burden of proof

Footnote in Indiana Court of Appeals Child Welfare Case

Kate Fort
indianaopinionDownload

This case is also unreported, and not notable for any ICWA holding except for footnote 4, which highlights how ICWA is USUALLY challenged:

4 Again, DCS alleges Parents have waived this issue for failure to raise it below. Parents did argue to the juvenile court during closing argument that the standard of proof should be beyond a reasonable doubt. See Tr., Vol. 2 at 95. They did not, however, offer any basis for that assertion, least of all a state or federal constitutional basis. As DCS points out, in order to properly preserve an issue for appeal, “[a]t a minimum, a party must show that it gave the trial court a bona fide opportunity to pass upon the merits of the claim before seeking an opinion on appeal.” Endres v. Ind. State Police, 809 N.E.2d 320, 322 (Ind. 2004). The juvenile court did not have that opportunity below.


Although we consider Parents’ state due process claim notwithstanding waiver for the same reason we exercised our discretion to decide the jury trial issue, supra n.2, we decline to consider the waived federal equal protection claim. Parents’ equal protection argument is based on the fact that the Indian Child Welfare Act provides that parental rights of Native Americans may be terminated only upon evidence beyond a reasonable doubt. See 25 U.S.C. § 1912(f). The right to a jury in juvenile proceedings and the scope of the state due process clause are matters of settled law in Indiana. But Indiana courts have not had occasion to consider whether the differing state and federal standards violate equal protection, and we will not undertake that analysis when it was not developed at all in the juvenile court and is raised for the first time on appeal.

Waiver notwithstanding, we note that the United States Supreme Court has routinely rejected claims that laws that treat Native Americans as a distinct class violate the equal protection rights of non-Native Americans, see, e.g., United States v. Antelope, 430 U.S. 641, 646 (1977) (concluding “federal regulation of Indian affairs is not based upon impermissible classifications”), and states that have had occasion to consider whether their clear and convincing standard violates the equal protection clause have found no violation, see, e.g., Matter of M.K., 964 P.2d 241, 244 (Okla. Civ. App. 1998) (holding heightened burden of proof required for termination of Native American parental rights is “rationally tied to Congress’ responsibility for policy toward [Native American] families” and lower state standard did not violate non-Native American father’s right to equal protection).

In other words, the Non-Native parents would like to have the same protections ICWA provides Native families.

ICWA Case Out of Alaska Supreme Court

Kate Fort

Here.

Parents appeal from a superior court’s order that the Office of Children’s Services (OCS) had satisfied the Indian Child Welfare Act’s (ICWA) requirements authorizing the removal of their daughter, an Indian child, from their custody. Because
the court relied on information that was not in evidence to make the required ICWA removal findings, we vacate the order authorizing removal.

Alaska ICWA Case on QEW and Guardianship

Kate Fort

Here.

Ultimately the question turned on whether a long term guardianship is a foster care placement or a termination of parental rights (which have differing standards of proof). The court found it was a foster care placement, and required the testimony of a qualified expert witness.

Published Notice Case out of the Colorado Court of Appeals

Kate Fort

In re LL

The Court uses the federal regulations and guidelines to determine each participant’s role in inquiry and notice, and remands for proper notice.

Unfortunately, the Court then goes on to hold that the higher standard of proof for a foster care placement under ICWA does not need to be made at adjudication (interestingly, Colorado is one of the few states that still has jury trials for child welfare proceedings). While the Court is correct that ICWA is “silent” on adjudicatory hearings, it does not make clear when the lower court should make the higher burden of proof finding. This is one of the issues in applying the federal law to individual state proceedings–adjudication with a jury makes the most sense for applying all of the protections of ICWA. Adjudication is where the judge (or jury) decides whether the state has the evidence that “warrants intrusive protective or corrective state intervention into the familial relationship” Id. at 22. While it might not be the point where the child is put into foster care, it is often AFTER the child has been placed in foster care. So if the higher standard for foster care placement isn’t applied at the emergency/24/48/shelter care hearing, and it’s not applied at the adjudicatory hearing, when, exactly, is it applied?

Burden of Proof ICWA Case out of South Dakota

Kate Fort

Here.

In this case, Mother challenged the QEW and the burden of proof requirement for termination of parental rights. The concurrence is particularly useful:

The circuit court in this case found many of the facts beyond a reasonable doubt where that was not the correct standard of proof and failed to find certain facts beyond a reasonable doubt where applying that high standard is required. This may indicate that confusion exists on the applicable standards of proof in abuse or neglect proceedings, including those where ICWA applies. I write specially to clarify the standards of proof by which the court must issue certain findings.

The concurrence also explains that South Dakota is a state that requires active efforts to be proven beyond a reasonable doubt in a termination of parental rights. Contra State of New Mexico v. Yodell. B. (N.M. Ct App. 2015) 

Published Burden of Proof ICWA/MIFPA Case out of Michigan Court of Appeals

Kate Fort

Here.

