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(Cite as: 2004 WL 1728610 (Minn.App.))

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NOTICE: THIS OPINION IS DESIGNATED AS UNPUBLISHED AND MAY NOT BE CITED EXCEPT AS PROVIDED BY MINN. ST. SEC. 480A.08(3).


Court of Appeals of Minnesota.


In the Matter of the Child of E.M.D., Parent.


No. A04-157.


Aug. 3, 2004.

Cook County District Court, File No. J2-03-50058.


Mark C. Jennings, Duluth, MN, for appellant E.M.D.


William J. Hennessy, Grand Marais, MN, for respondent Cook County.


Jessica L. Ryan, BlueDog, Olson & Small, P.L.L.P., Bloomington, MN, for respondent Grand Portage Band of Chippewa.

Considered and decided by HUDSON, Presiding Judge; LANSING, Judge; and WILLIS, Judge.

UNPUBLISHED OPINION


LANSING, Judge.


*1 E.M.D. appeals from an order adjudicating her son a child in need of protection or services (CHIPS). E.M.D. argues that the CHIPS adjudication must be reversed because (1) the petition sought long-term foster care rather than a CHIPS adjudication, and relief may not be based on issues that are neither pleaded nor litigated; (2) the county failed to provide her with a written out-of-home-placement plan, in violation of Minn.Stat. § 260C.212, subd. 1(a) (2002); (3) the evidence does not support a CHIPS adjudication; (4) the county violated the requirements of the Indian Child Welfare Act (ICWA) by failing to make active efforts to provide her services and programs to prevent the breakup of the family; and (5) the court erred in concluding that the tribal social worker qualified as an expert for ICWA purposes. By notice of review, respondent Grand Portage Band of Chippewa challenges the denial of the petition for long-term foster care, claiming that the law requires permanency in this case because the total out-of-home-placement time exceeds the maximum permitted before the matter reaches permanency. We affirm the CHIPS adjudication and the denial of the petition for long-term foster care, but we reverse the portion of the district court's order placing C.L.D. in foster care for an indeterminate period of time pending a disposition hearing, and remand for a permanency determination consistent with Minn.Stat. § 260C.201, subd. 11(d) (2002).


FACTS


In the fall of 2000, E.M.D. sought help from Cook County Public Health and Human Services in connection with her son C.L.D.'s behavior problems and unwillingness to go to school. C.L.D. is a thirteen-year-old Native-American child and an enrolled member of the Grand Portage Band of Chippewa.


On January 19, 2001, C.L.D. was voluntarily placed out of the home after extensive intervention from the county and Grand Portage Band of Chippewa Human Services. On January 26, the county filed a petition alleging that C.L.D. was a child in need of protection or services because (1) he was habitually truant; (2) he was without the necessary food, clothing, shelter, or education required for his physical or mental health; and (3) he was without the care required by his special needs. Shortly after the petition was filed, C.L.D. was hospitalized at Miller Dwan Hospital, where he was diagnosed as having depression, an anxiety disorder, a learning disorder, and symptoms of post-traumatic stress associated with his father's death in 1999. In March 2001, the court issued an order declining to find C.L.D. in need of the statutory protection or services, but granting the county temporary physical custody and requiring that C.L.D. be placed in a Professional Association of Treatment Homes (PATH) foster home.


In June 2001 the county filed an amended CHIPS petition, alleging additional statutory bases for a CHIPS determination, including physical and sexual abuse by E.M.D. The band supported the county's petition. In November 2001 the court adjudicated C.L.D. in need of protection or services under the statute. The court found that C.L.D. (1) was habitually truant; (2) was without the psychological care his special needs required because E.M.D. was unable to provide that care; and (3) was a victim of physical and emotional abuse. The court ordered a case plan.


*2 In January 2002 the court issued a disposition order. The court reaffirmed its previous finding that C.L.D. was in need of protection or services and found that it would be in C.L.D.'s best interests to continue in out-of-home placement and in counseling. The court also required E.M.D. to continue in counseling, to complete a psychological and a chemical-dependency assessment, to attend parenting classes, and to submit to random urinalysis. In a subsequent order, the court adopted the recommendations of ARC Northland for C.L.D.'s academic and therapeutic needs.


