Appellate court: Minor not ‘Indian child’ under ICWA

A father who argued his daughter was an Indian child under federal law during a termination of parental rights battle lost his appeal of the termination Monday, when the Indiana Court of Appeals upheld a ruling finding that the child’s tribe was not registered with the United States government.

During a back-and-forth termination of parental rights battle with the Indiana Department of Child Services, father T.K. continually asserted  his daughter, S.K., was a member of an Indian tribe in Canada and covered by the Indian Child Welfare Act. However, the Vanderburgh Superior Court concluded that while S.K. was an established member of the Lac Des Mille Lacs Canadian Tribe, the tribe was not registered or recognized by the government of the United States.

Noting T.K.’s incarceration, substance abuse, unsuitable housing, instability, criminal involvements and failure to comply with services, the judge  concluded there was a reasonable probability that the conditions that resulted in S.K.’s removal and continued placement outside the home would not be remedied. Further, the court concluded that the continuation of the parent-child relationship posed a threat to her well-being, that termination was in her best interests and that there was a satisfactory plan in place for her care and treatment. Thus, his parental rights were involuntarily terminated.

T.K. appealed, arguing the trial court lacked jurisdiction pursuant to ICWA and that DCS failed to send notice to the Minnesota Chippewa Nation or the Minnesota Office of the Midwest Region of the Bureau of Indian Affairs. He also contended the trial court erroneously applied the “clear and convincing evidence” standard instead of the more restrictive “beyond a reasonable doubt” standard required by ICWA.

In affirming the TPR decision, the Indiana Court of Appeals noted that while T.K. asserted his counsel had previously informed the court that S.K.’s tribal number corresponded with a federally recognized tribe, he did not point to the record or authority to support that proposition.

“We also note that the Lac Des Mille Lacs tribe does not appear on the list of Indian entities recognized and eligible to receive services from the United States Bureau of Indian Affairs,” Judge Elaine Brown wrote for the appellate court. “Based upon the record, we cannot say that Father has demonstrated that S.K. is an Indian child as defined by the ICWA or that the ICWA applies.”

Additionally, the appellate court said T.K. did not challenge the trial court’s conclusions regarding S.K.’s well-being and best interests. It therefore affirmed the termination in In the Matter of the Termination of the Parent-Child Relationship, S.K., Minor Child, T.K., Father v. Indiana Department of Child Services, 19A-JT-1797.

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