In the Matter of the Welfare of the Children of: L.K., Parent
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Opinion
STATE OF MINNESOTA
IN SUPREME COURT
A23-1762
Court of Appeals Hudson, C.J.
In the Matter of the Welfare of the Children of: L.K., Parent.
Filed: March 11, 2026 Office of Appellate Courts
_________________________________
A24-1296
Martin County
In the Matter of the Welfare of the Children of: L.K., Parent.
Mark D. Fiddler, Rachel L. Osband, Fiddler Osband Flynn LLC, Minnetonka, Minnesota;
Timothy Sandefur, Scharf-Norton Center for Constitutional Litigation at the Goldwater Institute, Phoenix, Arizona; and
Jeffrey M. Markowitz, Arthur, Chapman, Kettering, Smetak & Pikala, P.A., Minneapolis, Minnesota, for appellants K.R. and N.R.
Taylor L. McGowan, Martin County Attorney, Amanda L. Heinrichs-Milburn, Assistant Martin County Attorneys, Fairmont, Minnesota, for respondent Human Services of Faribault and Martin Counties.
Ryan A. Gustafson, Frundt, Lundquist & Gustafson, Ltd., Blue Earth, Minnesota, for respondent L.K.
m boulette, boulette PLLC, Minneapolis, Minnesota;
Seungwon R. Chung, Abby N. Sunberg, Taft Stettinius & Hollister LLP, Minneapolis, Minnesota; and
Jody M. Alholinna, Minnesota Guardian ad Litem Program, Saint Paul, Minnesota, for respondent Guardian ad Litem McKenzie Borth.
1 Joseph Plumer, Riley Plumer, Plumer Law Office, Bemidji, Minnesota; and
Tammy J. Swanson, Swanson, Drobnick & Tousey P.C., Woodbury, Minnesota, for respondent Red Lake Nation.
Keith Ellison, Attorney General, Liz Kramer, Solicitor General, Anna L. Veit-Carter, Kaitrin C. Vohs, Assistant Attorneys General, Saint Paul, Minnesota, for intervenor Attorney General for the State of Minnesota.
Teresa Nelson, Catherine Ahlin-Halverson, Daniel R. Shulman, American Civil Liberties Union of Minnesota, Minneapolis, Minnesota; and
Crystal Pardue, American Civil Liberties Union, New York, New York, for amici curiae American Civil Liberties Union and American Civil Liberties Union of Minnesota.
Joseph F. Halloran, Christopher Smith, The Jacobson Law Group, Saint Paul, Minnesota; and
Sydney Tarzwell, Native American Rights Fund, Anchorage, Alaska, for amici curiae California Tribal Families Coalition, et al.
Robert C. Roby, RC Roby Law, PLLC, Cambridge, Minnesota, for amicus curiae Christian Alliance for Indian Child Welfare.
Brooke Beskau Warg, Hennepin County Adult Representation Services, Minneapolis, Minnesota, for amicus curiae Hennepin County Adult Representation Services.
Mallory K. Stoll, Blahnik, Prchal & Stoll, PLLC, Prior Lake, Minnesota; and
Natalie Netzel, Mitchell Hamline School of Law, Saint Paul, Minnesota, for amicus curiae Institute to Transform Child Protection.
Joseph F. Halloran, James K. Nichols, Joy P. Parker, Roxanne Reinfeld, Jacobson, Magnuson, Anderson & Halloran, P.C., Saint Paul, Minnesota; and
Sarah M. Stahelin, Leech Lake Band of Ojibwe Legal Department, Cass Lake, Minnesota, for amici curiae Leech Lake Band of Ojibwe, et al.
James R. Todd, Dewitt LLP, Minneapolis, Minnesota;
Elizabeth J. Juelich, Krueger, Juelich & Schmisek PLLC, Minnetonka, Minnesota;
Mary Catherine Lauhead, Offices of Mary Catherine Lauhead, Saint Paul, Minnesota; and
Michael D. Dittberner, Ditterberner Family Law, Ltd., Edina, Minnesota, for amicus curiae Minnesota State Bar Association, Family Law Section.
2 _________________________________
S Y L L A B U S
1. The district court did not abuse its discretion when it denied appellants’
motion to permissively intervene in a Child in Need of Protection or Services action in
juvenile court pursuant to Minnesota Rule of Juvenile Protection Procedure 34.02.
2. A petition for third-party custody filed in juvenile court is non-cognizable
and is instead properly construed as a petition for a transfer of legal and physical custody,
which may only be filed by a party to the juvenile court action.
3. A holding in a court of appeals opinion that is advisory in nature and goes
beyond the narrow issues implicated in the orders giving rise to the appeal falls outside the
appropriate scope of appellate review and warrants this court, in the exercise of its
supervisory authority, vacating that portion of the opinion.
Affirmed in part and vacated in part.
O P I N I O N
HUDSON, Chief Justice.
On April 9, 2022, twins Ki. K. and Kh. K. were born in Martin County with severe
medical problems. They are both eligible for membership in the Miskwaagamiiwi-
zaaga’iganing Tribe, also known as Red Lake Nation. Immediately following their births,
respondent Human Services of Faribault and Martin Counties (the County) filed a petition
for a Child in Need of Protection or Services (CHIPS) on behalf of both children.
Following an emergency protective care hearing, the children’s interim legal care, custody,
3 and control were transferred from their biological mother, respondent L.K., to the County.
Upon their discharge from the hospital, both twins were placed in emergency foster care
with appellants, N.R. and K.R. After approximately a year and a half, appellants learned
the twins were scheduled to move imminently and live with one of their maternal relatives.
In the twins’ CHIPS proceedings, appellants filed an emergency motion for permissive
intervention, a petition for third-party custody, and a motion to stay the move to the
maternal relative. The district court denied the motions for permissive intervention and for
a stay of the move and dismissed the petition for third-party custody. The district court did
so without addressing appellants’ argument that the Indian Child Welfare Act (ICWA) and
the Minnesota Indian Family Preservation Act (MIFPA) violate the Fifth and Fourteenth
Amendments’ guarantees of equal protection. Appellants appealed. The court of appeals
affirmed in part, reversed in part, and remanded for further proceedings on the issues of
permissive intervention and third-party custody. The court of appeals addressed appellants’
constitutional challenge as to MIFPA, over arguments that the issue was not properly before
that court.
Appellants filed a petition for review with this court, which we granted on two
issues: (1) whether ICWA and MIFPA violate the Fifth and Fourteenth Amendments’
guarantees of equal protection; and (2) whether the district court and court of appeals erred
as a matter of law in finding that the mother’s preference for placement of her children with
appellants did not constitute “good cause” to deviate from the placement preferences of
MIFPA. We heard oral argument on these two issues on September 30, 2024. At oral
argument, appellants confirmed that they had abandoned the second issue.
4 While the issue of ICWA’s and MIFPA’s constitutionality remained pending before
our court, the district court reconsidered the permissive intervention motion and the third-
party custody petition based on the court of appeals’ remand instructions. The district court
again denied permissive intervention and dismissed the petition for third-party custody.
Appellants appealed the denials to the court of appeals and then filed a petition for
accelerated review before this court, which we granted.
We now consolidate these two appeals for purposes of this decision. We hold that
the district court did not err in denying appellants’ petition for permissive intervention and
in dismissing their third-party custody petition. We therefore affirm the district court’s
decision.
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STATE OF MINNESOTA
IN SUPREME COURT
A23-1762
Court of Appeals Hudson, C.J.
In the Matter of the Welfare of the Children of: L.K., Parent.
Filed: March 11, 2026 Office of Appellate Courts
_________________________________
A24-1296
Martin County
In the Matter of the Welfare of the Children of: L.K., Parent.
Mark D. Fiddler, Rachel L. Osband, Fiddler Osband Flynn LLC, Minnetonka, Minnesota;
Timothy Sandefur, Scharf-Norton Center for Constitutional Litigation at the Goldwater Institute, Phoenix, Arizona; and
Jeffrey M. Markowitz, Arthur, Chapman, Kettering, Smetak & Pikala, P.A., Minneapolis, Minnesota, for appellants K.R. and N.R.
Taylor L. McGowan, Martin County Attorney, Amanda L. Heinrichs-Milburn, Assistant Martin County Attorneys, Fairmont, Minnesota, for respondent Human Services of Faribault and Martin Counties.
Ryan A. Gustafson, Frundt, Lundquist & Gustafson, Ltd., Blue Earth, Minnesota, for respondent L.K.
m boulette, boulette PLLC, Minneapolis, Minnesota;
Seungwon R. Chung, Abby N. Sunberg, Taft Stettinius & Hollister LLP, Minneapolis, Minnesota; and
Jody M. Alholinna, Minnesota Guardian ad Litem Program, Saint Paul, Minnesota, for respondent Guardian ad Litem McKenzie Borth.
1 Joseph Plumer, Riley Plumer, Plumer Law Office, Bemidji, Minnesota; and
Tammy J. Swanson, Swanson, Drobnick & Tousey P.C., Woodbury, Minnesota, for respondent Red Lake Nation.
Keith Ellison, Attorney General, Liz Kramer, Solicitor General, Anna L. Veit-Carter, Kaitrin C. Vohs, Assistant Attorneys General, Saint Paul, Minnesota, for intervenor Attorney General for the State of Minnesota.
Teresa Nelson, Catherine Ahlin-Halverson, Daniel R. Shulman, American Civil Liberties Union of Minnesota, Minneapolis, Minnesota; and
Crystal Pardue, American Civil Liberties Union, New York, New York, for amici curiae American Civil Liberties Union and American Civil Liberties Union of Minnesota.
Joseph F. Halloran, Christopher Smith, The Jacobson Law Group, Saint Paul, Minnesota; and
Sydney Tarzwell, Native American Rights Fund, Anchorage, Alaska, for amici curiae California Tribal Families Coalition, et al.
Robert C. Roby, RC Roby Law, PLLC, Cambridge, Minnesota, for amicus curiae Christian Alliance for Indian Child Welfare.
Brooke Beskau Warg, Hennepin County Adult Representation Services, Minneapolis, Minnesota, for amicus curiae Hennepin County Adult Representation Services.
Mallory K. Stoll, Blahnik, Prchal & Stoll, PLLC, Prior Lake, Minnesota; and
Natalie Netzel, Mitchell Hamline School of Law, Saint Paul, Minnesota, for amicus curiae Institute to Transform Child Protection.