In August 2002 the court returned C.L.D. to E.M.D.'s custody on the recommendation of the county and the band. The court ordered E.M.D. to continue to work on sobriety and parenting skills, to attend family therapy, and to submit to random urinalysis.


In March 2003, relying on the recommendation of E.M.D.'s psychologist, the county and the band recommended that the CHIPS proceedings be dismissed and the court's jurisdiction be terminated. The psychologist believed that E.M.D. would be more likely to comply with a case plan that was not enforced by court order. On March 19, the court adopted the recommendation of the county and the band and issued an order dismissing the CHIPS proceeding and terminating the court's jurisdiction.


Between March and June 2003, C.L.D. lived with E.M.D. without incident. On June 2, however, C.L.D. sought refuge at a neighbor's house after E.M.D. became intoxicated. On June 5, the county filed a petition seeking emergency protective care and custody of C.L.D., and on June 6 the court issued an ex parte order for protective care. The court found probable cause to believe that C.L.D.'s welfare required that he be removed from the home and placed in emergency protective care. The court also found that "active efforts ha[d] been made to treat [E.M.D.'s] alcoholism and to reunite the family." The court transferred custody of C.L.D. on June 8, and he was placed in a foster home.


On July 11, the county filed a petition for the termination of E.M.D.'s parental rights. The county dismissed the TPR petition in October, and filed a petition for long-term foster care instead. The petition requested that C.L.D. "remain in long-term foster care placement ... as a child in need of protection or services." The petition was based on the report of a child-protection worker, which indicated that E.M.D. had been unable to remain sober and that she had been uncooperative with service providers and had not followed through with her case plan. The band and the guardian supported both the petition for long-term foster care and the dismissal of the petition to terminate E.M.D.'s parental rights.


On December 26, 2003, the court issued an order denying the petition for long-term foster care and adjudicating C.L.D. in need of protection or services under the statute. The court concluded that although long-term foster care was not appropriate, E.M.D.'s continuing use of alcohol and the inability of the Cook County schools to meet C.L.D.'s educational needs supported a CHIPS adjudication. The court reaffirmed an interim order providing for the placement of C.L.D. in a foster home pending disposition and ordered that a case plan be prepared.


*3 In an amended order issued in January 2004, the court clarified that C.L.D. was in need of protection or services because (1) he lacked the special care required by his physical, mental, or emotional condition as a result of E.M.D.'s inability or unwillingness to provide that care within the meaning of Minn.Stat. § 260C.007, subd. 6(4) (2002); (2) he lacked proper parental care because of E.M.D.'s emotional, mental, or physical disabilities and her immaturity within the meaning of Minn.Stat. § 260C.007, subd. 6(8); (3) his environment, behavior, and condition was injurious to him within the meaning of Minn.Stat. § 260C.007, subd. 6(9); and (4) he was without the necessary education or other required care for his physical or mental health or morals within the meaning of Minn.Stat. § 260C.007, subd. 6(3). In the original order, however, the court expressly found that C.L.D.'s difficulties in Cook County schools were due, not to his mother's behavior, but to the schools' inability to meet his needs.


This appeal from the adjudication of CHIPS and the denial of the petition for long-term foster care follows.


DECISION


When reviewing a CHIPS determination, we consider whether the district court's findings are supported by clear-and-convincing evidence. In re Welfare of J.M.S., 268 N.W.2d 424, 428 (Minn.1978); Minn. R. Juv. P. 74.04, subd. 1 (2003) (requiring allegations in petition to be supported by clear-and-convincing evidence). We inquire closely into the sufficiency of the evidence to determine whether it is clear and convincing. In re Welfare of J.M., 574 N.W.2d 717, 724 (Minn.1998). Clear-and-convincing evidence is evidence that is unequivocal, uncontradicted, and intrinsically probable and credible. Deli v. Univ. of Minn., 511 N.W.2d 46, 52 (Minn.App.1994), review denied (Minn. Mar. 23, 1994). In determining whether the evidence is clear and convincing, we defer to the district court's ability to asses the credibility of witnesses. In re Welfare of L.A.F., 554 N.W.2d 393, 396 (Minn.1996).


I

E.M.D. first argues that the district court erred in adjudicating C.L.D. in need of protection or services because the petition sought long-term foster care rather than a CHIPS adjudication and the court was limited by the pleadings as to what relief it could grant. E.M.D. claims that the CHIPS issue was neither pleaded nor litigated, and that she was prejudiced by the lack of fair notice and an opportunity to defend. E.M.D.'s argument lacks merit.


