North Dakota Supreme Court hears arguments in parental-rights termination appeal over ICWA "active efforts"

The North Dakota Supreme Court heard oral arguments March 21, 2024, in an appeal of a juvenile court's termination of a father's parental rights in file no. 20240321. Appellant counsel Teresa Kellington asked the justices to overturn the juvenile court, saying the father had completed substance-abuse treatment, obtained housing and employment, and that terminating parental rights was a "severe injustice."

"We are here requesting that you overturn the decision of the juvenile court," Kellington told the court, and argued the record did not show the child would "probably suffer serious physical, mental, moral, or emotional harm" if returned to the father. She also disputed a procedural challenge to the appellant's brief as untimely, citing North Dakota appellate rules and Rule 6's weekend-filing provision.

State counsel Mary Melich (also appearing in the record as Mary Malek/Millek in argument) urged the court to affirm the termination, describing the case as "straightforward" and arguing the child remained a child in need of protection at trial because the father did not cooperate with the zone's case planning. "The zone and the tribe . . . were working in collaboration to make sure that this child would be able to reside with [an] ICWA placement preference home," the state argued, citing testimony from the state's qualified expert, Nicole Poitra.

A central dispute before the court concerned the Indian Child Welfare Act (ICWA) and the scope of the statute's "active efforts" requirement. Kellington told the justices that "there was nothing done in this case to help my client with his grieving and or chemical addiction," saying services such as parent-aid assignments, grief counseling, or substance-abuse referrals were not presented at trial. The state countered that caseworker testimony showed consistent attempts to locate and engage the father, that child-and-family-team meetings were conducted, and that the case involved collaboration with the tribe and relatives when the father did not participate.

Justices repeatedly questioned both sides about the facts underlying the court's prognostic findings: how many visits occurred after the father's release, what the supervised visits showed about bonding, whether the father's housing and home conditions were established at trial, and whether the juvenile court abused its discretion in finding a risk of harm sufficient to justify termination. The record cited at argument includes a petition filed January 26, 2024, trial findings dated Oct. 17, 2024, and testimony from witnesses identified in the juvenile court record (Valerie Plyler/Plyler or Flifer, Barb Oliver, and expert Nicole Poitra).

Kellington emphasized the father's post-release rehabilitation: "He started treatment. He completed treatment. He was addiction free. He maintained a law abiding life. He had employment." The state emphasized the absence of a stable parent-child bond and the court's reliance on the expert witness: the expert testified she believed active efforts had been made and that returning the child to the father would create risk because the father had not shown the ability to modify conduct.

The justices also discussed ICWA's placement preferences and tribal definitions of family (including testimony that, under tribal culture, certain first cousins may be considered siblings), which the state said supported placement with an extended family member when the father was not engaging.

After about an hour of argument and questioning, the court announced it would take the case under advisement. "This case will be taken under advisement as all cases are," the clerk stated, and the court adjourned until 10:45 a.m. No ruling was issued at the hearing.

The appeal asks the Supreme Court to resolve whether the juvenile court's factual findings and legal conclusions about future harm and ICWA's active-efforts requirement were supported by the record and whether the juvenile court abused its discretion in terminating parental rights. The court's decision will determine whether the juvenile-court termination stands or whether the father may regain the opportunity to seek reunification with his child.