Joseph F. Halloran, James K. Nichols, Joy P. Parker, Roxanne Reinfeld, Jacobson, Magnuson, Anderson & Halloran, P.C., Saint Paul, Minnesota; and
Sarah M. Stahelin, Leech Lake Band of Ojibwe Legal Department, Cass Lake, Minnesota, for amici curiae Leech Lake Band of Ojibwe, et al.
James R. Todd, Dewitt LLP, Minneapolis, Minnesota;
Elizabeth J. Juelich, Krueger, Juelich & Schmisek PLLC, Minnetonka, Minnesota;
Mary Catherine Lauhead, Offices of Mary Catherine Lauhead, Saint Paul, Minnesota; and
Michael D. Dittberner, Ditterberner Family Law, Ltd., Edina, Minnesota, for amicus curiae Minnesota State Bar Association, Family Law Section.
2 _________________________________
S Y L L A B U S
1. The district court did not abuse its discretion when it denied appellants’
motion to permissively intervene in a Child in Need of Protection or Services action in
juvenile court pursuant to Minnesota Rule of Juvenile Protection Procedure 34.02.
2. A petition for third-party custody filed in juvenile court is non-cognizable
and is instead properly construed as a petition for a transfer of legal and physical custody,
which may only be filed by a party to the juvenile court action.
3. A holding in a court of appeals opinion that is advisory in nature and goes
beyond the narrow issues implicated in the orders giving rise to the appeal falls outside the
appropriate scope of appellate review and warrants this court, in the exercise of its
supervisory authority, vacating that portion of the opinion.
Affirmed in part and vacated in part.
O P I N I O N
HUDSON, Chief Justice.
On April 9, 2022, twins Ki. K. and Kh. K. were born in Martin County with severe
medical problems. They are both eligible for membership in the Miskwaagamiiwi-
zaaga’iganing Tribe, also known as Red Lake Nation. Immediately following their births,
respondent Human Services of Faribault and Martin Counties (the County) filed a petition
for a Child in Need of Protection or Services (CHIPS) on behalf of both children.
Following an emergency protective care hearing, the children’s interim legal care, custody,
3 and control were transferred from their biological mother, respondent L.K., to the County.
Upon their discharge from the hospital, both twins were placed in emergency foster care
with appellants, N.R. and K.R. After approximately a year and a half, appellants learned
the twins were scheduled to move imminently and live with one of their maternal relatives.
In the twins’ CHIPS proceedings, appellants filed an emergency motion for permissive
intervention, a petition for third-party custody, and a motion to stay the move to the
maternal relative. The district court denied the motions for permissive intervention and for
a stay of the move and dismissed the petition for third-party custody. The district court did
so without addressing appellants’ argument that the Indian Child Welfare Act (ICWA) and
the Minnesota Indian Family Preservation Act (MIFPA) violate the Fifth and Fourteenth
Amendments’ guarantees of equal protection. Appellants appealed. The court of appeals
affirmed in part, reversed in part, and remanded for further proceedings on the issues of
permissive intervention and third-party custody. The court of appeals addressed appellants’
constitutional challenge as to MIFPA, over arguments that the issue was not properly before
that court.
Appellants filed a petition for review with this court, which we granted on two
issues: (1) whether ICWA and MIFPA violate the Fifth and Fourteenth Amendments’
guarantees of equal protection; and (2) whether the district court and court of appeals erred
as a matter of law in finding that the mother’s preference for placement of her children with
appellants did not constitute “good cause” to deviate from the placement preferences of
MIFPA. We heard oral argument on these two issues on September 30, 2024. At oral
argument, appellants confirmed that they had abandoned the second issue.
4 While the issue of ICWA’s and MIFPA’s constitutionality remained pending before
our court, the district court reconsidered the permissive intervention motion and the third-
party custody petition based on the court of appeals’ remand instructions. The district court
again denied permissive intervention and dismissed the petition for third-party custody.
Appellants appealed the denials to the court of appeals and then filed a petition for
accelerated review before this court, which we granted.
We now consolidate these two appeals for purposes of this decision. We hold that
the district court did not err in denying appellants’ petition for permissive intervention and
in dismissing their third-party custody petition. We therefore affirm the district court’s
decision. With respect to the court of appeals’ decision, the only issue still contested by
the parties is whether ICWA and MIFPA violate constitutional requirements of equal
protection. But we conclude that because appellants are not proper parties to the CHIPS
proceedings, it is not appropriate to pass on their constitutional challenge. And because it
was likewise unnecessary for the court of appeals to do so, we vacate the portion of the
court of appeals’ decision addressing the constitutionality of MIFPA.
FACTS
The following facts are established from the record on appeal, including the CHIPS
petition, reports filed with the district court, and pretrial hearings. See Minn. R. Civ. App.
5 P. 110.01 (stating the record on appeal includes the documents filed in the trial court and
the transcript of the proceedings). 1
Initial Placement with Foster Parents
Kh. K. and Ki. K. are Indian children 2 who were born in acute medical distress on
April 9, 2022. The County filed a CHIPS petition three days after their births, alleging that
they were medically neglected, lacked the level of care required for their physical health,
were without proper parental care, and were in an environment that could be injurious to
their health. Following an emergency protective care hearing on April 14, 2022, the district
court transferred the children’s interim legal care, custody, and control to the County. The
1 In general, the facts in this case are undisputed. The record is limited to the facts and guardian ad litem reports as established in the district court up to the time of the filing of the second appeal. However, two parties—the mother and appellants—ask us to take judicial notice of new facts that arose during the pendency of this appeal. Because these facts are irrelevant to our decision in this case, we will not take judicial notice of them. See Plowman v. Copeland, Buhl & Co., 261 N.W.2d 581, 583 (Minn. 1977) (“It is well settled that an appellate court may not base its decision on matters outside the record on appeal, and that matters not produced and received in evidence below may not be considered.”). For that same reason, we grant the guardian ad litem’s motion to strike the factual developments in footnote 16 of appellants’ principal brief and page 14 of appellants’ reply brief in the second appeal. 2 We use the term “Indian” in this opinion because “Indian” and “Indian child” are used by both ICWA and MIFPA and hold a statutorily defined meaning. See 25 U.S.C. §§ 1903(3), (4) (defining “Indian” as “any person who is a member of an Indian tribe, or who is an Alaska Native and a member of a Regional Corporation”; and defining “Indian child” as “any unmarried person who is under age eighteen and is either (a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe”); Minn. Stat. § 260.755, subds. 7, 8 (2024) (using the same definition of “Indian” person as ICWA; and defining “Indian child” as “an unmarried person who is under age 18 and is: (1) a member of an Indian tribe; or (2) eligible for membership in an Indian tribe”). Ki. K. and Kh. K. are Indian children because they are eligible for membership in Red Lake Nation.
6 district court issued an order after the hearing finding that the Indian Child Welfare Act
(ICWA), see 25 U.S.C. §§ 1901–63, and the Minnesota Indian Family Preservation Act
(MIFPA), see Minn. Stat. §§ 260.751–.835 (2024), applied to the proceedings because of
the twins’ eligibility for membership in Red Lake Nation. 3
Due to the severity of the medical complications with which the children were born,
both Kh. K. and Ki. K. spent several weeks in the hospital after their births. Kh. K. was
discharged on April 20, 2022, and placed in a foster home with appellants, who are licensed
foster parents but are not eligible for membership in an Indian tribe. Ki. K. remained in
the hospital for several weeks after her brother’s discharge, before her later release to
appellants’ home on May 16, 2022. Both twins remained at risk for developmental delays
and other long-term risk factors and required ongoing medical support.
According to reports by a County social worker and a guardian ad litem (GAL)
assigned to the case, appellants were diligent and loving foster parents. Among other
things, they created a Native American cultural plan to connect the children with their tribal
heritage and facilitated visits with the twins’ biological mother. The foster parents took the
twins to all their medical appointments, and doctors reported seeing positive growth and
recovery in both children over the course of the one year that the twins lived with
appellants. Parental reunification efforts on behalf of the County, the GAL, Red Lake
Nation, and the mother were ongoing during this time. The County also instituted a case
3 We agree with the district court’s determination that ICWA and MIFPA apply.
7 plan with the mother to return her to parental fitness and achieve family reunification in
compliance with Minnesota Statutes section 260C.212 (2024).
September 12, 2023 Motion to Stay Placement with Maternal Relatives
In July 2023, Red Lake Nation conducted a relative search for the twins’ long-term
placement options. The Tribe contacted one of the twins’ maternal aunts, R.F., who was a
registered foster parent, a member of Red Lake Nation, and who had one of the twins’ half-
siblings in her care. R.F. indicated she was willing and able to take the twins. Shortly
before the planned move, the County informed appellants that the twins would be
transitioned into R.F.’s care on September 13, 2023, and sent them details about the
logistics of the transfer of physical placement. As the logistics evolved, appellants
communicated with the County, Red Lake Nation, and the GAL about the planned
transition. On September 12, 2023, before the twins had left appellants’ home, appellants
filed an emergency motion to stay the change of placement and to intervene in the twins’
CHIPS proceedings.
In their September 12, 2023 emergency motion, appellants made four arguments:
(1) that the court should grant them permissive intervention into the CHIPS proceedings as
being in the best interests of the children pursuant to Minnesota Rules of Juvenile
Protection Procedure 34.02; (2) in the alternative, the court should grant them party status
to allow for them to file a transfer of legal custody permanency petition; (3) the court should
make a finding that “good cause” exists under the placement preferences articulated in
ICWA to temporarily place the children with them due to (a) the mother’s preference for
placement with them, and (b) the children’s extraordinary medical needs; and (4) the court
8 should issue a declaratory judgment that MIFPA and ICWA are unconstitutional under the
Equal Protection Clauses of the United States Constitution’s Fifth and Fourteenth
Amendments. In addition to the motion, appellants filed an affidavit in which they alleged
that the mother told them numerous times that she supported the twins’ permanent
placement with appellants and that she opposed placement with R.F. Appellants also
alleged that the County had “repeatedly represented to [them] that [they] were the preferred
long-term placement for the twins,” and that moving the twins to R.F.’s home would take
the twins farther away from their medical team and their mother. Appellants
simultaneously filed a notice of their constitutional challenge with the Minnesota and
United States attorneys general. Respondent parties—the County, Red Lake Nation, and
the GAL—all opposed the motion. The mother supported the motion.
In a September 13, 2023 emergency hearing, the parties agreed to defer
consideration of the constitutional and permissive intervention issues and requested that
the court determine only the issue of temporary placement. The court agreed to do so. The
court also noted that it had not received independent verification from the mother—aside
from the claims in appellants’ affidavit—as to her placement preference for the twins.
