904 N.W.2d 479
N.D.2017Background
- Parents R.W.D. (father) and H.L.K. (mother) have two children (born 2009, 2010); children entered GFCSS involvement in 2010 and have been in foster care since November 2013 (over 1,300 days).
- GFCSS found repeated parental substance abuse, domestic violence (father assaulted mother with children present), housing instability, lack of supervision, and exposure to drug paraphernalia; safety plans and services were repeatedly provided.
- Mother consented to termination; the juvenile court involuntarily terminated father R.W.D.’s parental rights in June 2017.
- Juvenile court found (by clear and convincing evidence) children were deprived, deprivation likely to continue, termination served children’s best interests, and children had been in foster care at least 450 of the prior 660 nights.
- Children are Indian children (Cheyenne River Sioux Tribe notified but did not intervene); GFCSS provided numerous remedial services and the court found "active efforts" were made under ICWA.
- No witness presented at trial was designated or qualified as an ICWA "qualified expert witness," and thus the record lacks testimony required by 25 U.S.C. § 1912(f) that continued parental custody would likely cause serious emotional or physical damage beyond a reasonable doubt.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of state-law evidence for termination (deprivation, likely to continue, best interests) | GFCSS: clear and convincing evidence supports deprivation, continuing conditions, harm, and foster-care time requirement | R.W.D.: evidence insufficient to terminate his parental rights | Held: Affirmed — clear and convincing evidence met state-law termination elements and 450/660 nights rule |
| ICWA active-efforts requirement (25 U.S.C. § 1912(d)) | GFCSS: active efforts made (extensive services, placements, meetings, evaluations) | R.W.D.: contested insufficiency of services (implicit) | Held: Affirmed — record shows active efforts were made and unsuccessful |
| ICWA qualified-expert testimony and federal burden (25 U.S.C. § 1912(f)) | GFCSS: relied on child-welfare experts and factual testimony (no ICWA expert called) | R.W.D.: did not preserve specific ICWA expert objection at trial or on appeal (raised by court sua sponte) | Held: Reversed on this narrow federal point and remanded — because no ICWA-qualified expert testified, record lacks the proof beyond a reasonable doubt required by § 1912(f); remand for hearing limited to that ICWA requirement |
| Remedy / finality concerns (collateral attack risk under 25 U.S.C. § 1914) | GFCSS: termination is necessary for permanence | R.W.D.: (not argued on appeal) | Held: Court retaines jurisdiction and remands to avoid later collateral invalidation; new hearing within 45 days limited to qualified-expert testimony and § 1912(f) determination |
Key Cases Cited
- Interest of K.J., 779 N.W.2d 635 (N.D. 2010) (standard of appellate review of juvenile-court findings)
- Brandt v. Somerville, 692 N.W.2d 144 (N.D. 2005) (deference to trial court credibility and findings)
- In re C.R., 602 N.W.2d 520 (N.D. 1999) (state law elements for parental-termination and burden of proof)
- In re Vaughn R., 770 N.W.2d 795 (Wis. Ct. App. 2009) (reversed TPR where county social worker was not an ICWA qualified expert)
- K.E. v. State, 912 P.2d 1002 (Utah Ct. App. 1996) (ICWA requires separate qualified-expert testimony on likelihood of serious harm)
- Matter of Bluebird, 411 S.E.2d 820 (N.C. Ct. App. 1992) (discussing dual burdens when Indian children are involved)
- O’Hara v. Schneider, 890 N.W.2d 831 (N.D. 2017) (timing/direction for remand and further proceedings)