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ICWA Rulings in Nevada and Arizona

Judge RubinJudge Stephen Rubin (ret.), Past President, NCJFCJ

Summary: A brief examination of two state supreme court decisions interpreting the ICWA burden of proof in termination of parental rights cases.


The purpose of this article is to briefly examine two state supreme court decisions, in Nevada and Arizona, that very narrowly interpret the Indian Child Welfare Act (ICWA) .

ICWA requires a higher standard of proof in order to terminate parental rights. The plain language of ICWA states that to terminate the parental rights of a Native American parent the burden of proof is beyond a reasonable doubt. There is an additional requirement that the court make a determination supported by evidence beyond a reasonable doubt—including testimony of a qualified expert—that active efforts have been made to prevent the breakup of the Indian family and, in spite of those efforts, the child cannot be returned to the parent without a substantial risk of serious physical or emotional harm. The two cases discussed here refer to these findings as ICWA–related findings.

In Valerie M v. ADES 198 P3rd 1203, the Arizona Supreme Court determined that the beyond a reasonable doubt requirement of ICWA did not apply to the state court grounds for termination or to the necessary finding of best interests. The court limited the heightened burden of proof to what they referred to as the ICWA–related findings. ICWA makes no such distinction. In Arizona there are now three burdens of proof for the trial judge to apply: clear and convincing evidence as to the state grounds; beyond a reasonable doubt as to the ICWA–related findings; and a preponderance of the evidence as to best interests.

The Nevada Supreme Court in In the Matter of the Parental Rights as to N.J, 2009 WL 5030670 ( NEV), citing the Arizona case, reached the same conclusion. The Nevada Supreme Court found that the federal law created minimum federal standards and that the federal law should be liberally construed, yet they concluded that they could go below the minimum standard required by the act. The court established a dual standard of proof.

These two cases, in my opinion, are not justified by ICWA. The rulings specifically defeat the stated purpose of the law. The purpose of ICWA was to require the states be held to a higher burden of proof when seeking to terminate parental rights to Indian children. The intended benefits of this statute are that it would be in the best interests of Native American children to hold the state to a higher burden. These two decisions, in my view, are a major step backward in achieving that stated purpose of the Indian Child Welfare Act.


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