On September 15, 2023, the district court ordered that the change of placement to
R.F. was to continue as planned. In a subsequent written order, the court made the
following findings: (1) it was in the children’s best interests to allow the County to continue
to have temporary custody over the children with the authority to place the children in
alternative care; and (2) no good cause existed to deviate from ICWA, MIFPA, and the
general child custody statutes’ temporary placement preferences, under which R.F. would
9 be the designated preferred placement because she is a member of Red Lake Nation, she
has the children’s half-sister in her care, and she was approved as a placement option by
the Tribe.
In September 2023, a few days after the hearing, the twins were formally moved
from appellants to live with R.F. Nine months later, in June 2024, the twins were moved
from R.F.’s house to that of their maternal grandmother, M.L., where they currently reside.
The GAL’s reports to the court—up to the time of the second appeal—continued to indicate
that the twins were thriving in their grandmother’s care: the grandmother lives close to
their doctors; lives in the same neighborhood as their mother, who visits once a week; has
one of the twins’ other siblings in her care; and is a member of Red Lake Nation.
October 4, 2023 Amended Motion to Intervene in CHIPS Proceeding
On October 4, 2023, appellants amended their motion to intervene in the CHIPS
proceeding in juvenile court. See Minn. R. Juv. Prot. P. 34.02 (stating that “[a]ny person
may be permitted to intervene as a party if the court finds that such intervention is in the
best interests of the child”). Their only change was to request that the court join them as
necessary parties to the proceedings, arguing that “joinder is[] (a) necessary for a just and
complete resolution of the matter; and (b) in the best interests of the child.” See Minn. R.
Juv. Prot. P. 35. Concurrently, appellants filed a petition for third-party custody in juvenile
court. 4 They alleged that they are interested third parties pursuant to Minnesota Statutes
4 Juvenile court actions are governed by Minnesota Statutes chapter 260C (2024). The original jurisdiction of the juvenile court includes CHIPS matters, “permanency
10 section 257C.03, subdivisions 7(a)(1)(i)–(iii), and that it is in the best interests of the
children for appellants to have sole legal and physical custody. 5 See Minn. Stat. § 257C.03,
subd. 7(a)(2). The GAL opposed the amended motion for intervention, disputed that there
was good cause to place the children with appellants, and moved to dismiss the petition for
third-party custody. The County opposed granting appellants permissive intervention. The
mother supported appellants’ motion for permissive intervention or necessary party status
and also filed an affidavit stating that she supported the twins’ placement with appellants
and did not want them with R.F. Red Lake Nation opposed the motion for permissive
intervention and moved to dismiss the petition for third-party custody.
On October 5, 2023, the court held a hearing to discuss the amended motion for
intervention and the petition for third-party custody. All parties agreed that the
constitutional issues should be bifurcated from the permissive intervention and third-party
custody claims, and the Minnesota Attorney General’s Office reserved its right to argue the
constitutional issues. The district court made the following determinations in an order
dated October 31, 2023: (1) appellants are not interested third parties for purposes of a
third-party custody petition; and (2) appellants’ intervention should be denied because it is
not in the best interests of the children for them to be placed with appellants. The
matters, including termination of parental rights,” “postpermanency reviews,” and “adoption matters.” Minn. Stat. § 260C.001, subd. 1(b) (2024). 5 Minnesota Statutes chapter 257C (2024) governs third-party and de facto custody proceedings. Ordinarily such proceedings are brought in family court. See Minn. Stat. § 257C.03, subd. 1(a) (providing that such proceeding may be brought “[i]n a court of this state with jurisdiction to decide child custody matters”).
11 constitutional issues were not addressed in that order. On November 20, 2023, appellants
appealed the September order denying the motion to stay placement and the October order
denying intervention and dismissing the third-party custody petition.
First Appeal of District Court’s Orders
The court of appeals ruled on four issues in a divided precedential opinion issued
June 3, 2024. In re Welfare of Child. of L.K. & A.S., 9 N.W.3d 174 (Minn. App. 2024).
First, the court considered whether the district court abused its discretion in denying
appellants permissive intervention in the juvenile court proceeding. Id. at 183–85.
Minnesota Rule of Juvenile Protection Procedure 34.02 governs permissive intervention in
juvenile court and states: “Any person may be permitted to intervene as a party if the court
finds that such intervention is in the best interests of the child.” The court of appeals ruled
that the district court erred by “considering circumstances relevant to placement but not
relevant to intervention.” L.K., 9 N.W.3d at 184 (emphasis added). It reversed the district
court’s order denying appellants permissive intervention and remanded for the district court
to reconsider the motion in light of the best interests of the children in terms of intervention.
Id. at 185.
The court of appeals then turned to the district court’s decision to dismiss appellants’
third-party custody petition, which was filed in the juvenile court’s CHIPS file. Id.
at 185–86. The court of appeals first addressed whether appellants were “interested third
parties” within the scope of Minnesota Statutes section 257C.03, which enables interested
third parties who are not parents to petition for custody of a child. L.K., 9 N.W.3d at
186–87. The statute’s “definition of ‘interested third party’ provides that the term ‘does
12 not include an individual who has a child placed in the individual’s care’ through a custody
consent decree, ‘a court order or voluntary placement under chapter 260C [foster care],’ or
an adoption.” Id. at 186 (emphasis added) (quoting Minn. Stat. § 257C.01, subd. 3(b)
(2022)). Thus, the court of appeals reasoned that this first issue turned on whether
“interested third party” excluded all foster parents who had ever had a child placed in their
care or excluded only foster parents who currently had a child in their home. Id. The court
of appeals majority ultimately concluded that the statute excludes only current foster
parents from petitioning for third-party custody, and because appellants did not have the
twins in their home when they filed the petition, they were not categorically excluded by
section 257C.01, subdivision 3(b). Id. at 187.
The court also addressed the proposition, presented by the GAL as an alternative
ground of affirmance, that appellants are not permitted to file a third-party custody petition
in a CHIPS case to which they are not a party. Id. The court of appeals first recognized
that, based on its precedent in Stern v. Stern, 839 N.W.2d 96 (Minn. App. 2013), it is “the
juvenile court [that] has jurisdiction over appellants’ petition.” L.K., 9 N.W.3d at 188. And
the court of appeals expressly left open that, “on remand, the district court [may]
determine[] that appellants’ third-party-custody petition should not have been filed in the
pending CHIPS case.” 6 Id. The court of appeals only rejected the specific argument made
by the GAL that Minn. R. Juv. Prot. P 32.02(e)—which states that “part[ies] shall have the
6 The court of appeals also left open the possibility that, on remand “the district court may direct appellants to file [a third-party custody petition] in a new case.” L.K., 9 N.W.3d at 188.
13 right to . . . bring motions before the court”—on its own compels that “a person must be a
party to a pending CHIPS case before filing a third-party custody petition in that case.”
L.K., 9 N.W.3d at 188.
The third issue the court of appeals addressed concerned the district court’s decision
to temporarily place the twins with the maternal aunt rather than with appellants. Id. at
188–91. Both MIFPA and ICWA provide ranked preferences for temporary out-of-home
placements. See 25 U.S.C. § 1915(b) (ICWA’s placement preferences); Minn. Stat.
§ 260.773, subd. 3 (incorporating the order of ICWA’s placement preferences). However,
a court may depart from the preferences upon a finding of good cause. 7 Minn. Stat.
§ 260.773, subd. 10(2). Appellants argued that the district court erred when it determined
that the good-cause exceptions advanced by appellants did not apply. The court of appeals,
however, concluded that the district court did not err in rejecting appellants’ arguments that
there was good cause to depart from the placement preferences based on (1) the mother’s
attestation to the court that she preferred the twins stay with appellants and (2) the twins’
medical needs. L.K., 9 N.W.3d at 190–91. The court of appeals thus affirmed the district
court’s order that preferred placement with R.F., and in turn, with the grandmother M.L.
Id. at 198.
7 See Minn. Stat. § 260.773, subd. 10(2)(i), (iii) (“The court shall follow the placement preferences . . . except as follows: . . . where the court determines there is good cause based on: the reasonable request of the Indian child’s parents . . . [or] the testimony of a qualified expert designated by the Indian child’s Tribe . . . that supports placement outside the order . . . due to extraordinary physical or emotional needs of the Indian child that require highly specialized services . . . .”).
14 Finally, the court of appeals turned to the merits of the constitutionality of MIFPA. 8
Although the court of appeals acknowledged that the district court had not decided the
issue, and that appellate courts are generally limited to considering only those issues that
were considered by the district court, the court of appeals nevertheless concluded that the
issue was properly before it because, among other things, it had been presented to the
district court and it was potentially decisive of the controversy on the merits. Id. at 192–93.
The panel split in determining whether appellants had standing to challenge MIFPA, with
the majority finding that appellants had standing because they suffered an injury in fact.
Id. at 193–94. The court of appeals further concluded that MIFPA is subject to the rational-
basis test, id. at 197–98, and that the statute is constitutional because it survives rational-
basis review, id. at 198, 205–10 (Reyes, J., concurring in part and dissenting in part)
(disagreeing with the court of appeals that appellants had standing to challenge the statute,
but agreeing that if it were to reach the issue, the statute is constitutional).
Appellants petitioned our court for further review of the third and fourth issues,
concerning the good-cause exceptions and the constitutionality of MIFPA and ICWA,
which we granted. Although appellants sought (and we granted) review of the issue of the
good-cause exceptions, they abandoned it before our court. 9 Regarding MIFPA’s
8 Although appellants challenged the constitutionality of both ICWA and MIFPA, the court of appeals considered only the constitutionality of MIFPA “because the district court relied on MIFPA’s placement preferences in denying appellants’ motion to stay the change of placement.” L.K., 9 N.W.3d at 194. 9 Specifically, appellants did not address the issue in their briefing, and when asked at oral argument, they acknowledged that they had abandoned it.
15 constitutionality, as explained further below, we conclude that the court of appeals erred
by addressing that issue, and accordingly, we vacate that part of the court of appeals’
decision.
