska 1993, 856 P.2d 468.
Indians 6.6(3)
Expert
testimony that child was special needs child who would not
develop properly, unless provided special education, placement in developmental preschool,
and constant attention at home, and evidence that father had
failed to obtain suitable residence, and had been unable and
unwilling to comply with court-approved treatment plans, was sufficient to
sustain People's burden of proving that father's continued custody of
child was likely to result in serious emotional or physical
damage to child in proceeding to terminate father's parental relationship
with child pursuant to federal Indian Child Welfare Act. People
in Interest of C.A.J., Colo.App.1985, 709 P.2d 604. Indians 6.6(3)
Finding
that natural parents abandoned and neglected Indian child was supported
by evidence that natural mother lacked parenting skills, neither natural
parent wanted
to keep child, child was with natural mother only a
few months, child had rash resulting from yeast infection and
flea bites when delivered for adoption, and neither natural parent
had attempted to visit child after being placed in adoptive
home. C.E.H. v. L.M.W., Mo.App. W.D.1992, 837 S.W.2d 947, rehearing
and/or transfer denied. Indians 6.6(3)
Termination
of parental rights of Indian child based on state law
evidentiary standard that termination be based on "clear and convincing
evidence" that termination of parental rights is in the best
interests of the child, rather than under federal law which
requires proof beyond reasonable doubt that mother's parental rights should
be terminated, was error. Matter of D.S., Ind.1991, 577 N.E.2d
572. Indians 6.6(3)
Dual
burden of proof was appropriate in proceedings for involuntary termination
of parental rights to child who was enrolled member of
Indian tribe that involved both the Indian Child Welfare Act
and Wisconsin's Children's Code; the federal Act did not mandate
using beyond reasonable doubt standard for proof of abandonment under
Wisconsin provision, and Act requirements for termination of parental rights
should be governed by the Act's standard of proof,
while additional state law safeguards should be governed by burden
of proof mandated by state law. In re Interest of
D.S.P., Wis.1992, 480 N.W.2d 234, 166 Wis.2d 464. Indians 6.6(3);
Infants 178
State
met its burden of proving beyond reasonable doubt that best
interests of Indian children required termination of mother's parental rights
by reason of abuse of intoxicating liquor and drugs and
failure of reasonable efforts to correct problems. In re Interest
of C.W., Neb.1992, 479 N.W.2d 105, 239 Neb. 817. Indians 6.6(3)
Trial
court terminating parental rights of Caucasian mother to Indian child
erroneously applied clear and convincing burden of proof to standard
that continued custody was likely to result in serious emotional
or physical damage to child and erroneously applied reasonable doubt
burden of proof to standard that only reasonable alternative in
interest of child was termination of parental rights; rather, parental
rights could not be terminated unless it was shown beyond
reasonable doubt that continued custody was likely to result in
serious emotional or physical damage to child. Matter of N.S.,
S.D.1991, 474 N.W.2d 96. Indians 6.6(3)
Party
to proceeding who seeks to invoke provision of Indian Child
Welfare Act has
burden to show Act applies in proceedings. In re Interest
of J.L.M., Neb.1990, 451 N.W.2d 377, 234 Neb. 381. Indians 6.5
Trial
court correctly applied clear-and-convincing standard of proof in determining whether
to terminate mother's parental rights, rather than standard set forth
in Indian Child Welfare Act [Indian Child Welfare Act of
1978, § 2
et seq., 25 U.S.C.A. § 1901
et seq.], requiring evidence beyond reasonable doubt that continued custody
of child by parent is likely to result in serious
emotional physical damage to child, where evidence was unclear about
whether mother and child were members of or were eligible
for membership in Indian tribe, and tribal court refused to
enter such finding. Matter of B.R.B., S.D.1986, 381 N.W.2d 283.
