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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.


(b) Appointment of counsel


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.


CREDIT(S)


(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.


LAW REVIEW COMMENTARIES


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.


NOTES OF DECISIONS


Admissibility of evidence 16

Assistance of counsel 8

Burden of proof 15

Damage to child 14

Failure to give notice 7

Findings 19

Foster care placement, qualified expert witness 11

Instructions 18

Non-Indian parent 4

Notice 6

Preventive measures 9

Purpose 1

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

Remand 21

Retroactive effect 2

Reversal 20

Revocation of relinquishment of parental rights 5

Social study report 13

State regulation or control 3

Termination of parental rights, qualified expert witness 12

Weight and sufficiency of evidence 17

  

1. Purpose


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)


2. Retroactive effect


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)


4. Non-Indian parent


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


6. Notice


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)


7. Failure to give notice


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)


8. Assistance of counsel


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


9. Preventive measures


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)


13. Social study report


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)


14. Damage to child


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)


15. Burden of proof


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)


16. Admissibility of evidence


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)


18. Instructions


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


19. Findings


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)


20. Reversal


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


21. Remand


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

 

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