July 24, 2024 Order Reconsidering Appellants’ Motions on Remand
No petition for review was sought from the court of appeals’ remand order on
appellants’ permissive intervention motion and third-party custody petition. The district
court took up these issues again in an order dated July 24, 2024. 10 In that order, the district
court noted that the twins continued to do well in M.L.’s care, and that the mother had filed
an amended affidavit indicating her support for the children’s placement with M.L. The
district court then considered whether appellants permissive intervention was in the best
interests of the children in terms of intervention and concluded that it was not. It reasoned
that although appellants were seasoned foster parents and had genuine love for the twins,
their knowledge of the twins’ physical, medical, and emotional needs was stale given that
the twins had not been in appellants’ home for nearly one year. The court expressed
concern that appellants’ actions “indicate[d] a disregard for or a lack of understanding
about the importance of” the twins’ tribal heritage. It pointed to appellants’ petition for
third-party custody over the Tribe’s objections and their claims that ICWA and MIFPA are
unconstitutional as indications that their participation in the case would be a disadvantage.
It also noted that appellants had allowed the mother to visit the children on numerous
10 Appellants’ petition for further review was filed on June 12, 2024. We granted the petition for further review on July 2, 2024, after the district court held a hearing on June 21, 2024 based on the court of appeals’ remand instructions, but before the district court issued its order on July 24, 2024.
16 occasions without the County’s knowledge and had urged the mother to support their
petition for custody against her better judgment.
In the same order, the district court reconsidered appellants’ petition for third-party
custody in the CHIPS case. The court first determined that the petition was procedurally
improper. Relying on Stern, 839 N.W.2d at 98, 104, the district court found that here, “the
third-party custody petition could not have been filed in family law court.” The district
court also concluded, however, that “[t]here is no right to file a third-party petition for
custody within a juvenile protection matter” because Minnesota Rules of Juvenile
Protection Procedure 33.01, 34.02, and 35 are “an exhaustive list of the procedures
available to an individual who seeks a status from which to assert a custody claim for the
children or participate in a juvenile protection matter.” And the court further concluded
that a third-party custody petition would be “impractical” in a juvenile protection
proceeding because, among other things, “there is simply no reason to risk a third-party
custody petition disrupting a child protection matter where there are multiple avenues for
a qualified individual to become a party or participant within a juvenile protection matter
under the juvenile protection rules and statutes.”
In the alternative, the district court stated that even if its procedural decision were
to be reversed, appellants would still not be entitled to an evidentiary hearing on the merits,
and the petition would fail for that reason. In reaching that conclusion, the court considered
twelve statutory factors under Minnesota Statutes section 257C.04, subdivision 1 (2024),
to determine whether appellants proved by a preponderance of the evidence that it is in the
children’s best interests to be in their custody. The court weighed those factors and
17 concluded that appellants’ petition and affidavit did not allege sufficient facts to prove that
they would satisfy the criteria to be considered interested third parties and that appellants’
custody would be in the children’s best interests. Therefore, the court concluded that
appellants could not satisfy the test laid out in Lewis-Miller v. Ross, 710 N.W.2d 565, 570
(Minn. 2006), which only entitles a third party to an evidentiary hearing when the facts
alleged, if proven, would satisfy section 257C.03, subdivision 7. The court ultimately
dismissed appellants’ third-party custody petition and denied their motion for permissive
intervention in the existing CHIPS proceeding.
Second Appeal of District Court’s Order
After the district court issued its order, appellants moved in this court for a stay of
further district court proceedings, including the stay of a pending motion by Red Lake
Nation to transfer the CHIPS case to Tribal court. See Minn. R. Juv. Prot. P. 31.01, subd. 1
(“At any stage in the proceedings, an Indian child’s parent, Indian custodian, or tribe may
request transfer of the juvenile protection matter to the Indian child’s tribe . . . .”). We
granted the stay in part, prohibiting the district court from transferring this matter to tribal
court until we ordered the stay lifted.
Appellants also filed a second appeal, No. A24-1296, contesting the district court’s
July 24, 2024 order denying their intervention motion and dismissing their third-party
custody petition. The court of appeals stayed that appeal pending oral argument before this
court on the first appeal. On October 7, 2024, immediately following oral argument with
our court on the first appeal, appellants filed a petition for accelerated review in this court
as to the second appeal, which we granted. Appellants raised four new issues in the second
18 appeal: (1) whether the district court violated appellants’ constitutional rights to petition
the government by prohibiting their intervention in the CHIPS case based on their good-
faith challenges to existing law; (2) whether the district court erred by denying appellants’
motion for permissive intervention under Minnesota Rule of Juvenile Protection
Procedure 34.02; (3) whether the district court erred by denying appellants an evidentiary
hearing to establish interested-third-party status pursuant to Minnesota Statutes
section 257C.03 (2024); and (4) whether the district court erred in dismissing appellants’
third-party custody petition. We heard oral argument on these four issues on April 1, 2025.
We have consolidated the two appeals for the purposes of this opinion.
ANALYSIS
We address in this opinion the issues raised in both appeals. The only issue
remaining from the first appeal is the constitutionality of ICWA and MIFPA. 11 That issue
is an important one that justified our grant of review of this case. But that issue can be
raised only by a proper party to the CHIPS proceedings. Accordingly, a threshold question
in these consolidated appeals is whether appellants were proper parties to the CHIPS case.
Appellants sought party status in two ways: by seeking permissive intervention and by
11 The other question appellants raised in their first appeal is whether the district court erred in finding that there was not good cause to deviate from MIFPA’s temporary out-of- home placement preferences when it placed the twins with their maternal relatives rather than with appellants. See Minn. Stat. § 260.773, subd. 10(2); 25 U.S.C. § 1915(b). Because appellants abandoned this issue at oral argument in their first appeal and in their briefing, we do not address it. See Lang v. Chicago & N.W. Ry. Co., 295 N.W. 57, 62 (Minn. 1940) (“Assignments of error made without any argument or discussion whatever must be deemed abandoned.”); Melina v. Chaplin, 327 N.W.2d 19, 20 (Minn. 1982) (“This issue was not argued in the briefs and accordingly must be deemed waived.”).
19 filing a petition for third-party custody. The district court denied appellants party status
under both routes. Considering each route in turn, we first conclude that the district court
did not abuse its discretion when it denied appellants’ permissive intervention motion. We
then turn to the question of whether the district court erred when it dismissed appellants’
petition for third-party custody filed in juvenile court, and we conclude it did not. Because
we affirm the district court’s decisions on both issues, we hold that appellants are not parties
in the twins’ CHIPS case.
Accordingly, we do not address appellants’ equal protection arguments—on which
we granted review—because appellants are not parties to the case and because the district
court’s decision on intervention was not predicated on the foster parents’ tribal eligibility
status. We further conclude that the court of appeals erred by addressing appellants’ equal
protection arguments given that doing so was not necessary to resolve the orders before it
on appeal, and we therefore vacate its opinion as it pertains to the constitutionality of ICWA
and MIFPA. We now explain the reasoning for our decision.
I.
A.
The first question before us is whether the district court erred in denying appellants’
motion for permissive intervention into the twins’ open CHIPS case. We review a district
court’s denial of permissive intervention under an abuse of discretion standard. Norman v.
Refsland, 383 N.W.2d 673, 676 (Minn. 1986).
20 1.
We begin with an overview of the juvenile protection statutes, as relevant to this
case. “The paramount consideration in all juvenile protection proceedings is the health,
safety, and best interests of the child.” Minn. Stat. § 260C.001, subd. 2(a) (2024). 12 These
proceedings exist to “identify[] and protect[] abused children.” In re Welfare of Child of
R.D.L., 853 N.W.2d 127, 134 (Minn. 2014). Once any child is adjudicated in need of
protection or services, see Minn. Stat. § 260C.141 (2024), the child’s custody is vested in
the State, and simultaneous legal proceedings begin along two separate tracks pursuant to
Minnesota Statutes sections 260.012(a) (2024) and 260C.223, subdivision 1(b) (2024).
The first track requires the State’s social services agency to “eliminate the need for removal
and to reunite the child with the child’s family at the earliest possible time”—that is, it must
prioritize reunification. Minn. Stat. § 260.012(a). The second track is “concurrent
permanency planning” and requires the agency to “develop an alternative permanency plan
while making reasonable efforts for reunification.” Minn. Stat. § 260C.223, subd. 1(b).
ICWA and MIFPA apply to both tracks and also require the State to make “active efforts”
12 In 2024 and 2025, after the twins’ CHIPS action was commenced in district court, the Legislature amended MIFPA and the child welfare statutes. See, e.g., Act of May 18, 2024, ch. 115, art. 17, §§ 1–49, 2024 Minn. Laws 1544, 1685–708 (codified as amended at Minn. Stat. §§ 260.751–.835 (2024)); id., ch. 115, art. 17, § 51, subd. 1(n), 2024 Minn. Laws at 1711 (codified at Minn. Stat. § 260C.178 (2024)); id., art. 18, §§ 36–39, 2024 Minn. Laws at 1737–46 (codified as amended at Minn. Stat. §§260C.212–.515); Act of June 14, 2024, ch. 3, art. 10, §§ 17–30, 2025 Minn. Laws 1st Spec. Sess. 1730, 1732–47 (codified as amended at Minn. Stat. §§ 260C.178–.452). These amendments are not applicable to this case and do not change our analysis.
21 to prevent the breakup of the Indian family. Minn. Stat. § 260C.221, subd. 1(b) (2024);
25 U.S.C. § 1912(d).
For the purposes of concurrent permanency planning, child welfare law requires
consideration of the “availability of relatives and other concerned individuals to
provide . . . permanent placement . . . .” Minn. Stat. § 260C.223, subd. 2(3) (2024). The
statute imposes an ongoing responsibility on the social services agency to “conduct a
relative search . . . and engage relatives in case planning and permanency planning,”
“consider placing the child with relatives” in a specific order, and “place siblings . . . in the
same home.” Minn. Stat. § 260.012(e)(3)–(5) (2024). The County conducted a relative
search and identified R.F. and then M.L. as suitable possibilities for the twins’ future
permanent placement.
Once a CHIPS petition is filed and children are placed in out-of-home care—as the
twins were when they were placed in appellants’ home—the social services agency is
required to create a temporary out-of-home placement plan. 13 Minn. Stat. § 260C.212,
subd. 1. For non-Indian children, the temporary out-of-home placement hierarchy
prioritizes “placement with relatives in the following order”:
(1) with an individual who is related to the child by blood, marriage, or adoption, including the legal parent, guardian, or custodian of the child’s sibling; or (2) with an individual who is an important friend of the child or of the child’s parent or custodian, including an individual with whom the child has resided
13 A temporary out-of-home placement plan governs, among other things, where a child will stay while the CHIPS matter is adjudicated and family reunification efforts are pursued. See Minn. Stat. § 260C.212, subd. 1(c).
