In re D.S.P.

I.P. and R.A.C.P. (defendants) were the parents of D.S.P., and all held membership in the Sault Ste. Marie Tribe of Chippewa Indians (the tribe). R.A.C.P. was D.S.P.’s mother, and D.S.P. was her fifth child. R.A.C.P.’s parental rights to her other children were terminated because of neglect. D.S.P. was in R.A.C.P.’s custody until age seven months, at which point foster care became necessary due to R.A.C.P.’s unexplained habit of leaving D.S.P. with babysitters for long periods. After a while, a child-in-need-of-protection petition was filed by the State of Wisconsin (plaintiff). I.P. and R.A.C.P. were warned that if they did not maintain visits with D.S.P., their parental rights could be terminated. Yet I.P. and R.A.C.P. hardly ever visited their child and eventually failed to make contact with D.S.P. at all for more than one year. Therefore, the state sought to terminate I.P.’s and R.A.C.P.’s parental rights. At a jury trial, a representative of the tribe officially endorsed terminating parental rights. Because D.S.P. was a member of a tribe, the jury received instruction regarding the burden of proof required by the federal Indian Child Welfare Act (ICWA) and by Wisconsin state law for terminating parental rights. The ICWA was enacted to safeguard the best interests of Native American children and the stability of their families and tribes through minimal standards regarding the termination of parental rights. At a termination-of-parental-rights hearing, before granting termination, the ICWA required proof beyond a reasonable doubt that a child would suffer significant emotional and physical harm if the child remained in a parent’s custody. On the other hand, Wisconsin law required a showing by clear and convincing evidence of abandonment, which was the ground on which the termination of I.P.’s and R.A.C.P.’s parental rights was sought. Wisconsin law deferred to the ICWA. However, the ICWA did not preempt state legislation and contemplated deference to state legislation if state legislation offered greater protection. Thus, the circuit court instructed the jury that it had to find the requisite harm under the ICWA beyond a reasonable doubt and abandonment under state law by clear and convincing evidence before termination. The court terminated parental rights, and an appellate court affirmed. I.P. and R.A.C.P. sought review, with R.A.C.P. arguing that a finding of abandonment under Wisconsin law should have been beyond a reasonable doubt instead of by clear and convincing evidence.