Indians 6.6(3)
Department
of Social Services had satisfied its burden of proving beyond
reasonable doubt that it had made active efforts to provide
remedial services and rehabilitative programs to prevent breakup of Indian
family, and that such efforts had proved unsuccessful, where the
Department attempted to educate mother in childbearing before birth, its
efforts were continued after birth, but mother spurned such efforts
by returning to deleterious environment of her mother's home, and
Department had no success in subsequent efforts to assist mother
in developing her maternal skills and overcoming her alcohol and chemical
addictions; thus, Indian mother's parental rights could be terminated. People
in Interest of P.B., S.D.1985, 371 N.W.2d 366. Indians 6.6(3)
In
proceeding to terminate parental rights to Indian child, probate court
erred in applying clear and convincing evidence standard, contrary to
higher "beyond a reasonable doubt" standard required by Indian Child
Welfare Act. Matter of Morgan, Mich.App.1985, 364 N.W.2d 754, 140
Mich.App. 594. Indians 6.6(3)
Standard
of proof necessary for adjudication of dependency and termination of
parental rights with respect to Indian children under this chapter
is clear and convincing evidence. Matter of K.A.B.E., S.D.1982, 325
N.W.2d 840. Indians 6.6(3)
Under
this chapter, dependency and neglect must be proved by clear
and convincing evidence in order to best protect interest of
child, which is of paramount importance at adjudicatory hearing. People
in Interest of S. R., S.D.1982, 323 N.W.2d 885. Indians 6.6(1);
Indians 6.6(3)
Clear
and convincing evidence standard of proof for termination of parental rights
of American Indian mother was inadequate as subsec. (f) of
this section required determination, supported by "evidence beyond a reasonable
doubt," that continued custody of child was likely to result
in serious emotional or physical damage to the child. Matter
of J. L. H., S.D.1980, 299 N.W.2d 812. Infants 178
In
order to terminate parental rights of Indian parent, evidence must
indicate beyond a reasonable doubt that continued custody of child
by parent is likely to result in serious emotional or
physical damage to child; however, in order to place child
in foster care temporarily, lesser clear and convincing burden is
used to protect best interests of children. Matter of L.F.,
Mont.1994, 880 P.2d 1365, 266 Mont. 461. Indians 6.6(3)
Trial
court in a parental rights termination proceeding conducted pursuant to
federal Indian Child Welfare Act [Indian Child Welfare Act of
1978, § 102(f),
25 U.S.C.A. § 1912(f)]
must apply a reasonable doubt standard of proof in determining
whether continued custody of child by parent or Indian custodian
is likely to result in serious emotional or physical damage
to child, but as to additional findings mandated by state
law [AS 47.10.080(c)(3)], trial court must apply a clear and
convincing standard of proof to determine whether child is in
need of aid as a result of parental conduct and
whether parental conduct is
likely to continue. Matter of J.R.B., Alaska 1986, 715 P.2d
1170. Indians 6.6(3)
Referrals
provided to Department of Social Services were properly allowed into
evidence in dependency and parental rights termination proceeding under this
chapter pursuant to business records hearsay exception, notwithstanding that children's
natural mother was thereby precluded from cross-examining each individual who
made particular referral. Matter of K.A.B.E., S.D.1982, 325 N.W.2d 840.
Indians 6.6(3)
In
proceedings alleging neglect of children and seeking termination of parental
rights, neither doctrine of res judicata nor collateral estoppel precluded
introduction of evidence originating prior to original adjudication of children
as neglected or dependent children whereunder mother had signed probationary
agreement in which she agreed, among other things, to maintain
suitable home for her children; furthermore, court could take judicial
notice of prior adjudication. Matter of J. L. H., S.D.1980,
299 N.W.2d 812. Evidence 43(1);
Infants 232
Documentary
evidence of doctors' evaluations of mother, when doctors themselves did
not testify, was nevertheless admissible under provision of federal Indian
Child Welfare Act [Indian Child Welfare Act of 1978, § 102(c),
25 U.S.C.A. § 1912(c)]
giving each party to a parental termination proceeding a right
to examine all reports or other documents filed with court
upon which any decision with respect to proceeding may be
based. Matter of J.R.B., Alaska 1986, 715 P.2d 1170. Indians 6.6(3)
In proceedings for termination of parent-child relationship, testimony concerning statements made by out-of-court declarants regarding paternity of child at issue, necessary to determine if child fell within the definition "Indian child" under par. (4) of section 1903 of this title were not offered to prove truth of matter asserted, i.e. paternity, and were admissible. Matter of R.M.B., Mont.1984, 689 P.2d 281, 213 Mont. 29.
17. Weight and sufficiency of evidence
Evidence
supported termination of parental rights of Indian parents; mother had
history of chronic alcoholism and unemployment, four youngest children had
probable fetal alcohol effects due to drinking during pregnancy, mother
would leave children with inappropriate caretakers in order to drink,
mother demonstrated
lack of interest in children, father physically abused mother, and
children had been in foster care for a considerable period
of time. In Interest of J.W., Iowa App.1995, 528 N.W.2d
657. Indians 6.6(1)
Evidence
beyond reasonable doubt supported finding that Department of Social Services
(DSS) consistently attempted to provide broad range of remedial services
to parents, but that such efforts were futile so that
termination of parental rights was least restrictive alternative in best
interest of Native American child; mental illness of both parents
and substance abuse by father rendered parents unable to provide
for their own basic needs, and unable to provide for
needs of child. People in Interest of A.R.P., S.D.1994, 519
N.W.2d 56. Infants 178
Filing
of certified mail receipt as to notice to Indian tribe
of termination of parental rights hearing was not acceptable proof
of service of notice by mail; no copy of what
was mailed was attached, no affidavit was filed verifying what
was mailed. In Interest of J.W., Iowa App.1993, 498 N.W.2d
417. Indians 6.6(3)
Sufficient
evidence supported termination of grandmother's custodial rights in two minor
Indian children; one child was raped in grandmother's home while
in grandmother's
custody while grandmother was intoxicated, and qualified experts testified that
continued custody of children by grandmother was likely to result
in serious emotional or physical damage to children. People in
Interest of J.J., S.D.1990, 454 N.W.2d 317. Indians 6.6(3)
Clear
and convincing evidence standard applied in determining whether probate court
properly assumed jurisdiction over children in neglect proceeding, where children
were members of Indian tribe, making Indian Child Welfare Act
applicable. In re Jacobs, Mich.1989, 444 N.W.2d 789, 433 Mich.