22 or had significant contact or who has a significant relationship to the child or the child’s parent or custodian. Id., subd. 2(a). Indian children’s temporary out-of-home placement preferences are
governed by ICWA and MIFPA. See 25 U.S.C. § 1915(b); Minn. Stat. §§ 260C.212,
subd. 2(a), 260.773 (2024). “[T]he Indian child shall be placed in the least restrictive
setting which most approximates a family and in which the Indian child’s special needs, if
any, may be met.” Minn. Stat. § 260.773, subd. 1. Preference is to be given to a placement
with:
(1) a noncustodial parent or Indian custodian; (2) a member of the Indian child’s extended family; (3) a foster home licensed, approved, or specified by the Indian child’s Tribe; (4) an Indian foster home licensed or approved by an authorized non-Indian licensing authority; or (5) an institution for children approved by an Indian Tribe or operated by an Indian organization which has a program suitable to meet the Indian child’s needs. Id., subd. 3. ICWA and MIFPA also enumerate several good-cause exceptions to deviate
from the enumerated placement preferences for Indian children. See 25 U.S.C. § 1915(b);
Minn. Stat. § 260.773, subd. 10(2). The structure of CHIPS proceedings is for the child to
live in the temporary out-of-home placement until either family reunification is
successful—which is the preferred option—or there is an adoption, transfer of custody, or
other permanency placement. See Minn. Stat. § 260.012 (2024).
The Minnesota Rules of Juvenile Protection Procedure specifically list who may be
a party in a CHIPS matter. The parties that “shall” be included are the GAL; the legal
custodian; for Indian children, the child’s parents, the child’s Indian custodian, and the
23 child’s tribe; and the petitioner, which here, is the County. Minn. R. Juv. Prot. P. 32.01,
subd. 1(a)–(d). The rule further provides that any person who intervenes pursuant to
Rule 34, is joined pursuant to Rule 35, 14 or “is deemed by the court to be important to a
resolution that is in the best interests of the child,” shall also be a party to the juvenile
protection matter. Id., subd. 1(e)–(g). As to intervention, Rule 34.01 provides the child
who is the subject of the CHIPS matter, grandparents, non-custodial parents, and social
services agencies intervention as of right. Minn. R. Juv. Prot. P. 34.01. And Rule 34.02
allows for permissive intervention of “[a]ny person” if intervention is in the best interests
of the child. Minn. R. Juv. Prot. P. 34.02. As for foster parents, Rule 33.02, subdivision 2,
states that “any foster parent . . . shall have a right to be heard in any hearing regarding the
child” but “does not require that a foster parent . . . be made a party to the matter.” Minn.
R. Juv. Prot. P. 33.02, subd. 2. Appellants moved for permissive intervention in the twins’
case under Rule 34.02.
2.
On appeal, appellants assert that the district court abused its discretion when it
denied their permissive intervention motion for the second time. Specifically, they allege
that the district court neglected to weigh a key factor indicating that appellants’ intervention
would be in the best interests of the children, namely that they had familiarity with the
twins’ medical needs. They also assert that the district court did not give sufficient weight
14 The court is permitted to “join a person or entity as a party if the court finds that joinder is: (a) necessary for a just and complete resolution of the matter; and (b) in the best interests of the child.” Minn. R. Juv. Prot. P. 35.
24 to their claim that judicial economy is best served by allowing them to permissively
intervene, rather than pursuing separate litigation—even if their intervention might delay
or broaden the proceedings. All four respondent parties argue that the district court did not
abuse its discretion because the juvenile rules provide the district court with discretion to
deny an intervention that does not serve the children’s best interests in terms of
intervention.
Rule 34.02 does not specify what the “best interests” are in terms of intervention.
See Minn. R. Juv. Prot. P. 34.02 (“Any person may be permitted to intervene as a party if
the court finds that such intervention is in the best interests of the child.”); cf. Minn. Stat.
§ 260C.212, subd. 2(b) (listing 10 best-interests factors in terms of placement). 15 The
overarching question in deciding a permissive intervention motion is whether the
individual’s participation as an intervenor “is in the best interests of the child.” See Minn.
R. Juv. Prot. P. 34.02. We rely on the district court’s sound discretion to answer that
question. See Valentine v. Lutz, 512 N.W.2d 868, 871 (Minn. 1994) (“We believe the
decision to allow persons to intervene other than those allowed by our rule or statute is one
that should remain within the sound discretion of the trial court.”). In answering that
15 The court of appeals has addressed this issue and has not identified specific best- interests factors that should guide a Rule 34.02 permissive intervention analysis. See In re Welfare of Child. of M.L.S., 964 N.W.2d 441, 452 (Minn. App. 2021) (“Rule 34.02 does not specify what circumstances a district court should consider in determining the best interests of the child in granting or denying intervention.”); L.K., 9 N.W.3d at 185 n.1 (recognizing that M.L.S. did not “endorse or prescribe any statutory factors for determining the best interests of a child on a motion for permissive intervention”). Likewise, the parties before us do not urge us to adopt any specific factors, and we decline to do so.
25 question here, we hold that the district court did not abuse its discretion in denying
appellants’ permissive intervention motion.
Our decision in Valentine v. Lutz—affirming a district court’s decision to deny foster
parents’ intervention in a CHIPS proceeding—shows the extent to which we defer to the
district court in this context. Id. at 871. In Valentine, a social services agency was granted
temporary custody of J.A.D. in a CHIPS proceeding. Id. at 869. The agency temporarily
placed J.A.D. with foster parents due to J.A.D.’s significant medical needs. Id. J.A.D.
remained with the foster parents for over three years. Id. At that point, the biological
mother requested that the agency consider permanent placement and custody with the
mother’s sister and brother-in-law. Id. After visitation and conducting a home study at the
relatives, the agency informed the foster parents of J.A.D.’s impending move to his
relatives. Id. The foster parents responded in several ways, including moving for the right
to intervene in the CHIPS proceedings involving J.A.D. and for a transfer of his custody to
them. Id. at 869–70. The district court denied both motions. Id. at 870.
On appeal, the foster parents argued the court abused its discretion by denying their
permissive intervention motion. See id. at 871. We noted that “[i]n certain circumstances,
it may be appropriate for a trial court to allow foster parents to intervene, either as parties
to the action or on a more limited basis.” Id. We also pointed out that the foster parents
had “provide[d] excellent care for a child [who had special medical needs] for an extended
period, [and] may have information which can assist a trial court in making its decisions in
a CHIPS proceeding[].” Id. However, we ruled against the foster parents and affirmed the
denial of the motion to intervene because “the decision to allow persons to intervene other
26 than those allowed by our rule or statute is one that should remain within the sound
discretion of the trial court.” Id.
That same analysis guides our decision here. There is no dispute that appellants
provided excellent care to the twins while they were living in appellants’ foster home,
which the district court acknowledged in its order denying permissive intervention. And
as we acknowledged in Valentine, foster parents often have information about the child that
is helpful to a district court in making its placement decisions, which weighs in favor of
their intervention. Id. at 871 (“Foster parents . . . may have information which can assist a
trial court in making its decisions in a CHIPS proceeding[].”). But the discretion properly
lies with the district court to determine whether that information would be helpful.
Moreover, as respondents point out, Minnesota’s child custody framework—which
governs all juvenile protection cases of non-Indian and Indian children alike—mandates
individualized consideration of a child’s best interests. See Minn. Stat. § 260C.212. And
for all children, the juvenile protection statutes require “preserv[ing] and strengthen[ing]
the child’s family ties whenever possible and in the child’s best interest[.]” Valentine,
512 N.W.2d at 871 (emphasis added) (citation omitted) (internal quotation marks omitted).
Here, after the court of appeals’ remand order, the district court conducted a
determination of the twins’ best interests specific to the question of intervention.
Specifically, the district court considered both the advantages and the disadvantages that
might be realized if appellants were made parties to the CHIPS case. As one advantage, it
considered appellants’ history with the twins—including that they “attended to the
children’s physical, medical, and emotional needs tirelessly”—which might have “offered
27 insight into the children’s care, such as coping strategies and schedules that proved
successful.” As another advantage, it included the fact that appellants “are well seasoned
parents” who “genuinely care about the children and have an attachment to them.”
But the district court also considered the possible disadvantages of including
appellants as parties. Notably, the district court was “concerned” that appellants being
given party status would “unnecessarily encumber[]” the CHIPS proceedings, particularly
because the court “has every reason to believe [appellants] would contest any placement
or action taken in regard to the children other than placement with” appellants. And
although the district court acknowledged that appellants “expressed an interest in
supporting the children with their indigenous identity,” it found that their “actions indicate
a disregard for or a lack of understanding about the importance of that heritage,” and so
“their participation in this case would be a disadvantage.” 16 Finally, the district court found
that appellants’ actions towards the twins’ mother raised questions about their judgment,
given that she was “seemingly not in a place at that time to offer a clear judgment regarding
the children’s placement.”
Ultimately, the district court concluded that the disadvantages of appellants being
permitted to intervene “far outweigh the possible advantages.” The district court reasoned
that appellants’ familiarity with the twins’ medical history and developmental progress—
which appellants asserted should be counted in their favor—is information that could be
16 Appellants argue that the district court disregarded their “commitment to—and plan for—raising the twins with a strong indigenous identity.” But the district court acknowledged that they “expressed an interest in” doing so.
28 provided to the court directly by the medical providers and the social workers’ reports. It
also emphasized that the CHIPS action would be over-burdened if appellants intervened as
parties because the twins’ best interests were adequately represented by the GAL, the Tribe,
and their mother. Although the court considered the information appellants provided to the
court in support of their motion to intervene, it did not, on balance, find their participation
to be helpful in the CHIPS proceeding because the information they could provide was
largely redundant. And the district court expressed concern that appellants’ “strong
attachment to the children has created a bias that would only hinder and harm the
progression of the children’s protection proceeding,” because “they could not see the value
in any other placement for the children.” 17 The district court denied the motion for
permissive intervention for these reasons.
