(Cite
as: 658 A.2d 1070)
Supreme
Judicial Court of Maine.
In
re DENICE F., et al.
Submitted
on Briefs March 3, 1995.
Decided
May 24, 1995.
*1071
Richard C. Cleary, Patrick E. Hunt, P.A., Island Falls, for mother.
Allan
Hanson, Caribou, for father.
James
D. Carr, Houlton, Guardian Ad Litem.
Nancy
Torresen, Asst. Atty. Gen., Bangor, for D.H.S.
Margaret
T. Johnson, Presque Isle, for Houlton Band of Maliseet Indians.
Before WATHEN , C.J., and ROBERTS
, CLIFFORD , RUDMAN , DANA and LIPEZ, JJ.
LIPEZ, Justice.
The
mother of A and B appeals from a judgment of the District Court (Griffiths,
J.) terminating her parental rights. She contends that the
Department of Human Services [hereinafter “DHS”] did not establish *1072
beyond a reasonable doubt, as required by the Indian Child Welfare Act,
25 U.S.C. §§ 1901 -1963 (1983) [hereinafter “ICWA” or “Act”],
that A and B are likely to suffer emotional or physical damage should
they remain in her custody. She further asserts that DHS did
not establish by clear and convincing evidence, as required by state law,
that she is currently unwilling or unable to take responsibility for A
and B or to protect them from jeopardy, nor will she be able to do so
within a time reasonably calculated to meet their needs, and that termination
is in the best interests of the children. Because we find
that the evidence produced at trial met the required burdens of proof,
we affirm the judgment of termination.
Background
The mother, a member of a recognized
band of Indians located in Maine [hereinafter “Band”], grew up in foster
care. She married in 1979 and thereafter gave birth to A and
B. Both children are also members of the Band.
The mother, who is mildly mentally
retarded, has been the subject of DHS scrutiny for over 10 years. The
primary issues have been unsanitary living conditions, neglect of her
children, inability to protect them from sexual abuse, mental illness
and substance abuse. Support services from both DHS and the
Band have been provided to her.
In 1988, DHS petitioned for and
was granted custody of A and B. Reunification was unsuccessfully
attempted. The court issued a cease reunification order in
1990. The department subsequently filed a petition for termination
of parental rights to A and B, which the District Court approved.
The
Indian Child Welfare Act
The ICWA, which both parties concede
applies to the instant case,
was
the product of rising concern in the mid-1970's over the consequences
to Indian children, Indian families, and Indian tribes of abusive child
welfare practices that resulted in the separation of large numbers of
Indian children from their families and tribes through adoption or foster
care placement, usually in non-Indian homes.
Mississippi
Band of Choctaw Indians v. Holyfield,
490 U.S. 30, 36, 109 S.Ct. 1597, 1601-02, 104 L.Ed.2d 29 (1989). The
ICWA seeks to protect the rights of Indian children and of the Indian
community by establishing a federal policy that, where possible, an Indian
child should remain in the Indian community, and that welfare determinations
should not be based on white middle-class standards which often foreclose
placement of an Indian child with an Indian family. Id.
at 39, 109 S.Ct. at 1603. In pursuit of this policy, the ICWA
provides that termination of parental rights may not be ordered in the
absence of “a determination, supported by evidence beyond a reasonable
doubt, ... that continued custody of the child by the parent or Indian
custodian is likely to result in serious emotional or physical damage
to the child.” 25 U.S.C. § 1912(f).
We reject the mother's assertion
that, on the basis of preemption, the “beyond a reasonable doubt” standard
of the ICWA also applies to the state grounds for termination of parental
rights. The state grounds for termination of parental rights,
unaffected by the ICWA, provide a supplemental degree of protection to
parents facing a petition for termination of parental rights. Such
grounds for termination should be reviewed for clear and convincing evidence.
A dual burden of proof-one federal, one state-thus exists
in cases involving the termination of parental rights to an Indian child.
See In re
Matter of Bluebird,
105 N.C.App. 42, 411 S.E.2d 820, 823 (1992) (provisions of the ICWA
requiring proof beyond a reasonable doubt do not require state statutory
grounds be proved to such a high standard); In
re Annette P., 589
A.2d 924, 926 (Me.1991) (clear and convincing evidence standard
applied to state grounds for termination of parental rights); In
re D.S.P., 157 Wis.2d
106, 458 N.W.2d 823, 829 (1990), aff'd,
166 Wis.2d 464, 480 N.W.2d 234 (1992) (children's code, requiring proof
by clear and convincing evidence of unfitness of a parent, neither interferes
with nor is incompatible with the ICWA; dual burden of proof requires
evidence beyond a reasonable doubt regarding placement with parents causing
serious risk *1073
of harm, but only clear and convincing evidence regarding abandonment
of child and neglect); In
re Dependency of Roberts,
46 Wash.App. 748, 732 P.2d 528, 531 (1987) (holding ICWA merely
imposes additional burden on State); In
re J.R.B., 715 P.2d
1170, 1172 (Alaska 1986) (holding enactment of ICWA did not expressly
or implicitly preempt state law).
