Denice F., In re

• Decision Date: 24 May 1995
• Citation: 658 A.2d 1070
• Parties: In re DENICE F., et al.
• Court: Maine Supreme Court

Page 1070

658 A.2d 1070

In re DENICE F., et al.

Supreme Judicial Court of Maine.

Submitted on Briefs March 3, 1995.

Decided May 24, 1995.

Richard C. Cleary, Patrick E. Hunt, P.A., Island Falls, for mother.

Allan Hanson, Caribou, for father.

James D. Carr, Houlton, Guardian Ad Litem.

Nancy Torresen, Asst. Atty. Gen., Bangor, for D.H.S.

Margaret T. Johnson, Presque Isle, for Houlton Band of Maliseet Indians.

Before WATHEN, C.J., and ROBERTS, CLIFFORD, RUDMAN, DANA and LIPEZ, JJ.

LIPEZ, Justice.

The mother of A and B appeals from a judgment of the District Court (Griffiths, J.) terminating her parental rights. She contends that the Department of Human Services [hereinafter "DHS"] did not establish beyond a reasonable doubt, as required by the Indian Child Welfare Act, 25 U.S.C. §§ 1901-1963 (1983) [hereinafter "ICWA" or "Act"], that A and B are likely to suffer emotional or physical damage should they remain in her custody. She further asserts that DHS did not establish by clear and convincing evidence, as required by state law, that she is currently unwilling or unable to take responsibility for A and B or to protect them from jeopardy, nor will she be able to do so within a time reasonably calculated to meet their needs, and that termination is in the best interests of the children. Because we find that the evidence produced at trial met the required burdens of proof, we affirm the judgment of termination.

Background

The mother, a member of a recognized band of Indians located in Maine [hereinafter "Band"], grew up in foster care. She married in 1979 and thereafter gave birth to A and B. Both children are also members of the Band.

The mother, who is mildly mentally retarded, has been the subject of DHS scrutiny for over 10 years. The primary issues have been unsanitary living conditions, neglect of her children, inability to protect them from sexual abuse, mental illness and substance abuse. Support services from both DHS and the Band have been provided to her.

In 1988, DHS petitioned for and was granted custody of A and B. Reunification was unsuccessfully attempted. The court issued a cease reunification order in 1990. The department subsequently filed a petition for termination of parental rights to A and B, which the District Court approved.

The Indian Child Welfare Act

The ICWA, which both parties concede applies to the instant case,

was the product of rising concern in the mid-1970's over the consequences to Indian children, Indian families, and Indian tribes of abusive child welfare practices that resulted in the separation of large numbers of Indian children from their families and tribes through adoption or foster care placement, usually in non-Indian homes.

Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 36, 109 S.Ct. 1597, 1601-02, 104 L.Ed.2d 29 (1989). The ICWA seeks to protect the rights of Indian children and of the Indian community by establishing a federal policy that, where possible, an Indian child should remain in the Indian community, and that welfare determinations should not be based on white middle-class standards which often foreclose placement of an Indian child with an Indian family. Id. at 39, 109 S.Ct. at 1603. In pursuit of this policy, the ICWA provides that termination of parental rights may not be ordered in the absence of "a determination, supported by evidence beyond a reasonable doubt, ... that continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child." 25 U.S.C. § 1912(f).

We reject the mother's assertion that, on the basis of preemption, the "beyond a reasonable doubt" standard of the ICWA also applies to the state grounds for termination of parental rights. The state grounds for termination of parental rights, unaffected by the ICWA, provide a supplemental degree of protection to parents facing a petition for termination of parental rights. Such grounds for termination should be reviewed for clear and convincing evidence. A dual burden of proof--one federal, one state--thus exists in cases involving the termination of parental rights to an Indian child. See In re Matter of Bluebird, 105 N.C.App. 42, 411 S.E.2d 820, 823 (1992) (provisions of the ICWA requiring proof beyond a reasonable doubt do not require state statutory grounds be proved to such a high standard); In re Annette P., 589 A.2d 924, 926 (Me.1991) (clear and convincing evidence standard applied to state grounds for termination of parental rights); In re D.S.P., 157 Wis.2d 106, 458 N.W.2d 823, 829 (1990), aff'd, 166 Wis.2d 464, 480 N.W.2d 234 (1992) (children's code, requiring proof by clear and convincing evidence of unfitness of a parent, neither interferes with nor is incompatible with the ICWA; dual burden of proof requires evidence beyond a reasonable doubt regarding placement with parents causing serious risk of harm, but only clear and convincing evidence regarding abandonment of child and neglect); In re Dependency of Roberts, 46 Wash.App. 748, 732 P.2d 528, 531 (1987) (holding ICWA merely imposes additional burden on State); In re J.R.B., 715 P.2d 1170, 1172 (Alaska 1986) (holding enactment of ICWA did not expressly or implicitly preempt state law).

Termination of Parental Rights

The ICWA

In order to terminate parental rights under the ICWA, the District Court must find by evidence beyond a reasonable doubt that continued custody of A and B by the mother is likely to result in serious emotional or physical damage to the children. 25 U.S.C. § 1912(f). There is ample evidence to support such a finding.

At trial, a witness qualified as an expert pursuant to the ICWA by virtue of his experience in providing services to Native American families and previous service to the court as an expert under the Act, ¹ testified that continued custody of A and B in foster care or with their mother was likely to result in serious emotional or physical damage to them. Other witnesses testified to the mother's past and future inability to care for the children. There was consistent evidence of the unsanitary conditions in the mother's home. Medical neglect and lack of supervision were reported. Several incidents raised concerns about the mother's ability to protect her children from sexual abuse. Long-term assistance from service providers did not enhance the mother's ability to care for the children, despite the fact that she appears to genuinely care for them. The court...