17 Appellants claim that it was “non-sensical” for the district court to conclude that, as appellants put it, “because of Appellants’ love and commitment to the twins, it is not in the twins’ best interests for them to intervene.” Appellants’ argument is unpersuasive. Although the district court did not doubt that appellants “genuinely care about the children and have an attachment to them,” the court concluded that attachment would, on balance, lead to unnecessary delay in the resolution of the proceedings. As appellants acknowledge, the purpose of CHIPS proceedings is to serve the best interests of the children by reuniting them with their family or, failing that, to prepare them for a permanent placement with relatives or other concerned individuals. It was not an abuse of discretion for the district court to conclude that appellants’ “strong attachment to the children” would not serve those interests based on its finding that “they could not see the value in any other placement for the children” and “would contest any placement or action taken in regard to the children other than placement with them.” See In re Welfare of Child of R.K., 901 N.W.2d 156, 162 (Minn. 2017) (holding that juvenile protection proceedings “require an expeditious resolution of permanency because we will not allow children to linger in uncertainty”); In re Welfare of J.R., Jr., 655 N.W.2d 1, 5 (Minn. 2003) (stating that “child protection cases . . . in particular need to be expeditiously handled”).
29 In reaching its decision, the district court did not clearly “mak[e] findings
unsupported by the evidence,” nor did it “improperly apply[] the law.” In re Custody of
N.A.K., 649 N.W.2d 166, 174 (Minn. 2002). The decision to deny a nonparty’s
intervention—including that of the foster parents—is within the district court’s purview.
See Valentine, 512 N.W.2d at 871. Moreover, we note that the same district court judge
has presided over this matter since 2022 and is intimately familiar with the parties, the
appellants, and the children. We therefore hold that the district court did not abuse its
discretion by denying appellants’ permissive intervention motion in the twins’ existing
CHIPS case in juvenile court.
B.
Appellants also argue that the district court violated their First Amendment right to
petition the government when it denied their intervention in the CHIPS proceedings.
Specifically, appellants point to the district court’s statement in its order denying their
permissive intervention that “motion[ing] [the district] Court to find ICWA and MIFPA
unconstitutional” gave support to its finding that “their participation in this case would be
a disadvantage.” The GAL and the County disagree and argue that the district court did
not infringe on appellants’ rights. We agree with respondents.
Appellants assert that the district court violated their right to petition the government
by considering their assertion of their constitutional challenge to ICWA and MIFPA as
among the reasons to deny intervention. “[T]he Petition Clause [of the First Amendment]
protects the right of individuals to appeal to courts and other forums established by the
government for resolution of legal disputes.” Borough of Duryea, Pa. v. Guarnieri,
30 564 U.S. 379, 387 (2011); see U.S. Const. amend. I (“Congress shall make no
law . . . abridging the . . . right of the people . . . to petition the Government for a redress
of grievances.”); Virginia v. Black, 538 U.S. 343, 358 (2003) (applying the First
Amendment to the states through the Fourteenth Amendment). We take the protection of
that right seriously.
Appellants’ specific argument is that the district court retaliated against them by
using their challenges to ICWA and MIFPA as factors that weighed against them in their
permissive intervention motion. “[A]s a general matter the First Amendment prohibits
government officials from subjecting an individual to retaliatory actions” on the basis of
their constitutionally protected speech. Hartman v. Moore, 547 U.S. 250, 256 (2006). In
some circumstances, therefore, a cause of action may exist when government actors
exercise authority in retaliation for exercising the right to speak or to petition the
government. See, e.g., id. (alleging criminal prosecution in retaliation for speech); Mt.
Healthy City School Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 281–87 (1977) (alleging
employment action in retaliation for speech); Goff v. Burton, 7 F.3d 734, 736–38 (8th Cir.
1993) (alleging transfer of prisoner in retaliation for filing legal action); Ligons v. Hagen,
No. A04-1851, 2005 WL 2128619, at *4 (Minn. App. Sep. 6, 2005) (alleging disciplinary
action against prisoner in retaliation for exercising “right of access to the courts”). To have
a cause of action, there must be a causal connection between the exercise of the
constitutional right and the retaliatory action. Hartman, 547 U.S. at 260. “If there is a
finding that retaliation was not the but-for cause [of the government action], . . . the claim
fails for lack of causal connection between unconstitutional motive and resulting harm,
31 despite proof of some retaliatory animus in the official’s mind.” Id. That is because an
official action “colored by some degree of bad motive” may not merit relief “if that action
would have been taken anyway.” Id. (citing Crawford-El v. Britton, 523 U.S. 574, 593
(1998), and Mt. Healthy, 429 U.S. at 285–86). The exercise of the protected right must do
more than merely “play[] a part” in the adverse action because there is no constitutional
violation if the government actor “would have reached the same decision . . . even in the
absence of” the exercise of that right. Mt. Healthy, 429 U.S. at 285, 287.
Appellants have not drawn to our attention any decision directly supporting the
principle that a court violates the First Amendment when it considers a prospective
intervenor’s presentation of a good-faith legal argument in the lawsuit as a basis for
denying intervention. But, assuming without deciding that such principle is valid, we
conclude that there was no violation here, for two reasons.
First, it is not clear that the district court’s decision denying intervention reflects
retaliatory animus stemming from appellants’ exercise of their right to challenge the
constitutionality of ICWA and MIFPA. The district court identified two possible
advantages, and four possible disadvantages, to making appellants parties to the CHIPS
proceeding. One of the disadvantages was that, in the district court’s view, appellants had
“a disregard for or a lack of understanding about the importance of [the twins’ indigenous]
heritage.” And in support of that conclusion, the district court focused its attention on
actions that it perceived as denigrating “the children’s tribal identity,” as evidenced by their
opposition, on multiple occasions, to the actions of the Tribe. It was in that context that it
mentioned that appellants “motioned this Court to find ICWA and MIFPA
32 unconstitutional.” In short, it appears that the district court considered appellants’
challenge to ICWA and MIFPA to be indicative of appellants’ “attitude toward the
importance of the children’s tribal identity.” We do not perceive that determination by the
district court to be evidence of retaliation.
Second, even assuming the district court’s finding regarding appellants’ attitude
toward the twins’ indigenous heritage was inappropriately affected by their challenge to
ICWA and MIFPA, its order demonstrates that appellants’ attitude toward tribal matters
was not the decisive factor in the district court’s analysis as required for relief in any claim
of retaliation for protected speech. Instead, the district court emphasized its concern that
appellants’ “strong attachment to the children has created a bias that would only hinder and
harm the progression of the children’s protection proceeding,” because “they could not see
the value in any other placement for the children.” Such a concern strongly supports the
district court’s conclusion that it would not be in the children’s best interests for appellants
to be parties in the CHIPS proceeding.
In short, we hold that the district court properly conducted a robust analysis of the
best interests of the child as to intervention in this case, consistent with what Rule 34.02,
the child custody statutes, and our case law require. We are confident that the district
court’s decision was guided by the applicable law, not by appellants’ decision to challenge
ICWA’s and MIFPA’s constitutionality.
33 * * *
In sum, the district court did not abuse its discretion when it denied appellants’
permissive intervention motion. Accordingly, appellants are not parties to the CHIPS
action.
II.
Next, we turn to the issue of whether the district court erred by dismissing
appellants’ petition for third-party custody, which they filed into the existing CHIPS case
in juvenile court. We conclude that such a petition is non-cognizable in juvenile court and
that, even if we were to construe appellants’ third-party custody petition as a petition for a
transfer of permanent legal and physical custody—as it should be properly considered in
juvenile court—it was not error for the district court to dismiss it without an evidentiary
hearing because appellants are not parties to the CHIPS action. Our analysis follows.
After the remand order from the court of appeals, the district court addressed the
procedural question of whether appellants were allowed to file a third-party petition for
custody within a juvenile protection proceeding, rather than in a separate case file in family
court. The court dismissed the third-party petition for custody without holding an
evidentiary hearing. Appellants assert that the district court erred by dismissing the petition
without holding an evidentiary hearing. We disagree.
The question of whether the district court erred in dismissing the petition involves
the interpretation and application of the relevant statutes and the Minnesota Rules of
Juvenile Protection Procedure. We review this question de novo. In re Estate of Figliuzzi,
34 979 N.W.2d 225, 231 (Minn. 2022) (“We review the interpretation and application of
statutes and the rules of . . . procedure de novo.”). The statute governing this CHIPS
proceeding is Minnesota Statutes chapter 260C, which the Legislature has directed “may
be cited as the juvenile protection provisions of the Juvenile Court Act.” Minn. Stat.
§ 260C.001, subd. 1(a) (2024). Minnesota Statutes section 260C.101, subdivision 1
(2024), states that “[t]he juvenile court has original and exclusive jurisdiction in
proceedings concerning any child who is alleged to be in need of protection or services.”
Subdivision 2, in turn, extends the juvenile court’s “original and exclusive jurisdiction” to
“[o]ther matters relating to children.” Id., subd. 2 (2024).
As the court of appeals reasoned in Stern v. Stern, the statute provides a clear and
unambiguous grant of jurisdiction to the juvenile court over any permanency matters
pertaining to children who are subject to protection proceedings. 839 N.W.2d at 100 (citing
Minn. Stat. § 260C.101, subds. 1, 2); see also Minn. Stat. § 260C.001, subd. 3(2) (2024)
(“The purpose of the laws relating to permanency . . . is to ensure that . . . if placement with
the parents is not reasonably foreseeable, to secure for the child a safe and permanent
placement . . . .”). We conclude that Stern correctly states the law. Because the twins are
subject to protection proceedings, the juvenile court has exclusive jurisdiction over the
twins’ placement. Therefore, appellants’ petition seeking permanent custody of the twins
35 invokes the jurisdiction of the juvenile court and would need to be filed in the existing
juvenile court action. 18
The juvenile protection provisions of the Juvenile Court Act provide that when an
individual seeks permanent custody of a child in juvenile court, the proper procedural
action is to file a petition for a transfer of legal and physical custody. Minn. Stat.
§ 260C.515, subd. 4(a) (2024) (“The court may order a transfer of permanent legal and
physical custody to: (1) a parent . . . ; or (2) a fit and willing relative . . . .”). In contrast,
the procedural mechanism used by appellants here, a third-party custody petition, is not
contained within the juvenile protection provisions of the Juvenile Court Act and is thus
inapplicable to this juvenile court proceeding. See Minn. Stat. § 257C.03, subd. 1 (a “third-
party child custody proceeding may be brought by an individual other than a parent by
filing a petition seeking custody[.]”).
This conclusion is supported by Stern. In Stern, the grandmother-petitioner filed a
petition for de facto custody in family court, 19 seeking permanent custody of her
grandchildren under Minnesota Statutes section 257C.03, subdivision 6 (2012). Stern,
18 The court of appeals directed that appellants may file their third-party custody petition in a new case file if, upon remand, the district court determined that it should not have been filed in the pending CHIPS case. L.K., 9 N.W.3d at 188. That command was erroneous: there may be only one pending juvenile-court matter regarding a particular child. 19 See Minn. Stat. § 257C.01, subd. 2(a) (2024) (defining “[d]e facto custodian” as “an individual who has been the primary caretaker for a child who has, within the 24 months immediately preceding the filing of the petition, resided with the individual without a parent present and with a lack of demonstrated consistent participation by a parent” for a statutorily-defined period of time).
