In re the Welfare of the Child of R.S.

793 N.W.2d 752, 2011 Minn. App. LEXIS 7, 2011 WL 206204
CourtCourt of Appeals of Minnesota
DecidedJanuary 25, 2011
DocketNo. A10-1390
StatusPublished
Cited by1 cases

This text of 793 N.W.2d 752 (In re the Welfare of the Child of R.S.) 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 R.S., 793 N.W.2d 752, 2011 Minn. App. LEXIS 7, 2011 WL 206204 (Mich. Ct. App. 2011).

Opinion

OPINION

HUDSON, Judge.

On appeal, appellant-guardian ad litem contends that the juvenile court erred in granting respondent-tribe’s motion to transfer this preadoptive-placement proceeding to tribal court. Although the transfer-of-jurisdiction provisions of the Indian Child Welfare Act (ICWA) and the Minnesota Indian Family Preservation Act (MIFPA) do not authorize or prohibit the transfer of this preadoptive-placement proceeding to tribal court, Minnesota Rule of Juvenile Protection Procedure 48.01, subdivision 3, specifically permits such a transfer. We therefore affirm.

FACTS

The facts are undisputed. S.S. was born on January 27, 2010, to R.S., who is not Indian, and L.S., who is a member of respondent White Earth Band of Ojibwe (tribe). R.S. and L.S. have six children in common, five of whom have previously been removed from their care and custody for abuse and neglect. Only S.S. is the subject of this action.

Immediately after S.S.’s birth, respondent Fillmore County Social Services Department contacted the tribe to confirm S.S.’s eligibility for membership and to inform the tribe that the county would be filing a petition to terminate parental rights. On February 4, 2010, the tribe notified the county that S.S. was eligible for membership and that the tribe would intervene in the anticipated termination-of-parental-rights proceeding. On February 5, 2010, the county filed an expedited petition for termination of parental rights, and the juvenile court issued an emergency order awarding the county temporary care, custody, and control of S.S.

On February 10, 2010, the juvenile court issued an order stating that the proceeding would be dismissed and jurisdiction transferred to the tribe if the tribe intervened and assumed jurisdiction prior to March 9, 2010. On February 22, 2010, the tribe notified the juvenile court that it was exercising its right to intervene but not its right to assume jurisdiction and transfer the proceeding to tribal court. The tribe therefore requested that the juvenile court reconsider the portion of its February 10, [754]*7542010, order stating that the tribe’s intervention would trigger a transfer of jurisdiction. The juvenile court subsequently recognized the tribe as a party to the proceeding but never specifically ruled on the tribe’s motion for reconsideration.

On April 29, 2010, the juvenile court terminated the parental rights of R.S. and L.S. with respect to S.S. The juvenile court ordered that S.S. remain in the custody of the county and later ordered that S.S. be transferred to the custody of the commissioner of human services so that she could be placed in a permanent home.1 On June 16, 2010, the tribe filed a motion to transfer the case to tribal court; the county supported the motion. Appellant-guardian ad litem (GAL) objected to the transfer on the grounds that the proceeding was not transferrable and that, even if it were, there would be good cause to deny the transfer.

On July 28, 2010, the juvenile court granted the tribe’s motion to transfer. The juvenile court determined that ICWA applied to the proceeding and that good cause did not exist to deny the transfer.

On appeal, the GAL does not challenge the juvenile court’s determination that ICWA generally applies to this proceeding. Instead, the GAL contends that the juvenile court erred by concluding that ICWA’s transfer-of-jurisdietion provision permits the transfer of this preadoptive-placement proceeding to tribal court.2

ISSUE

Is the juvenile court permitted to transfer to tribal court a preadoptive-placement proceeding involving an Indian child who is not domiciled or residing within the tribal reservation?

ANALYSIS

“The application of a statute to essentially undisputed facts is a question of law that this court reviews de novo.” In re Welfare of Child of: T.T.B. & G.W., 724 N.W.2d 300, 307 (Minn.2006). The material facts are undisputed. Thus, the principal issue here is whether the juvenile court had the legal authority to grant the tribe’s motion to transfer this preadoptive-placement proceeding to tribal court. We begin by examining the statutory scheme of ICWA and its Minnesota equivalent, MIF-PA.3

ICWA was enacted in response to the “alarmingly high percentage” of Indian children who were being removed from Indian families by nontribal agencies and placed in non-Indian homes and institutions. 25 U.S.C. § 1901(4) (2006). ICWA’s purpose is “to protect the best interests of Indian children and to preserve stability of the Indian tribe and family.” Gerber v. Eastman, 673 N.W.2d 854, 856-57 (Minn.App.2004), review denied (Minn. Mar. 16, 2004). Similarly, MIF-PA’s purpose is to “provid[e] for participation by Indian tribes in the placement of their children.” 1985 Minn. Laws ch. 111, title, at 306; see also Essling v. Markman, 335 N.W.2d 237, 240 (Minn.1983) (stating that courts may rely on the title of a statute as an indicator of legislative intent).

Both ICWA and MIFPA therefore apply whenever an “Indian child” is subject to a [755]*755“child custody proceeding,” as is the case here.4 See In re Welfare of S.N.R., 617 N.W.2d 77, 80 (Minn.App.2000) (stating that ICWA applies to child-custody proceedings involving Indian children), review denied (Minn. Nov. 15, 2000). S.S. is an “Indian child” under ICWA and MIFPA because she is eligible for membership in the tribe and is the biological child of a member of the tribe. See 25 U.S.C. § 1903(4) (2006) (defining an “Indian child” in relevant part as a child who “is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe”); Minn.Stat. § 260.755, subd. 8(2) (2010) (defining an “Indian child” in relevant part as a child who “is eligible for membership in an Indian tribe”). This is also a “child custody proceeding” under ICWA and MIFPA. See 25 U.S.C. § 1903(1) (2006) (defining a “child custody proceeding” as a proceeding for foster care placement, termination of parental rights, preadoptive placement, or adoptive placement); Minn.Stat. § 260.755, subd. 3 (2010) (defining a “child placement proceeding” as a proceeding for involuntary foster care placement, termination of parental rights, preadoptive placement, or adoptive placement). More specifically, this is a preadoptive-placement proceeding. See 25 U.S.C. § 1903(1)(iii) (2006) (defining a “preadoptive placement” as involving “the temporary placement of an Indian child in a foster home or institution after the termination of parental rights, but prior to or in lieu of adoptive placement”); Minn.Stat. § 260.755, subd. 3(c) (2010) (substantially same).5

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Related

In re the Welfare of R.S.
805 N.W.2d 44 (Supreme Court of Minnesota, 2011)

Cite This Page — Counsel Stack

Bluebook (online)
793 N.W.2d 752, 2011 Minn. App. LEXIS 7, 2011 WL 206204, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-welfare-of-the-child-of-rs-minnctapp-2011.