24. Indians 6.6(2)
Evidence
established that state made exhaustive effort to keep family together
as required under state law and Indian Child Welfare Act
prior to termination of parental rights; although family social worker
had difficulty coordinating and making available various resources due to
parents' nomadic lifestyle, Department of Social Services provided family with
food, shelter, and medical treatment, as well as counseling services,
over period of years. Matter of S.D., S.D.1987, 402 N.W.2d
346. Indians 6.6(3)
Evidence,
that total amount of time Indian mother spent visiting her
Indian child between October 1983 and June 1984 was a
little over two hours, with mother
missing or canceling visits on several occasions, that mother was
unable to provide court with explanation of why she failed
to visit her son, that expert witnesses concluded lack of
contact had destroyed parent-child bond, and that experts agreed there
was little likelihood mother's behavior would change and serious physical
or emotional damage would occur to child if he were
returned to mother's custody, supported decision to terminate mother's parental
rights on basis of her abandonment of child. D.E.D. v.
State, Alaska 1985, 704 P.2d 774. Indians 6.6(3)
Provision
of Indian Child Welfare Act requiring proof beyond reasonable doubt
of likely serious emotional or physical damage to child in
order to terminate parental rights does not require that state
statutory grounds to terminate parental rights be proved beyond reasonable
doubt; rather, dual burden of proof is created in which
state provisions and federal provisions must be satisfied separately, with
state grounds for termination supported by clear and convincing evidence
and federal grounds proven beyond reasonable doubt. Matter of Bluebird,
N.C.App.1992, 411 S.E.2d 820, 105 N.C.App. 42. Indians 6.6(3)
Evidence
of medical neglect of child, parents' alcohol abuse and suicide
attempts, and unstable home environment, when considered together, was sufficient
to support determination that continued custody of child by parents
was likely to result in serious emotional or physical damage
to her beyond reasonable doubt, so that parental rights could
be involuntarily terminated pursuant to Indian Child Welfare Act of
1978. D.W.H. v. Cabinet for Human Resources, Ky.App.1986, 706 S.W.2d
840. Indians 6.6(3)
Where
it was impossible to determine, under record as presented, whether
issue of applicability of provisions of this chapter which would
entitle natural mother, an Indian, to protection of a jury
instruction utilizing standards of clear and convincing evidence in deprived
child action was raised prior to trial, and transcript did
not establish natural mother's status as an Indian sufficient to
bring her within ambit of such provisions, trial court did
not err in instructing jury to use standard of preponderance
of evidence. Matter of J. B., Okla.1982, 643 P.2d 306.
Infants 209
In
parental rights termination proceeding, pleadings, evidence, statements of counsel, statements
of trial court, and findings supported conclusion that determination
was made, as required by this chapter, that children involved
were Indians, notwithstanding absence of formal finding to such effect.
Matter of K.A.B.E., S.D.1982, 325 N.W.2d 840. Indians 6.6(3)
Substantial
and competent evidence must support trial court's finding, in proceeding
to terminate parental rights to Native American child, that adequate
remedial efforts were made. Matter of Baby Boy Doe, Idaho
1995, 902 P.2d 477, 127 Idaho 452. Indians 6.6(3)
Where
requirements of the Indian Child Welfare Act were complied with,
failure of counsel appointed to represent mother in termination proceedings
to argue that the Act was applicable was not a
cause for reversal of the termination of the mother's rights.
V.F. v. State, Alaska 1983, 666 P.2d 42. Infants 253
If
there has been inadequate notice to determine whether Indian Child
Welfare Act (ICWA) is applicable to children involved in proceedings
to terminate parental
rights, remand with instructions to follow ICWA notification procedures is
required. People ex rel. South Dakota Dept. of Social Services
in Interest of C.H., S.D.1993, 510 N.W.2d 119. Indians 6.6(3)
25 U.S.C.A. § 1912, 25 USCA § 1912
Approved 07-28-05