In this decision, a division of the Court of Appeals considers whether lack of compliance with ICWA’s notice provisions deprives the court of subject matter jurisdiction to enter adjudicatory and dispositional orders and whether ICWA’s foster care placement provisions apply to adjudicatory and dispositional orders.

The record in this case did not indicate that the department notified the Sioux tribes of the dispositional or adjudicatory hearing even though mother indicated in her relative affidavit that the children were eligible for membership in a Lakota or Sioux tribe. Additionally, the juvenile court did not make any active efforts findings, apply clear and convincing evidence, or consider testimony of a qualified expert witness in its dispositional placement orders.

Analyzing the decisions of several other states, the Division holds that the trial court’s lack of compliance with ICWA’s notice provisions did not divest the trial court of subject matter jurisdiction to enter adjudicatory and dispositional orders. With regard to ICWA’s foster care placement requirements, the division holds that an adjudicatory order does not constitute a foster care placement under ICWA, but that a dispositional order does constitute a child custody proceeding under ICWA. Because the dispositional hearing constituted a child custody proceeding under ICWA, the department should have sent notice of the hearing to the Sioux tribes and the court should have made the findings required by 25 United States Code sections 1912(d) and (e).

The Division does not consider whether the notice compliance issues deprived the juvenile court of personal jurisdiction over the tribe, as this issue was raised for the first time on appeal.

Finally, the Division holds that the trial court erred in admitting video recordings anonymously delivered to the department and a relative because no witness could independently verify the accuracy of the content or the reliability of the recording process. Because the Division concludes that the erroneous admission of the recordings did substantially influence the jury’s verdict, the error was not harmless and requires reversal of the adjudicatory order.

November 15, 2018

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