In re the Welfare of the Child of E.A.C.

812 N.W.2d 165, 2012 Minn. App. LEXIS 15, 2012 WL 539269
CourtCourt of Appeals of Minnesota
DecidedFebruary 21, 2012
DocketNo. A11-1562
StatusPublished
Cited by5 cases

This text of 812 N.W.2d 165 (In re the Welfare of the Child of E.A.C.) is published on Counsel Stack Legal Research, covering Court of Appeals of Minnesota primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re the Welfare of the Child of E.A.C., 812 N.W.2d 165, 2012 Minn. App. LEXIS 15, 2012 WL 539269 (Mich. Ct. App. 2012).

Opinion

OPINION

HUDSON, Judge.

On appeal from the denial of a petition to return custody, appellant argues that (a) a challenge to a petition for return of custody under the Indian Child Welfare Act, 25 U.S.C. §§ 1901-1963 (2006), requires application of all subsections of section 1912 to determine whether reunification is not in the child’s best interests, (b) the district court erred in concluding that remedial services provided to appellant five years ago satisfied ICWA’s requirement to demonstrate active efforts to provide appellant remedial services, and (c) the district court erred in determining that no showing of harm to appellant’s child was required under ICWA because appellant did not retain continued custody after voluntarily terminating her parental rights. Because (1) section 1916(a) requires district courts to apply all subsections of section 1912 in determining whether reunification is not in a child’s best interests, (2) the district court erred in concluding that the active-efforts requirement under section 1912(d) was satisfied, and (3) the district court erred by making no findings under section 1912(f), we reverse and remand.

FACTS

In 2004, child-protection proceedings began for J.M.C., an enrolled member of the Mille Lacs Band of Ojibwe (the Band), who is now 12 years old. A Crow Wing County social worker was assigned to J.M.C.’s child-protection case, and J.M.C. was removed from the care of appellant J.J.K., his biological mother, for approximately the third time. Between 2004 and 2006, J.M.C.’s behaviors included hitting, kicking, biting, bed wedding, involuntary defecation, sexual acting out, hurting animals, and .damaging property. He was diagnosed with disruptive behavior disorder, separation anxiety disorder, and questionable borderline intellect. In 2006, appellant voluntarily terminated her parental rights to J.M.C. in Crow Wing County District Court.1

In 2008, J.M.C. was adopted by E.A.C. in Aitkin County District Court. However, on December 2, 2009, E.A.C. brought J.M.C. to respondent Aitkin County Health and Human Services (Aitkin County) seeking out-of-home placement for J.M.C. because she could no longer care for him. That same day, J.M.C. was placed into a foster home with D.J., who is Native American but who is not related to J.M.C. or a member of the Band. In June 2010, E.A.C. voluntarily terminated her parental rights to J.M.C. On July 29, 2010, Aitkin County sent notice to appellant that J.M.C.’s adoptive parent had voluntarily terminated her parental rights and that, pursuant to ICWA, 25 U.S.C. § 1916, appellant could petition for return of custody of J.M.C. On March 25, 2011, appellant filed a petition for return of custody. In response, Aitkin County filed a motion to dismiss or, in the alternative, for a determination that section 1912(d), (e), and (f) did not'apply to appellant’s petition. After a prehearing conference, the district court concluded that, based on the 2006 order terminating appellant’s parental rights, the “active efforts” required by section 1912(d) “were made prior to that termination of [169]*169parental rights and, therefore, no further showing under this subparagraph shall be required.” Additionally, the district court determined that “this is not a case disrupting ‘continued custody’ of the child by [appellant] and, therefore, no further showing under” section 1912(e) or (f) was required.

The district court held an evidentiary hearing to determine whether granting appellant’s petition for return of custody was not in J.M.C.’s best interests. Four social workers and a guardian ad litem (GAL) testified. Appellant did not attend the evidentiary hearing, which the district court found reflected negatively on appellant and deprived it of critical information needed to determine the best interests of J.M.C. The district court found that J.M.C. requires 24-hour supervision due to inappropriate sexual behaviors with his siblings and while in E.A.C.’s home and that he was flourishing in the home of D.J., who wished to adopt J.M.C. Further, J.M.C.’s developmental delays require clear direction by an involved caregiver. The district court also found that J.M.C. had not expressed a desire to be reunited with appellant and that placement with D.J. was meeting J.M.C.’s day-to-day, special, and cultural needs.

In regard to appellant, the district court found that she entered in-patient chemical dependency treatment in 2007 after testing positive for intoxicants while pregnant with another child, she left the treatment program without completing it and against the advice of her treatment team, she has not maintained stable housing since 2006, she has had no contact with J.M.C. in the past five years, she has had difficulty following social-service case plans, and- she faced pending criminal charges. In addition, respondent Mille Lacs Band Family Sendees did not support J.M.C. being immediately placed with appellant, though the Band asks on appeal that appellant’s ease be remanded for findings under section 1912. A Mille Lacs social worker testified that placing J.M.C. with appellant would require that appellant develop a plan of care with Mille Lacs Band Family Services, which appellant had not done, and that ultimately, placement would largely depend on how J.M.C. responded to reunification efforts. The district court dismissed appellant’s petition, concluding that it had been proved beyond a reasonable doubt that returning J.M.C. to appellant’s custody was not in the child’s best interests.

Appellant moved for amended findings or, alternatively, a new trial, which the district court denied. This appeal follows.

ISSUES
I. Must all six subsections of 25 U.S.C. § 1912 be addressed by the district court when evaluating a petition to return custody brought under 25 U.S.C. § 1916(a)?
II. Was the requirement that “active efforts” be made to provide appellant remedial services satisfied pursuant to 25 U.S.C. § 1912(d)?
III. Must 25 U.S.C. § 1912(e) and 25 U.S.C. § 1912(f) be satisfied if appellant no longer has custody of J.M.C.?

ANALYSIS

I

Applying a statute to undisputed facts is a question of law that is reviewed de novo. In re Welfare of Child of T.T.B. & G.W., 724 N.W.2d 300, 307 (Minn.2006). Statutory interpretation begins by determining “whether the statute’s language, on its face, is clear or ambiguous.” Am. Family Ins. Grp. v. Schroedl, 616 N.W.2d 273, 277 (Minn.2000). If the statute’s language is unambiguous, the statute’s plain meaning [170]*170is applied. Brua v. Minn. Joint Underwriting Ass’n,

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Bluebook (online)
812 N.W.2d 165, 2012 Minn. App. LEXIS 15, 2012 WL 539269, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-welfare-of-the-child-of-eac-minnctapp-2012.