961 N.W.2d 293
N.D.2021Background
- J.B. is the mother of two children (K.B. and K.E.B.) who tested positive for methamphetamine at birth; both children are eligible for enrollment in the Turtle Mountain Band of Chippewa.
- Social services removed K.B. in Nov. 2019 after J.B. admitted deprivation and reported relapse into drug use; K.E.B. was taken into custody at birth after J.B. continued substance use and did not attend prenatal care.
- J.B. was incarcerated (with projected earliest parole originally understood to be May 2021 but actual good-time release date was May 2022) and had an ongoing relationship with M.N., the possible father, raising concerns about domestic violence and drug exposure.
- A qualified ICWA expert (Marilyn Poitra) testified the tribe could exercise jurisdiction and opposed termination because she believed J.B. would soon be available to parent and had disassociated from M.N.; Poitra also testified termination would cause emotional harm and that ongoing placement under the current arrangement would not cause physical harm.
- During trial, evidence (screenshots) showed J.B. and M.N. communicating, undermining Poitra’s assumption that the relationship had ended; the juvenile court found Poitra’s assumptions (imminent availability and disassociation from M.N.) unsupported and terminated J.B.’s parental rights.
- On appeal J.B. argued the §1912(f) ICWA requirement was not satisfied because the qualified expert’s testimony did not support a finding—beyond a reasonable doubt and including qualified expert testimony—that continued custody by the parent is likely to result in serious emotional or physical damage; the North Dakota Supreme Court retained jurisdiction and remanded for detailed ICWA findings, allowing further evidence within 45 days.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the juvenile court satisfied 25 U.S.C. § 1912(f) by relying on qualified expert testimony and making the required finding that continued custody by the parent is likely to result in serious emotional or physical damage | Petitioner (state/Cass County Human Services) relied on the juvenile court’s findings that children were deprived, causes likely to continue, and that termination was appropriate; argued expert testimony was part of the evidentiary support | J.B. argued the qualified expert’s testimony was contradictory or insufficient under §1912(f)—the expert said termination would cause emotional harm and that no physical harm would result if custody remained as is—so the ICWA-required finding supported by qualified expert testimony was absent | Court remanded: the order lacked the specific §1912(f) finding supported by qualified expert testimony and contained contradictory expert testimony; juvenile court must make detailed ICWA findings (may receive additional evidence) within 45 days |
Key Cases Cited
- In re K.S.D., 2017 ND 289, 904 N.W.2d 479 (addresses state termination standard and ICWA applicability)
- Interest of A.L.E., 2018 ND 257, 920 N.W.2d 461 (standard of review for juvenile findings)
- Marcia V. v. Office of Children’s Servs., 201 P.3d 496 (Alaska 2009) (expert must supply some evidentiary support for ICWA §1912(f) finding)
- In re Welfare of Child of E.A.C., 812 N.W.2d 165 (Minn. Ct. App. 2012) (court must make specific §1912(f) findings supported by qualified expert testimony)
- Thomas H. v. State, Dep’t of Health & Soc. Servs., Office of Children’s Servs., 184 P.3d 9 (Alaska 2008) (ICWA requires expert testimony to support termination decision)
- Shark v. Thompson, 373 N.W.2d 859 (N.D. 1985) (caution against inferring required findings from vague references)
- In re M.F., 225 P.3d 1177 (Kan. 2010) (qualified expert’s testimony must support court’s ICWA finding)