Long-term foster care is one of the placement options a court may choose if it determines that a child is in need of protection or services or neglected and in foster care and it decides not to return the child home. Minn.Stat. § 260C.201, subds. 1, 11(d)(3) (2002). A CHIPS adjudication or an adjudication of neglect is thus necessary before long-term foster care may be ordered. Accordingly, a petition for long-term foster care must allege that a child is neglected or in need of protection or services and must set forth facts that would establish, if proven, neglect or a need for protection or services. See Minn.Stat. § 260C.141, subd. 1(b)(1) (2002).


*4 In this case, the petition requested that C.L.D. "remain in long-term foster care placement in the continuing jurisdiction of the Court as a child in need of protection or services ... with continuing legal custody of the child with [Cook County Public Health and Human Services]." (Emphasis added.) The petition thus properly alleged CHIPS as the basis for a disposition of permanency.


In addition, the petition alleged facts that, if proven, would establish that C.L.D. was in need of protection or services. Specifically, the petition alleged that the county had made active efforts to provide E.M.D. services to reunite the family, and that E .M.D. had not made substantial progress on her case plan and had not corrected the conditions that led to out-of-home-placement. The petition also indicated that it was based on the report of a child-protection worker, which established that E.M.D. had been unable to maintain sobriety and that she had been uncooperative with service providers and had not followed through with her case plan. The CHIPS allegation was thus properly pleaded, and E.M.D. was not prejudiced by lack of fair notice or an opportunity to defend.


Even if the county had not properly pleaded CHIPS, E.M.D. expressly consented to the inclusion of the CHIPS issue in the litigation and may not, therefore, claim either that she was prejudiced or that the court may not grant relief on an issue that was not pleaded. At the end of the second day of trial, the court asked the parties whether the court had "the ability to do things other than mak[e] the determination that the County [sought]." E.M .D.'s counsel responded that he had looked into it, and that his understanding was that the court "would have the right to make a CHIPS finding ... on [a] long term foster care petition[ ]." In addition, in the memorandum E.M.D. filed in support of her proposed findings of fact, E.M.D.'s counsel reiterated that the court could "make a finding that C.L.D. is a child in need of protection or services," and that "[s]uch a finding could be based on the fact that [E.M.D.] continues to struggle with alcohol." Counsel added that "[b]ased on the evidence before it, the Court can find C.L.D. is in need of protection or services." E.M.D. therefore not only voluntarily litigated the CHIPS issue but also advocated a CHIPS determination.


Accordingly, E.M.D. may not now prevail on a claim that she was prejudiced by lack of notice or an opportunity to defend, or that the court may not adjudicate C.L.D. a child in need of protection or services because the CHIPS issue was neither pleaded nor voluntarily litigated.


II


E.M.D. next argues that the county's failure to provide her with a written out-of-home-placement plan, as required by Minn.Stat. § 260C.212, subd. 1(a) (2002), warrants reversal of the CHIPS adjudication. We disagree.


Minn.Stat. § 206C.212, subd. 1(a) requires that "[a]n out-of-home placement plan shall be prepared within 30 days after any child is placed in a residential facility by court order or by the voluntary release of the child by the ... parents." A "residential facility" includes a family foster home. Id. The plan must describe how the out-of-home placement is designed to achieve a safe placement for the child in the least restrictive setting available and how the placement is consistent with the child's best interests and special needs. Id., subd. 1(c). The plan must also describe the reasons for the placement of the child in a residential facility, the conditions that required removal of the child from home, the changes the parent must make before the child may return home, the services offered and provided to prevent removal of the child from the home and to reunify the family, the specific actions to be taken by the parent to correct the problems that led to the placement, the social services to be provided to the parent, and the efforts to be made to achieve a stable home for the child. Id.


