In re N.J., 51125.

Decision Date24 December 2009
Docket NumberNo. 51125.,51125.
PartiesIn the Matter of the Parental Rights as to N.J. Dawn M., Appellant, v. Nevada State Division of Child and Family Services; and Faye Cavender, Respondents.
CourtNevada Supreme Court

Law Office of John C. Brown and John C. Brown, Alamo, for Appellant.

Catherine Cortez Masto, Attorney General, and Shannon C. Richards, Deputy Attorney General, Carson City, for Respondents.

Before the Court En Banc.

OPINION

By the Court, SAITTA, J.

In this appeal, we resolve questions concerning the Indian Child Welfare Act (ICWA), 25 U.S.C. §§ 1901-63 (2006). Specifically, we address what evidentiary standards apply in parental termination cases involving the ICWA. We also consider whether the Existing Indian Family (EIF) doctrine, a judicially created exception to the ICWA, applies in those cases in which neither the Native American parent nor the tribe is contesting termination.

We conclude that a dual-standard burden of proof is appropriate for evidentiary findings in parental termination cases involving the ICWA. Therefore, the higher beyond-a-reasonable-doubt evidentiary standards of the ICWA will be used for ICWA-related findings, and Nevada's clear-and-convincing evidence standard will apply to state law findings. We further hold that under specific circumstances, such as when the breakup of a Native American family is not at issue, application of the EIF doctrine may be appropriate.

FACTS AND PROCEDURAL HISTORY

N.J. was born in Nevada in September 2005, two weeks premature. At the time of her birth, N.J. and her mother, petitioner Dawn M., tested positive for marijuana and methamphetamine. N.J. suffered respiratory problems and was flown to a children's hospital in Utah. Having determined that Dawn had exposed N.J. to drugs while in utero, respondent Nevada State Division of Child and Family Services (DCFS) became involved and worked with Dawn to find a safe placement for not only N.J., but also Dawn's two other minor children. On September 16, 2005, Dawn informed DCFS that she was unable to secure a suitable placement for N.J. DCFS was unable to locate the putative father, Javy J. On September 20, 2005, N.J. was released from the hospital and placed in foster care, where she remains today.

In October 2005, Javy made contact with DCFS. Subsequent DNA tests showed that Javy was the biological father of N.J. However, according to DCFS, Javy denied paternity. Moreover, he never made further contact with DCFS, nor did he ever contact N.J., acknowledge her, or petition the court to establish his parental rights. It was determined that Javy is an enrolled member of the Ely Shoshone Tribe, and therefore, N.J. was eligible to become a member of the tribe. Yet the Ely Shoshone Tribe did not intervene in the underlying case, and its only participation was to provide expert testimony when called upon. Furthermore, Dawn is neither a member of the Ely Shoshone Tribe nor any other Native American tribe.

DCFS made arrangements for Dawn to visit N.J. and created a case plan for her to follow. In addition, DCFS referred Dawn for a drug and alcohol evaluation and to parenting and mental health classes. In May 2007, due to Dawn's continued drug use and failure to abide by the case plan, DCFS filed a petition to terminate her parental rights as to N.J.

At the parental rights termination hearing, DCFS presented testimony that for the first 18 months of N.J.'s life, Dawn continued to test positive for marijuana and methamphetamine. It further established that it was not until the spring of 2007, more than 18 months after N.J.'s birth, that Dawn showed more compliance with her case plan by maintaining sobriety and attending mental health appointments, as well as visitation appointments with N.J. However, Dawn managed to maintain only a few months of sobriety, testing positive for illegal substances again in October 2007.

The testimony showed that DCFS was seeking termination of Dawn's parental rights because reunification efforts had failed as a result of her continued drug use. Respondent Faye Cavender, a social worker with DCFS, stated that she witnessed Dawn fall asleep during some of her visits with N.J. She testified that Dawn's continued struggle with drugs; the lack of a meaningful bond between Dawn and N.J.; the ongoing relationship between Dawn and her boyfriend, which was described as a domestic violence situation; and the fact that N.J.'s entire life had been spent in foster care were all factors that led the agency to seek termination of Dawn's parental rights.