As set forth above, the relevant provisions of the ICWA and the MIFPA are essentially identical; that is, each requires proof by “clear and convincing evidence” to remove an Indian child and place him or her into foster care, 25 USC § 1912(e), MCL 712B.15(2); proof sufficient to satisfy the trial court that active efforts have been made to terminate parental rights, 25 USC § 1912(d), MCL 712B.15(3); and proof “beyond a reasonable doubt” that continued custody will harm the child, 25 USC § 1912(f); MCL 712B.15(4). Thus, as with its federal counterpart, the Legislature, in enacting the MIFPA, set forth specific evidentiary standards in MCL 712B.15(2) and (4), while declining to do so in MCL 712B.15(3). The inevitable conclusion, therefore, is that, like Congress, the Legislature intended for the “default” evidentiary standard applicable in child protective proceedings—i.e. clear and convincing evidence—to apply to the findings required under MCL 712B.15(3) as to whether “active efforts” were made to prevent the breakup of the Indian family. Accord In re JL, 485 Mich. at 318–319; In re Roe, 281 Mich. at 100–101. Therefore, because a default standard of proof applies to MCL 712B.15(3), it is not unconstitutionally vague.

 

ICWA Case out of Texas Court of Appeals Declines to Extend Baby Girl

Kate Fort1 Comment

Here is the opinion.

The Court reversed a termination of parental rights because there was no qualified expert witness testimony. The State argued that because of Adoptive Couple v. Baby Girl, the section of ICWA governing burden of proof and QEW (25 U.S.C. 1912(f)) did not apply. The Court rejected this argument.

In addition, the Court used the 2015 Guidelines to determine if a proper QEW testified:

The Bureau of Indian Affairs has created guidelines for state courts to use in Indian child custody proceedings. Bureau of Indian Affairs Guidelines for State Courts and Agencies in Indian Child Custody Proceedings, 80 Fed.Reg. 10147 (February 25, 2015). These guidelines do not have binding legislative effect, but Texas appellate courts have utilized the Guidelines when interpreting ICWA. See In re K.S., 448 S.W.3d 521, 529 (Tex.App.–Tyler 2014, pet. denied) (utilizing the earlier version of the Guidelines); In re J.J.C., 302 S.W.3d 896, 900 (Tex.App.–Waco 2009, no pet.)(same); In re R.R., 294 S.W.3d at 217 (same); see also Yavapai-Apache Tribe v. Mejia, 906 S.W.2d 152, 163-64 (Tex.App.–Houston [14th Dist.] 1995, orig. proceeding). The updated BIA Guidelines address the applicable standards of evidence.

The updated BIA Guidelines address the applicable standards of evidence. Section D.3(b) states:

The court may not order a termination of parental rights unless the court’s order is supported by evidence beyond a reasonable doubt, supported by the testimony of one or more qualified expert witnesses, that continued custody of the child by the parent or Indian custodian is likely to result in serious harm to the child. [Emphasis added].

80 Fed.Reg. 10156. Thus, the challenged finding cannot stand unless it is supported by the testimony of a qualified expert witness.

Section D.4 pertains to the qualifications an expert witness must possess.

***

After reviewing the entire record, we conclude that the challenged finding is not supported by the testimony of a qualified expert witness. The caseworker, Lizette Frias, was not shown to possess the required knowledge or expertise. There is no evidence that Frias is a member of the Oglala Sioux tribe or another tribe, or that she is recognized by any tribe as having substantial experience in the delivery of child and family services to Indians. Further, there is no evidence that she has knowledge of the prevailing social and cultural standards and childrearing practices within the Oglala Sioux tribe.

Appellant Brief
State Brief

ICWA Burden of Proof Case Out of Texas

Kate Fort

Here. The case cites to the In re K.S. case here.

The court found a way to splice the burden of proof issue, finding that the beyond a reasonable doubt standard only applies to the finding that continued custody of the child by the parent is likely to result in serious emotional or physical damage to the child, not to the termination of parental rights.

 

 

Unpublished ICWA Burden of Proof Case out of Michigan

Kate Fort1 Comment

Here.

The record demonstrates that although the trial court found that DP and AP were Indian children under the ICWA, the trial court did not apply the heightened “beyond a reasonable doubt” evidentiary standard of proof at the termination hearing as required under ICWA. Id.; 25 USC 1912(f). The record further demonstrates that although a representative of DP and AP’s Indian tribe testified at the termination hearing, the witness was never qualified as an expert and, importantly, the witness did not testify that respondents’ “continued custody of” DP and AP was “likely to result in serious emotional or physical damage to the” Indian children. 25 USC 1912(f); In re Morris, 491 Mich at 100 n 9. In both Docket No. 318105 and 318163, petitioner concedes that the trial court “committed reversible error” by applying the incorrect evidentiary standard of proof, and petitioner requests that we reverse the trial court’s termination of respondents’ respective parental rights to the Indian children and remand for further proceedings consistent with applicable ICWA provision. On the record before us, we agree that the trial court committed plain error affecting respondents’ substantial rights. In re Utrera, 281 Mich App at 8- 9; see In re Morris, 491 Mich at 100 n 9. In both Docket No. 318105 and 318163, we reverse the termination of respondents’ respective parental rights to the two Indian children, DP and AP, and remand for proceedings in compliance with ICWA, 25 USC 1912(f).

Colorado Court of Appeals Reverses ICWA Case

Matthew L.M. Fletcher

Here, the Colorado Court of Appeals reversed a trial court decision to apply the ICWA burden of proof because the lower court did not make sufficient findings that the child at issue was an Indian child or eligible for membership with an Indian tribe.

In re People ex rel. L.O.L.