Termination
of Parental Rights
The
ICWA
In
order to terminate parental rights under the ICWA, the District Court
must find by evidence beyond a reasonable doubt that continued custody
of A and B by the mother is likely to result in serious emotional or physical
damage to the children. 25 U.S.C. § 1912(f). There
is ample evidence to support such a finding.
At trial, a witness qualified
as an expert pursuant to the ICWA by virtue of his experience in providing
services to Native American families and previous service to the court
as an expert under the Act, FN1
testified that continued custody of A and B in foster care or with their
mother was likely to result in serious emotional or physical damage to
them. Other witnesses testified to the mother's past and future
inability to care for the children. There was consistent evidence
of the unsanitary conditions in the mother's home. Medical
neglect and lack of supervision were reported. Several incidents
raised concerns about the mother's ability to protect her children from
sexual abuse. Long-term assistance from service providers
did not enhance the mother's ability to care for the children, despite
the fact that she appears to genuinely care for them. The
court did not err in concluding that the department sustained its burden
beyond a reasonable doubt that if A and B returned to the mother's home,
they were likely to experience serious emotional or physical damage.
FN1.
The ICWA requires the testimony of a qualified expert witness in any involuntary
proceeding to terminate parental rights. 25 U.S.C. § 1912(f).
A qualified expert witness is generally:
(i)
A member of the Indian child's tribe who is recognized by the tribal community
as knowledgeable in tribal customs as they pertain to family organization
and childrearing practices.
(ii)
A lay expert witness having substantial experience in the delivery of
child and family services to Indians, and extensive knowledge of prevailing
social and cultural standards and childrearing practices within the Indian
child's tribe.
(iii)
A professional person having substantial education and experience in the
area of his or her specialty.
Guidelines
for State Courts; Indian Child Custody Proceedings, 44 Fed.Reg.
67,593 (1979).
The
State Grounds for Termination
Under the state grounds for termination,
the court must find that the parent is inadequate under one of the statutory
conditions outlined in 22 M.R.S.A. § 4055 and that termination
is in the best interests of the children. We will affirm an
order for termination if the court could reasonably have been persuaded
that the required factual findings were proven to be highly probable.
In re Annette
P., 589 A.2d at 926.
The mother challenges the court's
findings pursuant to 22 M.R.S.A. § 4055(1)(B)(2)(b) that she
is unable or unwilling within a time reasonably calculated to meet her
children's needs to take responsibility for them and to protect them from
jeopardy. The court heard extensive testimony on these issues.
The record shows that she has been unable to provide adequate
clothing, shelter, supervision and care for her children. Her
ability to protect them from sexual abuse is questionable. As
the mother is unlikely to remedy her deficits in a time reasonably calculated
to meet her children's needs, the court did not commit clear error in
finding that she is unwilling or unable to take responsibility for A and
B and to protect them from jeopardy. FN2
FN2.
We need not address the mother's contention that the court erred in finding
that she did not make a good faith effort to rehabilitate and reunify
with A and B because the State has already presented sufficient evidence
to establish two of the required elements to terminate parental rights
under 22 M.R.S.A. § 4055(1)(B)(2), though only one need be established
for this Court to affirm a termination order.
The record also discloses that
A and B have spent the last six years of their lives in foster care. While
in their mother's care, they lived in unsanitary conditions and suffered*1074
from instability relating to her repeated hospitalizations for mental
illness. B has shown improvement in his school performance
since being removed from his mother's custody. A has bonded
to her foster mother. Nevertheless, A and B are both anxious
and frustrated at the lack of permanence they must endure.
A and B will require careful parenting
due to their emotional needs. B suffers from an adjustment
disorder which leaves him with a limited ability to handle stress. A
has either a language-based learning disability or attention deficit disorder.
She
may also suffer from fetal alcohol effects. She is definitely
at risk for academic difficulties and requires structure, consistency
and patience from any parent.
The testimony at trial indicates
that the mother will not be able to cope with the demands of her children
even with the myriad of services which have been made available to her
in the past. The court's finding that termination of her parental
rights is in the best interests of her children was supported by clear
and convincing evidence.
The entry is:
Judgment affirmed.
All concurring.
Me.,1995.
In
re Denice F.
658
A.2d 1070
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