36 839 N.W.2d at 98. However, a CHIPS action involving the grandchildren had already been
opened in juvenile court, and “the children were under the protective custody of the
county.” Id. And the grandmother had already filed a petition in the CHIPS proceeding
under Minn. Stat. § 260C.515, subd. 4 (2012). Stern, 893 N.W.2d at 98. The family court
dismissed the petition for de facto custody, concluding that it did not have concurrent
jurisdiction over that petition. Id. at 99.
The court of appeals in Stern conducted a well-reasoned statutory interpretation
analysis of the child welfare statutes and concluded that the juvenile court maintained
exclusive original jurisdiction over the children because the CHIPS action was already
pending. Id. at 99–104. The court of appeals observed that the Juvenile Court Act
“contains numerous provisions that allow relatives and private parties to seek permanent
legal and physical custody of children in CHIPS and permanency proceedings,” id. at 104,
including a petition to transfer permanent legal and physical custody under Minnesota
Statutes section 260C.515, subdivision 4 (2012), id. at 101. Because the grandmother had
already filed such a petition in juvenile court, the court of appeals concluded that the family
court was without concurrent jurisdiction over the grandmother’s petition for de facto
custody and affirmed the dismissal of that petition in family court. Stern, 839 N.W.2d at
104.
We apply the same reasoning here. The juvenile court has original and exclusive
jurisdiction in proceedings, such as those here, concerning any child who is alleged to be
in need of protection or services. See Minn. Stat. § 260C.101, subd. 1. And those juvenile
court proceedings are governed by Minnesota Statutes chapter 260C, which contains the
37 juvenile protection provisions of the Juvenile Court Act. See Minn. Stat. § 260C.001,
subd. 1(a). Thus, once a CHIPS proceeding has begun in juvenile court, and while juvenile
court proceedings remain pending, the juvenile court has exclusive jurisdiction and the
appropriate pathway to transfer permanent custody of a child is a motion to transfer
permanent legal and physical custody under section 260C.515, subdivision 4. A petition
for third-party custody under section 257C.03, subdivision 1, is non-cognizable in juvenile
court. 20 Because appellants intended to acquire legal and physical custody of the twins,
any filing in juvenile court should have been construed as a petition for transfer of legal
and physical custody under section 260C.515—the juvenile protection statute—rather than
a third-party custody petition.
Critically, both the relevant statute and the Rules of Juvenile Protection Procedure
limit who may bring a petition for transfer of legal and physical custody. Minnesota
Statutes § 260C.515, subdivision 4(d), states that “[a]nother party to the permanency
20 Appellants argue that, because Minnesota Statutes section 257C.03, subdivision 1(a), allows a third-party custody proceeding to be brought “[i]n a court of this state with jurisdiction to decide child custody matters,” and because the juvenile court has jurisdiction over proceedings “concerning any child” who is the subject of a CHIPS petition, Minn. Stat. § 260C.101, subd. 1, their third-party custody proceeding was properly brought in juvenile court. We disagree. Although the juvenile court had jurisdiction over appellants’ motion, that does not necessarily mean that it was properly brought before that court. Permanency proceedings in juvenile court are governed by Minnesota Statutes section 260C.503 to 260C.521. See Minn. Stat. § 260C.101, subd. 2(2). Those procedures, not those in chapter 257C, are the appropriate ones for proceedings in juvenile court. Given the “numerous provisions that allow relatives and private parties to seek permanent legal and physical custody of children in CHIPS and permanency proceedings,” Stern, 839 N.W.2d at 104, we are unpersuaded that the Legislature intended, by its language in Minn. Stat. § 257C.03, subd. 1(a), to authorize third-party and de facto custody petitions in juvenile court.
38 proceeding regarding the child may file a petition to transfer permanent legal and physical
custody to a relative.” (Emphasis added.) Similarly, Minnesota Rule of Juvenile Protection
Procedure 54.03, subdivision 1, which applies to such petitions, states: “The county
attorney may file a permanent placement petition in juvenile court to determine the
permanent placement of a child. . . . [A]nd any other party may seek only termination of
parental rights or transfer of permanent legal and physical custody to a relative.” 21
(Emphasis added.) Both the statute and the rule therefore contemplate that petitions for
custody may only be brought by parties to the CHIPS proceeding.
In turn, the Minnesota Rules of Juvenile Protection Procedure govern who is
automatically included and who may be joined as a party in a juvenile court proceeding.
See Minn. R. Juv. Prot. P. 32.01, subd. 1. Rule 35 allows the court, in its discretion, to join
any party if it is “necessary for a just and complete resolution of the matter” and it is “in
the best interests of the child.” 22 And Rule 33.01(i), provides that “any other person who
21 Appellants argue in their second reply brief that they should be allowed to file a petition to transfer permanent legal and physical custody to appellants as qualified “relative[s]” under Minnesota Statutes section 260C.515, subdivision 4(d), and section 260C.007, subdivision 27 (2024). The GAL moved to strike this argument as outside the scope of the appellate record. We consider “only those issues that the record shows were presented and considered by the trial court in deciding the matter before it.” Maslowski v. Prospect Funding Partners LLC, 994 N.W.2d 293, 302 (Minn. 2023). Because the district court did not consider a motion under this statute and because the other parties did not have a chance to address the argument, we grant the GAL’s motion to strike. See also Minn. R. Civ. App. P. 128.02, subd. 3 (providing that an appellant’s “reply brief must be confined to new matter raised in the brief of the respondent”). 22 Additionally, Minnesota Rule of Juvenile Protection Procedure 34 provides that the child, grandparents, non-custodial parents, and responsible social services agencies may
39 is deemed by the court to be important to a resolution that is in the best interests of the
child” may participate in the juvenile protection matter. 23 Foster parents are not explicitly
mentioned in any of these rules. Instead, Rule 33.02, subdivision 2, states that “any foster
parent . . . shall have a right to be heard in any hearing regarding the child,” but “does not
require that [they] . . . be made a party to the matter.” In sum, foster parents such as
appellants have no right to be joined as a party to a CHIPS proceeding unless the court
finds it is in the best interests of the child in terms of intervention. Nonparty participants,
including “current foster parents,” Minn. R. Juv. Prot. P. 33.01(g), are entitled to “notice,”
“legal representation,” “being present at hearings,” and “offering information at the
discretion of the court,” Minn. R. Juv. Prot. P. 33.02, subd. 1, but only parties may “bring
motions before the court,” Minn. R. Juv. Prot. P. 32.02(e). 24
After considering these rules, the district court found that appellants had no
authority to file a permanency petition in the existing matter because they are not parties.
It reiterated that appellants’ joinder would provide no benefit to the court in resolving the
CHIPS matter. We agree with the district court’s reasoning and hold that appellants are
intervene as a matter of right, while any person may permissively intervene if the court finds intervention is in the child’s best interests. Minn. R. Juv. Prot. P. 34.01, 34.02. 23 Minnesota Rule of Juvenile Protection Procedure 32.01, subdivision 1(g) also provides that persons deemed by the court to be important to a resolution shall be made a party to the juvenile protection matter. 24 And Minnesota Statutes section 260C.515, subdivisions 4(c)–(d), is likewise clear that, aside from “[t]he responsible social services agency,” only “[a]nother party to the permanency proceeding regarding the child may file a petition to transfer permanent legal and physical custody.”
40 foreclosed from filing a permanency petition in the CHIPS proceedings because they are
not parties. 25
Appellants also argue that they are entitled to an evidentiary hearing to establish
their interested-third-party status on the merits under section 257C.03, subdivision 7. In
Lewis-Miller v. Ross, we considered whether a petitioner in a child-custody proceeding was
entitled to an evidentiary hearing to determine whether she had established interested-third-
party status for the purpose of acquiring custody of her late sister’s children. 710 N.W.2d
at 568. We ultimately held that in order to be entitled to a hearing on the third-party custody
petition, the petitioner must allege facts that, if proven, would satisfy the criteria of the
interested-third-party custody statute—section 257C.03, subdivision 7. Lewis-Miller,
710 N.W.2d at 570.
25 The court of appeals concluded, without analysis and in response to the GAL’s alternate argument for affirmance, that Minnesota Rule of Juvenile Protection Procedure 32.02 “does not compel [the] result” that “a person must be a party to a pending CHIPS case before filing a third-party-custody petition in that case.” L.K., 9 N.W.3d at 188. That ruling became the law of the case upon the district court and court of appeals. See In re Welfare of M.D.O., 462 N.W.2d 370, 375 (Minn. 1990) (providing that under the law-of- the-case doctrine, “when a court decides upon a rule of law, that decision should continue to govern the same issues in subsequent stages in the same case” (citation omitted) (internal quotation marks omitted)). But the district court based its subsequent decision on grounds independent from the court of appeals’ reasoning under Rule 32.02. And in any event, the law of the case doctrine in no way limits our ability to address the legal issue here. See Peterson v. BASF Corp., 675 N.W.2d 57, 66 (Minn. 2004) (explaining that “[t]he law of the case doctrine does not generally bar a higher court from reviewing an earlier decision of a lower court”), vacated on other grounds, 544 U.S. 1012 (2005); State v. Dahlin, 753 N.W.2d 300, 305 n.7 (Minn. 2008) (“We are not generally barred ‘from reviewing an earlier decision of a lower court’ ” by the law-of-the-case doctrine. (quoting BASF, 675 N.W.2d at 66)).
41 But the Lewis-Miller framework for determining whether a petitioner is entitled to
an evidentiary hearing—which appellants argue they are entitled to—does not apply to
juvenile court proceedings such as this one. See Minn. Stat. § 257C.03, subds. 2, 7
(establishing an interested third party’s requirements for an evidentiary hearing); Lewis-
Miller, 710 N.W.2d at 569–70 (applying the section 257C.03, subdivision 7, requirements
to a family court third-party custody petition). Because appellants’ petition is properly
construed as a transfer of legal and physical custody in juvenile court, we do not reach
appellants’ arguments that the district court erred in dismissing their third-party custody
petition without an evidentiary hearing. Third-party custody petitions under Minnesota
Statutes section 257C.03 are a family court remedy, but the twins’ CHIPS proceeding falls
under the original and exclusive jurisdiction of the juvenile court. The district court
therefore did not err in denying appellants’ petition without a hearing. 26
III.