N.J.'s foster mother, Karla, also provided relevant testimony that showed that N.J. was fully integrated into the foster family. Karla testified that since the day she and her husband, Mark, brought a fragile N.J. home, they had worked to enable N.J. to thrive physically by taking her to all of her doctor appointments. They also worked on supporting her emotional needs. Karla explained that both she and Mark had Native American ancestry and would help educate N.J. about her tribal roots. She also provided detailed testimony regarding N.J.'s close bond with Mark and the couple's other children. Karla testified that the family would adopt N.J. if the petition for termination of parental rights was granted.

Jacqueline Volkmann, a clinical social worker with DCFS with 15 years of experience, who had an opportunity to observe N.J. with her foster family, testified that N.J. was integrated into the family. In Volkmann's opinion, removing N.J. from the only family she had ever known would be traumatic for the child. In addition, Volkmann testified that in her experiences dealing with methamphetamine users, it was impossible to parent well on even the lowest dosage of the drug.

DCFS also presented the testimony of Diane Buckner, the chairperson and health director for the Ely Shoshone Tribe. As to the traditions of the tribe, Buckner explained that the tribe is so integrated in the nonnative community that each family chooses what tradition it will practice. Buckner stated that she had no concerns about N.J.'s placement with a non-native family. She explained that upon her review of Dawn's case file, it was her opinion that returning N.J. to Dawn would be problematic. However, during cross-examination, Buckner testified that she did not feel qualified to make such an assessment.

Dawn testified on her own behalf, admitting to her struggles with alcohol, marijuana, and methamphetamine abuse. Dawn admitted that during the first year of N.J.'s life, she may have missed more than half of the scheduled visits with her daughter because she was not given adequate notice. Dawn stated that she and N.J. had bonded.

Following the hearing, the district court issued an order granting DCFS's petition for termination of parental rights. In its order, the district court explained that it applied a dual-level evidentiary standard, using a clear-and-convincing standard for state law findings and the ICWA's higher beyond-a-reasonable-doubt standard for the ICWA findings. Accordingly, it found by clear and convincing evidence that N.J.'s best interest would be served by terminating Dawn's parental rights. However, it determined that DCFS failed to meet the ICWA's higher evidentiary standard. In making this determination, it found that Buckner, though a qualified tribal expert, was not qualified to testify whether continued custody by either of N.J.'s parents would result in serious harm. In noting this evidentiary deficiency, the district court determined that application of the EIF doctrine was appropriate. The EIF doctrine is a judicially created exception to the ICWA. The district court reasoned that in some cases, like N.J.'s, in which neither the Native American parent nor the tribe was contesting the termination and the breakup of a Native American family was not at issue, the EIF doctrine was appropriate. Accordingly, it granted DCFS's petition to terminate Dawn's parental rights, and she appeals.

DISCUSSION

This appeal involves a child who is eligible for enrollment with the Ely Shoshone Tribe. The Tribe sent a letter to DCFS indicating that N.J.'s putative father, Javy, is an enrolled member, and therefore, N.J. is eligible for enrollment. Accordingly, N.J. is a Native American child, and the parental termination proceedings are subject to the ICWA. See Matter of Petition of Phillip A. C., 122 Nev. 1284, 1291, 149 P.3d 51, 56 (2006).

On appeal, Dawn raises two overarching issues. She asserts that the district court erred when it found clear and convincing evidence of parental fault. Dawn additionally contends that the EIF doctrine should not apply in this case. In resolving these issues, we first address the evidentiary standard of parental termination cases involving the ICWA. We adopt the dual-standard approach, which is used in the majority of states and requires state law grounds for termination to be proved by a clear-and-convincing standard and the ICWA grounds for termination to be proved by the higher beyond-a-reasonable-doubt standard. Additionally, we hold that the EIF doctrine is applicable under limited circumstances, such as when neither the Native American parent nor the tribe is contesting the termination.

Evidentiary standards

As a threshold issue, we must first define the evidentiary standards applicable in this case. The specific issue before us is the interplay between Nevada's and the ICWA's standards of proof in parental termination cases.

Nevada has a clear-and-convincing evidentiary standard for parental 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 that a beyond-a-reasonable-doubt evidentiary standard be met before granting a petition for termination of parental rights. 25 U.S.C. § 1912(f) (2006). When a case arises, such as this, where both standards are implicated, the fact-finder is faced with two competing...

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