SUMMARY: Removal of the children from the non-custodial parent in an ICWA case was improper because no qualified expert witness established that continued custody would cause serious emotional or physical damage to the children and there was no determination that active efforts had been made as to the father.
Timothy W., Autumn W., Elizah W., Keith W., Jr., and Isaiah W. were removed from the home of the mother, Jennifer, and a petition was filed on July 30, 2010, alleging inappropriate discipline, unsafe and unsanitary conditions and inability to care for the family as to Jennifer, and improper care through no fault of the parent as to the father, Keith. The petition also alleged the children were Indian children under ICWA. After a Protective Custody hearing on August 3, 2010, the court found active efforts had been made and, on March 14, 2011, the Tlingit Haida Tribe of Alaska filed a notice of intervention. In May 2011, both parents admitted to portions of the petition. By October 7, 2011, the children were living with Keith and Jennifer was making progress on her case plan (there was no case plan for Keith). On January 13, 2012, the court entered an order with specific instructions of allowing placement of the children with the parents.
The case was transferred to another court and a review hearing was held on March 23, 2012, where the court orally indicated that the children would remain in DHHS legal custody with temporary placement with Keith. On March 29, 2012, Jennifer filed a motion for the court to recognize the children as Indian children. At a review hearing on April 4, 2012, the court orally found that the children were enrolled members of the tribe and that ICWA applies. Several witnesses then testified as to the difficulty the mother was having in establishing a stable home. There was no testimony as services being provided to Keith but the caseworker noted an altercation Keith had in the presence of the children. At the end of the hearing, the court found that the children could not remain with Keith due to the risk of harm, or with Jennifer in the shelter due to the instability. On May 3, 2012, a notice of change of placement was filed as to Keith Jr and Isaiah due to aggressive behaviors to separate non-Indian foster homes. On June 6, 2012, Jennifer filed a motion for placement. At the hearing on June 11, 2012, the ICWA Program Specialist for DHHS testified that the tribe had not been involved in case planning, that no culturally relevant services were provided, that placement preferences were not followed and that she had no safety concerns if the children were placed with Jennifer. She did not testify as to Keith. A caseworker testified as to services being provided to Jennifer and the children. No evidence was presented about Keith, and the court presented his attorney from asking questions about placement in his home. On July 11, 2012, the court denied Jennifer’s motion for placement and indicated concern about Keith’s altercation and the last of a case plan. Jennifer and Keith both appeal.
The Court of Appeals reversed the decision and remanded the case. It first noted that the case has been an ICWA case since it was filed in July 2010. The Court determined that the court in continuing custody with DHHS failed to make the required ICWA findings of active efforts and that continued custody with one of the parents would cause serious emotional or physical damage based on the testimony of an expert witness. It noted that this was not harmless error as a de novo review of the evidence does not support the findings. In fact, the ICWA Program Specialist for DHHS testified that there were no safety concerns rising to serious emotional or physical damage as to Jennifer and there were no findings at all on active efforts or serious emotional or physical damage as to Keith.