Finally, we turn to appellants’ argument that ICWA violates the equal-protection
principle of the Fifth Amendment and MIFPA violates the Equal Protection Clause of the
Fourteenth Amendment to the United States Constitution. U.S. Const. amends. V, XIV, § 1;
Bolling v. Sharpe, 347 U.S. 497, 498–99 (1954) (requiring, as part of due process, equal
protection from the federal government). The Equal Protection Clause commands that no
state shall “deny to any person within its jurisdiction the equal protection of the laws,” U.S.
26 Because we are affirming the district court’s dismissal of appellants’ third-party custody petition, we do not address the mother’s arguments on appeal that the custody petition is invalid because it does not satisfy certain statutory notice and procedural requirements. See 25 U.S.C. § 1912(a); Minn. Stat. § 257C.03, subd. 3(a)(3).
42 Const. amend. XIV, § 1, which is “essentially a direction that all persons similarly situated
should be treated alike.” City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432,
439 (1985). For the reasons discussed below, this issue is no longer properly before our
court, nor was it proper for the court of appeals to address the issue in its opinion.
The crux of appellants’ constitutional challenge to ICWA and MIFPA is that those
laws impermissibly “injure Appellants because their custody petition is treated differently”
because they are not eligible for membership in a tribe whereas the twins are. Appellants
assert that ICWA and MIFPA subject them to unequal treatment by requiring Minnesota
courts to impose different, more burdensome processes on their custody petition solely
because their race and national origin differ from the Indian children they seek to adopt.
Appellants also argue that ICWA’s and MIFPA’s placement preferences provide less
protection for the individual rights of Indian foster children than non-Indian foster children.
This argument, however, is premised upon the notion that appellants have a proper custody
petition before the court through either their third-party custody or permissive intervention
motions. We address each avenue in turn.
Regarding the third-party custody petition, when we first granted review on the
constitutionality issue, the propriety of appellants’ custody petition was not before us, and
the court of appeals had remanded that question to the district court. But for the reasons
explained above, we have now concluded that the third-party custody petition appellants
filed is non-cognizable in juvenile court, and appellants, as non-parties, are likewise
ineligible to file a petition for a transfer of legal and physical custody of the kind permitted
43 in juvenile court. Moreover, the reasons why appellants are ineligible to file such a petition
for custody in this juvenile court matter do not rest in any way upon ICWA or MIFPA.
Given our holding that appellants have no cognizable custody petition in this juvenile court
matter, there is likewise no cognizable basis for our court to address appellants’
constitutional challenge to ICWA and MIFPA.
Regarding the permissive intervention motion, we need not further consider
appellants’ arguments because they stem from the false premise that the district court’s
review of appellants’ permissive intervention motion considered the children’s tribal
eligibility. Because the child custody statutes mandate an individualized consideration of
the children’s needs, the district court was required to abide by that requirement regardless
of whether the children or the foster parents are eligible for membership in an Indian tribe.
See Minn. Stat. § 260C.212, subd. 1(b). Moreover, one “purpose of the laws relating to
juvenile protection proceedings is . . . to preserve and strengthen the child’s family ties
whenever possible and in the child’s best interests.” Minn. Stat. § 260C.001, subd. 2(b)(3).
As discussed above, our careful review of the record indicates that the district court
conducted a painstaking review of whether appellants’ permissive intervention was in the
best interests of the children in terms of intervention. In conducting that review, the court
did not consider appellants’ tribal eligibility as a factor. Nor is there any language in
Minnesota Rule of Juvenile Procedure 34.02—which governs permissive intervention—
that would require the court to consider appellants’ tribal eligibility status in making its
intervention decision. See Minn. R. Juv. Pro. P. 34.02 (“Any person may be permitted to
44 intervene as a party if the court finds that such intervention is in the best interests of the
child.”).
Rather, the court appropriately considered whether appellants’ intervention would
provide redundant information to the court, and whether the twins’ best interests were
already represented by the existing parties. 27 It also found that some of appellants’
interactions with the twins’ mother were concerning. It did not abuse its discretion when
it determined that permissive intervention was not in the twins’ best interests for
adjudicating the CHIPS action. Because appellants’ tribal eligibility status was not a basis
for the district court’s decision, we do not reach the question of whether ICWA and MIFPA
are constitutional. That question is not implicated by the current procedural posture of this
case.
We also must consider whether it was premature for the court of appeals to consider
the constitutionality of MIFPA in appellants’ first appeal from the district court’s order
denying appellants’ motion to stay temporary placement with the twins’ maternal relatives
and the order denying appellants’ motion for intervention and dismissing the third-party
custody petition. See L.K., 9 N.W.3d at 191–99; id. at 209–10 (Reyes, J., concurring in
27 Nor is the question of whether ICWA and MIFPA are constitutional implicated by the denial of permissive intervention to appellants. Appellants only argue that they were injured by ICWA and MIFPA in the permissive intervention context “[t]o the extent the district court believed that for Appellants merely to challenge ICWA/MIFPA’s constitutionality . . . itself . . . warrants excluding them from court.” But we rejected that argument for reasons already explained and concluded that the district court’s decision to deny permissive intervention was guided by the applicable law, not by appellants’ decision to challenge ICWA’s and MIFPA’s constitutionality.
45 part and dissenting in part). 28 The court of appeals majority structured its analysis by
addressing and resolving appellants’ issues in the following order: First, it remanded on
the motion for permissive intervention. Id. at 183–85. Then it remanded on the dismissal
of the third-party custody petition. Id. at 186–88. Next, it concluded that the district court
did not err by finding that there was not good cause to deviate from ICWA’s and MIFPA’s
placement preferences for temporary out-of-home placement. 29 Id. at 188–91; see
25 U.S.C. § 1915(b); Minn. Stat. § 260.773, subd. 3. Finally, the majority considered
whether MIFPA is constitutional. L.K., 9 N.W.3d at 191–98.
Based on our careful review of the court of appeals’ opinion, it is clear that MIFPA’s
constitutionality had no bearing on the court of appeals’ determinations of whether the
district court erred in the decisions it made during the pendency of the twins’ CHIPS
proceedings. Moreover, as we have explained, on remand, ICWA and MIFPA did not bear
on the district court’s decision to grant or deny permissive intervention. See Minn. R. Juv.
Prot. P. 34.02.
Furthermore, as the court of appeals recognized, “[a] reviewing court must generally
consider ‘only those issues that the record shows were presented and considered by the
trial court in deciding the matter before it.’ ” L.K., 9 N.W.3d at 192 (quoting Thiele v. Stich,
28 The dissent disagreed with the court of appeals’ holding that appellants had standing to challenge MIFPA and that the issue was properly before the court, but it agreed that if it were to reach the issue, MIFPA is subject to rational-basis review and is constitutional. L.K., 9 N.W.3d at 205–10 (Reyes, J., concurring in part and dissenting in part). 29 We granted review of this issue in appellants’ first appeal, but, as we explained, they forfeited it at oral argument and in their briefing.
46 425 N.W.2d 580, 582 (Minn. 1988)). The court of appeals likewise recognized that the
district court did not rule on appellants’ constitutional challenges. Nevertheless, the court
of appeals considered appellants’ challenge properly before it based on the principle that
an appellate court may decide an argument not passed on below if the argument “could be
decisive of the controversy on the merits, if the facts are undisputed, and if ‘there is no
possible advantage or disadvantage to either party in not having had a prior ruling by the
trial court on the question.’ ” Id. (quoting Watson v. United Servs. Auto. Ass’n, 566 N.W.2d
683, 687 (Minn. 1997)). But it clearly did not need to decide those issues in order to
address the issues that were properly before it. And as the current proceedings illustrate,
the constitutionality of MIFPA and ICWA was not decisive of the controversy.
We were faced with similar circumstances in Pike v. Gunyou, 491 N.W.2d 288
(Minn. 1992). In that case, we confronted a court of appeals majority that extended beyond
the scope that was required to adjudicate the issues on appeal. Id. at 289 n.1. The court of
appeals in Pike addressed five different issues, three of which were unnecessary for it to
consider in order to determine whether a certain statute applied to the controversy at issue.
Id. We vacated the portions of the court of appeals majority and concurrence which
addressed the tangential issues, finding that the court of appeals “greatly expanded its
inquiry on appeal beyond the narrow issues raised with regard to the applicability” of the
statute. Id. Specifically, we noted that the court of appeals “consider[ed] matters unrelated
to its appellate task of reviewing the exercise of the trial court’s discretion.” Id. Similarly
here, we find that the court of appeals greatly expanded its scope beyond what was
necessary to address the particular controversies at issue. We therefore vacate those
47 portions of the majority and concurring opinions of the court of appeals that addressed the
constitutionality of MIFPA and ICWA, and “direct that those [portions of the] opinions
shall have neither dispositional nor precedential value.” Id. at 290.
* * *
In summary, Minnesota Rule of Juvenile Protection Procedure 34.02 provides the
district court discretion to grant an individual’s motion to permissively intervene in a
CHIPS proceeding when the intervention is in the best interests of the child. Here, the
district court did not abuse its discretion when it determined that appellants’ intervention
was not in the twins’ best interests. Furthermore, appellants’ third-party petition for
permanent custody is non-cognizable in juvenile court and is instead properly construed in
juvenile court as a petition for a transfer of legal and physical custody. But because
appellants are not parties to the juvenile court case, they are foreclosed from bringing a
petition to transfer the twins’ placement or custody. Thirdly, because they are not parties,
we do not address appellants’ equal protection arguments regarding ICWA and MIFPA.
And we further hold that it was inappropriate for the court of appeals to reach that issue.
Finally, on July 29, 2024, appellants filed a motion to stay the proceedings in district
court while their appeal was pending. On August 19, 2024, we granted the stay in part and
prohibited the district court from transferring this matter to tribal court until the stay is
lifted. In light of our decision today, we lift the stay.
CONCLUSION
For the foregoing reasons, we affirm the district court’s denial of appellants’ motion
for permissive intervention and its dismissal of appellants’ third-party custody petition in
48 appeal No. A24-1296. We also vacate the portions of the court of appeals majority and
concurrence in appeal No. A23-1762 addressing MIFPA’s constitutionality and declare
them to be of neither dispositional nor precedential value. We lift the stay and remand the
case to the district court for further proceedings consistent with this opinion.
Related
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