In Re Nj

Statutes cited

Key holdings

Practitioner summary

The court resolved two questions of first impression concerning the interplay between Nevada parental-termination law and the ICWA, 25 U.S.C. §§ 1901-63 (2006): (1) which burden of proof governs when both state and federal standards are implicated, and (2) whether the judicially created EIF exception to the ICWA applies where neither the Native American parent nor the tribe contests termination. Threshold applicability: because N.J.'s putative father is an enrolled member of the Ely Shoshone Tribe and N.J. is eligible for enrollment, N.J. is a Native American child and the proceedings are subject to the ICWA. See Matter of Petition of Phillip A. C., 122 Nev. 1284, 1291, 149 P.3d 51, 56 (2006). Evidentiary standards: Nevada requires clear and convincing evidence in termination cases, Matter of Parental Rights as to D.R.H., 120 Nev. 422, 428, 92 P.3d 1230, 1234 (2004), while the ICWA requires proof beyond a reasonable doubt, 25 U.S.C. § 1912(f) (2006). Applying its statutory-interpretation principles from Phillip A. C. - including that protective statutes such as the ICWA should be "liberally construed in order to effectuate the intended benefits" - the court read 25 U.S.C. § 1902, which describes the ICWA as setting "minimum Federal standards," together with 25 U.S.C. § 1921, and concluded that the stricter federal standard applies only to findings related to the federal statute, while the state standard applies to state-law findings. The court found support in Valerie M. v. Arizona Dept. of Econom. Sec. (Ariz. 2009), which noted that almost every state court to consider the issue has concluded that the "ICWA allows states to specify the standard of proof for state-law findings distinct from the findings required by ICWA." State-law analysis: under Nevada law, "a petitioner must prove by clear and convincing evidence that termination is in the child's best interest" and that parental fault exists. Matter of Parental Rights as to D.R.H., 120 Nev. at 428, 92 P.3d at 1234; see NRS 128.105. A termination order is upheld if substantial evidence supports it. On best interest, the NRS 128.109(2) presumption applied because N.J. had been in foster care for approximately 20 months (14 of any 20 consecutive months triggers the presumption), and Dawn failed to overcome it. See Matter of Parental Rights as to A.J.G., 122 Nev. 1418, 1426, 148 P.3d 759, 764 (2006). The foster-care integration considerations of NRS 128.108, including NRS 128.108(4) and (5), also supported the best-interest finding, given testimony from clinical social worker Volkmann and foster mother Karla that N.J. was fully integrated into the foster family and that removal would be traumatic. On parental fault, the court reviewed each ground found below. Neglect: applying NRS 128.014(2), NRS 128.106(4) (excessive drug and alcohol use), and NRS 128.106(8) (inability of public agencies to reunite despite reasonable efforts), the court concluded substantial evidence supported the finding, citing Dawn's ongoing drug addiction, missed visitations, failure to attend N.J.'s medical appointments, and lack of financial support. Unfitness: under NRS 128.018 and the factors discussed in Matter of Parental Rights as to D.R.H., 120 Nev. at 429-30, 92 P.3d at 1235 (quoting NRS 128.106(6)); see Matter of Parental Rights as to K.D.L., 118 Nev. 737, 746-47, 58 P.3d 181, 187 (2002), the court rejected Dawn's argument that the district court overlooked her 2007 sobriety period, noting that the district court took note of it and that Dawn again used methamphetamine, was arrested, and spent 30 days in jail before the hearing. Token efforts: under NRS 128.105(2)(f) and the presumption of NRS 128.109(1)(a) and (2), the court concluded that a few months of sobriety a year and a half after N.J.'s birth was "a token effort at best." ICWA analysis: 25 U.S.C. § 1912(f) requires a determination, supported by evidence beyond a reasonable doubt including qualified expert testimony, that continued custody is likely to result in serious emotional or physical damage to the child, and § 1912(d) requires proof of active but unsuccessful remedial efforts. Because the ICWA does not expressly define a qualified expert witness, the court found NRS 128.093(2) "helpful." Buckner, the tribal chairperson, met the NRS 128.093(2) standards as a tribal expert but could not testify that returning N.J. to Dawn would result in serious emotional or physical damage; Volkmann likewise could not so testify. DCFS therefore failed to meet the ICWA's higher standard. EIF doctrine: the court adopted the EIF doctrine on a case-by-case basis, citing In re Alexandria Y., 53 Cal. Rptr. 2d 679, 686 (Ct. App. 1996) (holding that "recognition of the [EIF] doctrine is necessary to avoid serious constitutional flaws in the ICWA"). It held application appropriate here because the father and tribe were not contesting termination, the breakup of a Native American family was not at issue, the only contestant was the non-Native American parent, and the prospective adoptive family was committed to educating N.J. about her heritage. Because the EIF doctrine applied, the court did not reach whether DCFS made active efforts under 25 U.S.C. § 1912(d).

