Twenty-Seven Months in Foster Care, a Cherokee Grandmother, and No Notice to Any Tribe

The duty is affirmative and independent. Once there is reason to know the child may be an Indian child, the agency and the court must inquire - of the parents, the relatives, and anyone else with knowledge - and must document that inquiry. A statement that a grandmother was "full Cherokee" is enough to trigger the duty; the parent's belief that "the tribe will find us" does not relieve anyone, and a checkbox marked "unknown" is not an inquiry.

Notice. Notice must go by registered or certified mail with return receipt to every identified tribe and to the BIA, with enough detail (names, birthdates, places, tribal affiliation) for the tribe to determine membership, and the hearing cannot proceed until the notice period has run and the tribe has had an opportunity to intervene or request transfer to tribal court.

Consequences are procedural first, substantive second. Notice errors do not automatically require reversal in every jurisdiction, but a termination entered without notice is highly vulnerable on appeal and may be subject to invalidation. The practical remedy is a continuance: order the agency to complete and document the inquiry, send notice, and file proof of service before any termination hearing.

Active efforts, not reasonable efforts. If ICWA applies, the agency must prove active efforts to prevent the breakup of the family - a higher, case-specific standard than reasonable efforts, requiring tailored services rather than a referral list. Twenty-seven months of generic referrals with two relapses may not satisfy it.

Sequencing. Inquiry and notice first; active-efforts evidence second; best interest and qualified expert testimony third. Trying the case out of order forfeits the record.

Standards. Termination requires clear and convincing evidence of statutory grounds and a finding that termination is in the child's best interest. If ICWA applies, the standard rises to beyond a reasonable doubt that continued custody is likely to result in serious emotional or physical damage, and that finding must be supported by testimony of a qualified expert witness.

Qualified expert witness. The witness must have knowledge of the tribe's culture and child-rearing practices - a clinician with no such knowledge generally will not qualify, and a QEW's opinion that does not address the ICWA question is insufficient even if the witness is otherwise impressive. Confirm the witness's qualifications on the record before trial, not at the close of evidence.

Assessing the agency's case. Against Mother: 27 months in care, two relapses, and 11 missed visits out of 24 support grounds and support best interest. But the agency must also show active efforts tailored to a stimulant use disorder - contingency management, sober support, transportation, and scheduling around her treatment - not merely referrals.

Against Father: incarceration alone is not a ground; his monthly letters and completed parenting classes are evidence of a relationship, and the failure to assess an available paternal aunt in another state is a significant gap under state relative-placement preferences and, if ICWA applies, under its placement preferences.

Bottom line. As presented, the record has holes that will cost the agency on appeal: no documented inquiry, no notice, no active-efforts findings, and an unassessed relative. The petition is not frivolous, but it cannot be tried on this record without curing those defects.

The hearsay problem. Offered to prove an injury by the mother's friend, the statement is hearsay. The proponent must find an exception or a statute.

Medical diagnosis or treatment exception. It can cover statements to a treating therapist about symptoms, causation, and history - but only if the statement was made for diagnosis or treatment and the declarant had that purpose. If the therapist was engaged as a forensic interviewer or to develop evidence for the termination case, the exception typically does not apply, because the reliability rationale (the patient's incentive to be truthful to get treatment) is absent. Find out why the therapist was engaged before trial, not during it.

Excited utterance is unlikely. The statement's timing relative to the event is unknown; a statement made in a therapy session days or weeks later will not qualify.

Child hearsay statutes. Many jurisdictions have a specific statute admitting child statements in abuse or neglect proceedings, subject to advance notice, findings of reliability, and unavailability or trauma. Comply with the notice requirement strictly; a good statement excluded on a technical notice failure is the most avoidable loss in the case.

Confrontation. The Confrontation Clause governs criminal prosecutions; this is civil, so it does not directly apply, though some states recognize a limited due-process confrontation right in termination cases. Check the state rule.

Strategy by side. The agency should not rest on the therapist: call the pediatrician for observed injuries and the foster parent for observed behavior. The parent's counsel should object on hearsay, contest the medical-treatment purpose, demand the reliability finding, and resist any attempt to prove the identity of a perpetrator through a hearsay conduit. Also distinguish the bond testimony - bonding supports best interest but does not substitute for a statutory ground.