*5 Although a placement plan is required in every case, the absence of a placement plan does not warrant reversal of a CHIPS or neglect adjudication when case-planning efforts have been an ongoing concern of the county, the parent's lack of cooperation is responsible for the county's failure to construct a plan, and the evidence clearly shows that the parent would not be aided by a written placement plan. In re Welfare of R.M.M. III, 316 N.W.2d 538, 542 (Minn.1982) (upholding termination of parental rights notwithstanding county's failure to prepare placement plan). Similarly, the county's delay in preparing a placement plan is not unduly prejudicial when the delay is partly caused by the parent's lack of cooperation and prior court orders adequately inform the parent of what needs to be done before the child may return home. In re Welfare of J.J.L.B., 394 N.W.2d 858, 863 (Minn.App.1986) (upholding termination of parental rights despite two-year delay in providing parents with placement plan), review denied (Minn. Dec. 17, 1986). The failure to provide a timely written plan is reversible error, however, if the parent has not been informed or does not understand the conditions he or she must satisfy to achieve reunification. See, e.g., In re Welfare of Copus, 356 N.W.2d 363, 366-67 (Minn .App.1984).


The county's failure to provide E.M.D. with a timely placement plan does not warrant reversal in this case because E.M.D. was adequately informed by prior court orders of the steps she needed to take to achieve reunification and there is clear-and-convincing evidence that she would not have been aided by a new placement plan. The purpose of an out-of-home placement plan is to give parents written guidelines for correcting the conditions that led to the determination of dependency. J.J.L.B., 394 N.W.2d at 863. E.M.D. was given these guidelines in the court's initial disposition order and in subsequent review orders issued on March 19, June 19, and August 21, 2002. These orders required E.M.D. to continue in counseling, to cooperate with a psychological assessment and a chemical-dependency evaluation, to attend parenting classes, to attend family therapy twice a month, to maintain sobriety, to attend a specific aftercare sobriety program, and to submit to random urinalysis. E.M.D. understood the guidelines well enough to correct the conditions that led to out-of-home placement and to regain custody of C.L.D. on March 19, 2003. In addition to the orders setting forth the required guidelines, the court's December 26, 2003, order adjudicating C.L.D. a child in need of protection or services informed E.M.D. of the guidelines she had not satisfied and would have to comply with to regain custody of C.L.D. Previous court orders thus provided E.M.D. with all the benefits she would have received from a new placement plan.


Additionally, E.M.D.'s failure to cooperate with providers, her resistance to the rehabilitative efforts the county and the band offered, her denial of her shortcomings as a parent, and her efforts to sabotage C.L.D.'s efforts at rehabilitation suggest that a new case plan would have been of little or no use. The county social worker indicated that given the chemical-dependency services previously offered to E.M.D. and her record of being uncooperative with service providers, the county could not "identify any reason to continue to pursue avenues of treatment in the context of Child Protection." Thus, the county's failure to provide E.M.D. with a new placement plan after June 8 does not provide a basis for reversal.


III


*6 E.M.D. next argues that the district court erred by relying on the county's inability to meet C.L.D.'s educational needs as a basis for adjudicating C.L.D. a child in need of protection or services. Specifically, E.M.D. argues that the county's failure to meet C.L.D .'s educational needs, through no fault of her own, does not provide a basis for a CHIPS determination in a case involving removal of the child from the home. We agree.


A child is in need of protection or services if the child "is without necessary food, clothing, shelter, education, or other required care for the child's physical or mental health or morals because the child's parent, guardian, or custodian is unable or unwilling to provide that care." Minn.Stat. § 260C.007, subd. 6(3) (2002) (emphasis added). To establish educational neglect in cases involving removal of a child from the home, the county must show a "severe deprivation of education." In re Welfare of T.K., 475 N.W.2d 88, 93 (Minn.App.1991) (holding that determination that children were CHIPS because of parents' refusal to submit children to standardized norm-referenced achievement examinations in connection with home schooling was premature). But a showing of "severe deprivation" is not necessary in cases not involving out-of-home placement. In re Welfare of B.A.B., 572 N.W.2d 776, 779 (Minn.App.1998) (holding that evidence of first-grader's twenty school absences in seven months supported CHIPS determination). Whether or not a showing of "severe deprivation" is required, however, a petitioner seeking to establish educational neglect under Minn.Stat. § 260C.007, subd. 6(3), must show that the neglect was attributable to the parent's conduct. See B.A.B., 572 N.W.2d at 779 (distinguishing truancy and educational neglect on the ground that educational neglect "focuses on the behavior of the parent").


