standard of proof – Turtle Talk

This case is illustrative of a lot of the things we talk about regarding practicing in an unfamiliar forum, and getting objections on the record.

The Tribe (Nenana Native Village) brought an appeal regarding the termination of parental rights, though the Tribe also has motions pending at the trial level to transfer jurisdiction and/or get the children in a preferred placement.

The state filed its petition against the Mom on June 11, 2015. The state sent notice on February 23, 2016. No reason for the eight month delay on notice is given in the opinion. In November of 2016 the state filed a petition to terminate parental rights. At that time, Mom agreed to voluntarily relinquish her parental rights. This is a regular issue under ICWA, because while Mom is voluntarily relinquishing, it is under state threat of termination. The Tribe argued that the state needed to at least follow 25 U.S.C. 1913’s requirements for voluntary relinquishment (it didn’t).

The court agreed the tribe had standing to bring the appeal (after much writing, but 25 U.S.C. 1914 ensures the tribe’s standing to appeal violations of 1911, 1912, or 1913), but disagreed that either the qualified expert witness was a problem, or that the state not following 1913 was a “manifest injustice”.

As a side note, the court also fundamentally misunderstands the difference between federal guidelines and federal regulations:

The Tribe’s argument on this point relies upon 25 C.F.R. Sec. 23.122(a), which provides guidance in interpreting Section 1912(f). Promulgated by the Bureau of Indian Affairs and published as regulations for interpreting the I.C.W.A., Section 23.122 notes that: [a] qualified expert must be qualified to testify regarding whether the child’s continued custody by the parent . . . is likely to result in serious emotional or physical damage to the child and should be qualified to testify as to the prevailing social and cultural standards of the Indian child’s Tribe. 25 C.F.R. Sec. 23.122(a).

We note that while “[t]hese guidelines are helpful[, they] are not binding upon state proceedings.” C.E.H., 837 S.W.2d at 953 (citing Matter of Adoption of T.R.M., 525 N.E.2d 298, 307 (Ind. 1988)). This is because the “primary responsibility for interpreting language used in the [I.C.W.A.] rests with the courts that decide . . . cases [involving Native American children].” Id.

Finally, case also illustrates a point Victoria Sweet and I have presented on a number of times–preserving the record for appeal. Part of the issue with the case is the lack of objection from the Tribe below about the QEW, her testimony, or the termination itself. There are a lot of reasons why this might happen, but I’m using this case to reiterate: if a tribe disagrees with something that is happening in trial court, SAY SO OUT LOUD IN COURT (on the record). It might be terrifying to do so. The judge might get angry, but ultimately the proceeding will continue. Later, though, if the tribe decides to appeal, the issue is preserved. Absent that preservation, the court of appeals will use a lower standard to review the trial court (if it reviews it at all), and as in this case, use a “plain error” standard and find there is none.

This is an opinion full of incredibly annoying legal details the court wanted the Tribe do to, while the state failed to follow any of the legal details in ICWA.

Active Efforts Case out of the Nebraska Court of Appeals

January 25, 2017Kate Fort

Here.

NICWA, however, adds two additional elements the State must prove before terminating parental rights in cases involving Indian children. In re Interest of Walter W., supra. First, the State must prove by clear and convincing evidence that active efforts have been made to prevent the breakup of the Indian family and that these efforts have proved unsuccessful. See § 43-1505(4); see also In re Interest of Walter W., supra. Second, the State must prove 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. See § 43-1505(6).

***

Although the record indicates that for the first two years this case was pending in the juvenile court, there is some question about whether the Department was doing as much as it “possibly could have been” under an active efforts standard, it is clear that for the last two years this case was pending, the Department was providing Louisa with active efforts toward achieving reunification with her children. Despite the two years of active efforts, Louisa failed to make significant or sustainable progress towards reunification. Moreover, while we recognize that during the beginning stages of the juvenile court case the Department may have failed to provide active efforts, this does not mean that the Department failed to provide any efforts. The record is clear that Louisa has been receiving services from the Department since prior to the petition being filed in this case in November 2011. Despite all of those efforts, coupled with the Department’s recent active efforts, Louisa has not made progress towards reunification with her children. Louisa’s assertion that she has not been given enough time to turn her life around is simply without merit.

Burden of Proof ICWA Case Out of Arizona Court of Appeals

December 8, 2015December 9, 2015Kate Fort

Here.

Based on these authorities, we are persuaded that the
heightened standard of “clear and convincing” evidence should apply when Arizona courts decide whether good cause exists to deviate from ICWA foster or adoptive placement preferences. Because it is unclear what standard of proof the juvenile court applied here, we remand the good cause determination for reconsideration. Although we need not reach some of the parties’ remaining arguments, we address certain issues likely to recur on remand.

The authorities cited are 2015 Guidelines and case law from across the states.