In plain language

This case is about ending a mother's legal rights to her child when the child qualifies as a Native American child under a federal law called the Indian Child Welfare Act (ICWA). N.J. was born in September 2005, two weeks premature, and both she and her mother, Dawn, tested positive for marijuana and methamphetamine at the birth. Nevada's child welfare agency, DCFS, became involved, and N.J. was placed in foster care days after leaving the hospital. She remained with the same foster family from that point on. DNA testing showed that Javy J. was N.J.'s biological father, but according to DCFS he denied paternity and never contacted the child or the agency again. Because Javy is an enrolled member of the Ely Shoshone Tribe, N.J. was eligible for tribal membership, which made the ICWA apply to the case. Dawn herself is not a member of any tribe, and the tribe did not intervene in the case beyond providing expert testimony. DCFS created a case plan for Dawn and arranged visits, but the opinion recounts that Dawn continued testing positive for drugs during the first 18 months of N.J.'s life, missed more than half of her scheduled visits in the first year, achieved only a few months of sobriety in 2007, and tested positive again in October 2007. Witnesses described N.J. as fully bonded with her foster family, which planned to adopt her and, having Native American ancestry of its own, planned to educate her about her tribal roots. The complication is that two different legal standards were in play. Nevada law lets a court terminate parental rights if the key facts are proved by "clear and convincing evidence" - a demanding standard, but less demanding than the criminal-law standard. The federal ICWA requires something more: proof beyond a reasonable doubt, including testimony from a qualified expert witness, that keeping the child with the parent would likely cause the child serious emotional or physical damage. The district court used both standards - the state standard for state-law questions and the federal standard for ICWA questions. It found the state requirements satisfied, but found the ICWA requirement unmet, because the tribal expert who testified was not qualified to say whether returning N.J. to either parent would seriously harm her. The district court nonetheless terminated Dawn's rights by applying the Existing Indian Family (EIF) doctrine - a judge-made exception to the ICWA that applies when the child is not, and never was, part of a Native American family or tribe. The Nevada Supreme Court agreed on all fronts. It formally adopted the "dual-standard" approach used in most states: state-law findings are judged by Nevada's clear-and-convincing standard, and ICWA findings by the federal beyond-a-reasonable-doubt standard. It found substantial evidence supporting the district court's conclusions that termination was in N.J.'s best interest and that Dawn was at fault as a parent through neglect, unfitness, and merely "token efforts." It agreed that DCFS did not satisfy the ICWA's higher standard because no qualified expert testified about the likelihood of serious harm. But it held that the EIF doctrine may apply on a case-by-case basis - specifically in circumstances like these, where the only person contesting termination is a non-Native American parent, neither the tribe nor the Native American parent objects, and no breakup of a Native American family is at stake. The court observed that applying the ICWA here "would serve only one purpose: to deprive N.J. of the only home she has ever known and come to love," an outcome it said would run counter to the ICWA's goal of protecting the best interests of Native American children. The termination order was affirmed.