The district court concluded that C.L.D. was a child in need of protection or services based on E.M.D.'s "inability to meet [C.L.D.'s] educational needs in Cook County." The court's determination was premised on a finding that throughout the 2002-03 school year C.L.D. did poorly in school because the school was unable to meet his special needs. The court expressly found that C.L.D.'s poor school performance was not attributable to E.M.D., and the record supports the court's finding.


Given the court's finding that C.L.D.'s educational neglect was not attributable to E.M.D.'s conduct, the district court erred in adjudicating C.L.D. a CHIPS under Minn.Stat. § 260C.007, subd. 6(3).


IV


Next, E.M.D. argues that evidence of one drinking episode is insufficient to support the district court's CHIPS adjudication. But the record clearly and convincingly shows that E.M.D. consumed alcohol on more than one occasion. Additionally, the record contains clear-and-convincing evidence that C.L.D. was in need of protection or services independently of E.M.D.'s drinking.


The district court found that E.M.D.'s "continuing use of alcohol adversely and negatively affect[ed] her ability to parent C.L.D." The court also found that "[w]hile the extent of [E.M.D.'s] use [of alcohol] is unclear, there is evidence that [E.M.D.] consumed alcohol on more than one occasion, at least from and after June 2nd, 2003."


*7 The record supports the court's finding that E.M.D. consumed alcohol on more than one occasion. E.M.D.'s sister testified that she and E.M.D. bought and drank beer on October 27, 2003, and that they play cards and drink beer when she visits E.M.D. An employee of the Grand Portage Trading Post also testified that E.M.D. bought two twelve-packs of beer on October 27 and appeared to be intoxicated at the time. Her testimony that E.M.D. bought beer was corroborated by the Trading Post's manager. E.M.D.'s claim that the court's adjudication of dependency is based on one drinking episode is thus without merit.


In addition, other evidence in the record clearly and convincingly supports the court's determination that C.L.D. needs protection or services because of lack of special and proper parental care and because his environment is injurious to him. A child is in need of protection or services if the child

(4) is without the special care made necessary by a physical, mental, or emotional condition because the child's parent, guardian, or custodian is unable or unwilling to provide that care[;]


* * *

(8) is without proper parental care because of the emotional, mental, or physical disability or state of immaturity of the child's parent, guardian, or other custodian; [ or ]

(9) is one whose behavior, condition, or environment is such as to be injurious or dangerous to the child or others.

Minn.Stat. § 260C.007, subd. 6. The existence of any one of the circumstances enumerated in subdivision 6 is sufficient to support a determination that a child is in need of protection or services.


Special Care


The evidence in this case clearly and convincingly shows that E.M .D. is unable or unwilling to provide C.L.D. with the special care his needs require, within the meaning of subdivision 6(4). E.M.D. refused to acknowledge C.L.D.'s special needs, refused to participate in meetings to address those needs, interfered with C.L.D.'s therapy and his ability to build a trusting relationship with service providers. The county social worker's July 2003 report indicates that E.M.D. "demonstrated by her own behavior in meeting after meeting that she simply cannot consistently work with social service people, therapist[s], or school personnel." C.L.D.'s psychologist testified that she was unable to get E.M.D.'s trust, support, or cooperation; that E.M.D. walked out of an Individual Education Plan (IEP) meeting, claiming that it was not necessary to discuss C.L.D.'s deficits at that time; that E.M.D. indicated that C .L.D. would be fine "if therapists would stop interfering with his life"; and that E.M.D. was rude and abusive.


The record thus supports by clear-and-convincing evidence the district court's determination that C.L.D. lacks the special care his condition requires because E.M.D. is unwilling or unable to provide that care.


Proper Parental Care


The evidence also clearly and convincingly shows that C.L.D. is without proper parental care because of E.M.D.'s emotional, mental, or physical disability or state of immaturity, within the meaning of subdivision 6(8). E.M.D. has been diagnosed with paranoid-personality disorder and has a long history of alcohol and chemical abuse that makes her unable to care for C.L.D. properly. E .M.D. has shown an unwillingness to cooperate with treatment professionals and a refusal to participate in recommended therapy. She told the guardian ad litem in October 2003 that she will not participate in therapy or chemical-dependency programs. She denied having any knowledge of the court's order requiring her to participate in therapy, and stated that she receives copies of the court's orders but does not read them "to protect [herself] from whatever slander there is." E.M.D. refuses to accept responsibility for her condition and blames service providers, the court, and C.L.D. for the court's involvement.


*8 E.M.D. has also been unable to maintain sobriety and does not appear to understand the effect of her drinking on C.L.D. The county social worker's July 2003 report indicates that the county has "stacks of psychological evaluations" that show that E.M.D.'s drinking has negatively affected C.L.D. C.L.D. told his guardian ad litem in October 2003 that E.M.D. had been drinking for the past year, and that although she did not drink all the time, she drank a lot when she did. He also told the guardian ad litem that E.M.D. drove while intoxicated and liked to drive fast and chase other cars off the road. E.M.D.'s lack of cooperation with treatment providers and her current attitude suggest that she is unlikely to be able address her alcohol dependence.


The guardian ad litem's report also indicates that E.M.D. has been unwilling to attend all but one supervised visit with C.L.D. and has refused to contact the county to arrange transportation for visits with C.L.D. claiming that she would be "co-horting with the enemy" if she accepted transportation. The evidence thus clearly and convincingly supports the district court's determination that C.L.D. lacks proper parental care.


Injurious Environment


Finally, the evidence supports a finding that C.L.D.'s environment is injurious to him. In a taped interview conducted in October 2001, C.L.D. reported that his mother threatened him with death or severe bodily harm while she was intoxicated. On one occasion, E.M.D. told C.L.D. that she would kill him and hang his body from a tree to scare the other children in the neighborhood. E .M.D. then took out a machete and swung it at C.L.D. as he ran out the door to hide from her. On another occasion, E.M.D. put a loaded gun to her head and threatened to hurt herself in front of C.L.D. When she pulled the trigger, a bullet rolled out of the gun. Law-enforcement personnel executed a search warrant at E.M.D.'s house and found a machete and a B.B. gun matching the description C.L.D. had given them. Because the record reflects that E.M.D. continues to drink, the danger has not abated. The evidence thus clearly and convincingly shows that, when in his mother's custody, C .L.D. is in an environment that is injurious to him.


Based on the foregoing, we conclude that the district court properly adjudicated C.L.D. a child in need of protection or services within the meaning of subds. 6(4), (8), and (9).


V


E.M.D. next argues that the CHIPS adjudication must be reversed because the county and the band failed to make active efforts to provide E.M.D. remedial services and rehabilitative programs designed to prevent the breakup of an Indian family. We disagree.


A party seeking to place an Indian child in foster care "shall satisfy the court that active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and that these efforts have proved unsuccessful." 25 U.S.C. § 1912(d) (2000). The adequacy of these efforts must be established beyond a reasonable doubt. In re Welfare of M.S.S., 465 N.W.2d 412, 418 (Minn.App.1991).


*9 The county and the band made numerous unsuccessful active efforts to prevent the breakup of E.M.D.'s family from January 2001, when the child was voluntarily placed out of the home, until March 19, 2003, when the court dismissed the CHIPS proceeding and terminated jurisdiction. The county and the band worked together to develop two case plans and to provide E.M.D. numerous and varied services, including chemical-dependency treatment and aftercare; access to chemical-dependency counselors; home visits by treatment professionals and service providers; urinalysis testing, transportation, and payment; psychological evaluations; family and individual therapy; transportation for visitation, therapy, IEP meetings, and medical and dental appointments; financial assistance to repair E.M.D.'s vehicle; and assistance with supervised visitation, including related expenses such as food and lodging.


The county and the band also made active efforts to prevent the breakup of the family between June 2003, when C.L.D. was removed from the home because of E.M.D.'s drinking, and the trial. The county and the band met with extended family members in an effort to place C.L.D. with a family member and allow him to remain in Grand Portage, and conducted a home study of a potential candidate.


The district court concluded that active efforts were not made after March 19, 2003, but adjudicated C.L.D. in need of protection or services nonetheless. E.M.D. argues that the failure to provide rehabilitative services after March 19 compels the conclusion that active efforts were not made and requires reversal of the CHIPS adjudication. But the court must consider the efforts made throughout the course of the proceedings. Otherwise, any interruption in the provision of services, however brief or justified, would compel a determination that active efforts were not made. In this case, the failure to provide services between March and June 2003 is insignificant in light of the efforts the county and the band made throughout their two-year involvement with C.L.D.


Furthermore, while federal law requires legitimate efforts to prevent the breakup of an Indian family, it does not impose upon social-service agencies a duty to persist in efforts that can only be destined for failure. See, e.g., People in Interest of P.B., 371 N.W.2d 366, 372 (S.D.1985). On March 18, 2003, E.M.D.'s psychologist indicated that she had been unable to generate a treatment plan for the family because E.M.D. and C.L.D. "ha[d] been adamant, since September 2002, that they have no mental health needs ." The psychologist also indicated that E.M.D. maintained that she and C.L.D. would work on healing their relationship "in their own way and privately." She noted that "a lack of trust by both [C.L.D .] and [E.M.D.] ha[d] made it impossible for [her] to conduct any therapy to date." And she was of the opinion that "mandating mental health services for [C.L.D.] and [E.M.D.] will not be efficacious, and is in fact harmful." Finally, the psychologist indicated that she had offered to facilitate the services that ARC Northland had suggested for C.L.D. but E.M.D. had refused, stating that she and C.L.D. did not want more providers in their life. Given the psychologist's report, it is clear that additional efforts between March and June 2003 to prevent the breakup of E.M.D.'s family would have been futile.


*10 E.M.D. also argues that the efforts made were not "unsuccessful" within the meaning of the ICWA because E.M.D. was able to comply with her case plan and regain custody of C.L.D. in August 2002, and the court dismissed the CHIPS proceeding in March 2003. E.M.D.'s inability to maintain sobriety on June 2 and thereafter and her unwillingness to participate in therapy and cooperate with providers establish that, although the efforts to prevent the breakup of E.M.D.'s family succeeded for a time, they were ultimately unsuccessful.


The record thus establishes beyond a reasonable doubt that the county and the band made active efforts to provide remedial services designed to prevent the breakup of the family and that those efforts failed.


VI


Next, E.M.D. argues that the district court erred in concluding that the tribal social worker was a qualified expert witness within the meaning of the ICWA. We conclude that this argument lacks merit.


The ICWA requires that the removal of an Indian child from the home be supported by the testimony of qualified expert witnesses. 25 U.S.C. § 1912(e). The ICWA does not define the term "qualified expert witness." The Guidelines for State Courts promulgated by the Department of Interior, Bureau of Indian Affairs, define a "qualified expert witness" as

(i) A member of the Indian child's tribe who is recognized by the tribal community as knowledgeable in tribal customs as they pertain to family organization and childrearing practices.

(ii) A lay expert witness having substantial experience in the delivery of child and family services to Indians, and extensive knowledge of prevailing social and cultural standards and childrearing practices within the Indian child's tribe.

(iii) A professional person having substantial education and experience in the area of his or her specialty.

In re Welfare of B.W., 454 N.W.2d 437, 442 (Minn.App.1990) (quoting Guidelines for State Courts, 44 Fed.Reg. 67,593 (Nov. 26, 1979)). The Department of Human Services Manual requires that a professional person also have "substantial knowledge of prevailing social and cultural standards and child-rearing practices within the Indian community." Id. (quoting DHS Manual, XIII-3586 (Jan. 30, 1987)). And the House Report prepared in conjunction with the ICWA requires that a qualified expert witness have "expertise beyond the normal social worker qualifications." In re Welfare of Kreft, 384 N.W.2d 843, 846-47 (Mich.Ct.App.1986) (quoting H.R.Rep. No. 95-1386 (1978), reprinted in U.S.C.A.A.N. 7530, 7545). While not binding, the guidelines "are helpful and should be considered when deciding whether a witness is a qualified expert under the ICWA." In re Welfare of D.S.P., 480 N.W.2d 234, 240 (Wis.1992).


The tribal social worker, who testified as an expert witness, is a professional person with substantial education and experience in the area of her specialty and has substantial knowledge of prevailing social and cultural standards and child-rearing practices within the Indian community. As such, she qualifies as an expert witness under 25 U.S.C. § 1912(e). See T.J.J., 366 N.W.2d 651, 655 (Minn.App.1985) (concluding that psychologists who had coursework in Indian culture and experience working with Indian youth were qualified expert witnesses for ICWA purposes). The tribal social worker has over sixteen years' experience delivering family and child services to Indian communities. She is a member of the Constance Lake First Nation tribe, an Ojibwe/Cree tribe, and is a parent herself. She knows the traditions of the community in which she was raised and is familiar with the values, customs, traditions, and childrearing practices of the Ojibwe community, even though she was not raised in Grand Portage. Indeed, the Grand Portage Band of Chippewa recognized the social worker as "the Designated Tribal Representative and/or Qualified Expert in all ICWA/MIFPA proceedings." Given her experience and background and her designation as the band's tribal representative or qualified expert, the district court did not abuse its discretion in determining that she was a qualified expert witness for purposes of the ICWA. See T.J.J., 366 N.W.2d at 655 (stating that district court has broad discretion in determining whether a witness qualifies as an expert under the ICWA).


VII


*11 By notice of review, Grand Portage Band of Chippewa challenges the denial of the petition for long-term foster care, claiming that given the length of time C.L.D. has been out of the home, permanent placement is required unless the court orders that the child be returned to the parent's care. More specifically, the band argues that because C.L.D. is thirteen years old and has been in foster care for more than twelve months, the court lacked the discretion to order non-permanent out-of-home placement. We agree.


Except in circumstances not present in this case, the court must conduct a hearing to determine the permanent status of a child not later than twelve months after the child is placed out of the home. Minn.Stat. § 260C.201, subd. 11(a) (2002). If the child has been placed out of the home within the previous five years under one or more previous petitions, the lengths of all prior time periods when the child was placed out of the home within those five years are taken into account in determining how long the child has been out of the home. Id., subd. 11(a)(2). If a child has been placed out of the home for twelve months or more, the court, if it is in the best interests of the child or for compelling reasons, may extend the time the child may continue out of the home under the current petition up to an additional six months before making a permanency determination. Id.


At the conclusion of the permanent-placement hearing, "the court shall order the child returned to the care of the parent or guardian from whom the child was removed or order a permanent placement in the child's best interests." Id., subd. 11(c). If the court does not return the child to the home, the court must order one of the following dispositions: permanent legal and physical custody to a relative, termination of parental rights, long-term foster care, foster care for a specified period of time not exceeding one year, or guardianship and legal custody to the commissioner of human services. Id., subd. 11(d).


In this case, C.L.D. was placed in foster care in March 2001, pursuant to a petition for review of voluntary placement. C.L.D. remained in foster care until August 2002, for a total of seventeen consecutive months. He was then returned to E.M.D. under protective supervision for seven months, until March 2003. C.L.D. returned to foster care in June 2003 pursuant to the county's petition for emergency protective care. C.L.D. was thus placed out of the home longer than twelve months.


Because of the length of C.L.D.'s out-of-home placement, the court's placement options were limited to either returning C.L.D. home or ordering one of the permanent-placement options provided in subdivision 11(d). These options did not include reinstating an interim order placing the child in a foster home for an indeterminate period of time, pending a disposition hearing. We therefore conclude that the court erred by not making a permanency determination.


*12 We must then determine whether the court erred by concluding that long-term foster care was not appropriate. A child who is not returned home may be placed in long-term foster care only if (1) the court finds compelling reasons that neither an award of permanent legal and physical custody to a relative nor termination of parental rights is in the child's best interests, and (2) the child is twelve years or older and reasonable efforts have been made by the responsible agency to locate an adoptive family for the child. Id ., subd. 11(d)(3).


The district court concluded that the county "failed to establish grounds for long-term foster care" but made no findings in support of its conclusion. The record shows, however, that an award of custody to a relative was not possible and that termination of parental rights was not in C.L.D.'s best interests. The county looked into the possibility of placing C.L.D. with relatives and conducted a home study to determine if their home could be licensed. Apparently, the county concluded that the home was not suitable. With respect to the termination of parental rights, the county, the band, and service providers agreed that termination of parental rights was not in C.L.D.'s best interests and that the best option for the child was long-term foster care.


The record, however, contains no evidence that efforts were made to locate an adoptive family (the second requirement for long-term foster care), and counsel indicated at oral argument that those efforts had not been made. Absent evidence that efforts to locate an adoptive family were made, long-term foster care may not be ordered.


Thus, although the district court erred by failing to make a permanency determination, it did not err in denying the petition for long-term foster care. We therefore reverse the portion of the district court's order placing C.L.D. in foster care for an indeterminate period of time pending a disposition hearing, and remand for a permanency determination consistent with Minn.Stat. § 260C.201, subd. 11(d).


Affirmed in part, reversed in part, and remanded.

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