In the Matter of the Welfare of the Children of: S.S., L.B., D.D. and T.W., Parents.

In the Matter of the Welfare of the Children of: S.S., L.B., D.D. and T.W., Parents. A05-407, Court of Appeals Unpublished, September 13, 2005.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A05-407

 

In the Matter of the Welfare of

the Children of:

S.S., L.B., D.D. and T.W., Parents.

 

Filed September 13, 2005

Affirmed
Forsberg, Judge*

 

St. Louis County District Court

File No. J5-04-651145

 

Katalina Jimenez, Indian Legal Assistance Program, 107 West First Street, Duluth, MN 55802 (for mother S.S.)

 

Alan L. Mitchell, St. Louis County Attorney, Joanne Vavrosky, Assistant County Attorney, 320 West Second Street, Room 403, Duluth, MN 55802 (for respondent St. Louis County)

 

L.B., P.O. Box 127, Naytahwaush, MN  56566 (pro se respondent)

 

D.D., 1015 North Eighth Street, Superior, WI  54880 (pro se respondent)

 

T.W., 1802 Centennial Drive, Roseville, MN  55103 (pro se respondent)

 

James White, Red Lake Band of Chippewa Indians Family and Children's Services, P.O. Box 427, Red Lake, MN 56671 (ICWA advocate)

 

Susan Love, P.O. Box 1417, Superior, WI 54880 (guardian ad litem)

 

            Considered and decided by Kalitowski, Presiding Judge, Shumaker, Judge, and Forsberg, Judge.

U N P U B L I S H E D   O P I N I O N

FORSBERG, Judge

            Appellant mother challenges the adjudication of her children as being in need of protection or services (CHIPS) and their continued out-of-home placement.  Because the district court's findings are supported by the record and its other rulings are not an abuse of its discretion or otherwise erroneous, we affirm. 

D E C I S I O N

            Because there was no new-trial motion here, we review only substantive issues of law properly raised at trial, whether the evidence supports the findings of fact, and whether the findings support the conclusions of law and ultimate ruling.  Alpha Real Estate Co. v. Delta Dental Plan, 664 N.W.2d 303, 310 (Minn. 2003); Gruenhagen v. Larson, 310 Minn. 454, 458, 246 N.W.2d 565, 569 (1976).  CHIPS findings are not altered unless clearly erroneous or unsupported by substantial evidence.  In re Welfare of D.N., 523 N.W.2d 11, 13 (Minn. App. 1994), review denied (Minn. Nov. 29, 1994). 

I.

            Citing the finding that the "the children were in need of protection and services [when the CHIPS] petition was filed[,]" appellant argues that the CHIPS adjudication is improperly based on circumstances existing when the petition was filed, rather than when the district court made its ruling.  See In re Welfare of Clausen, 289 N.W.2d 153, 156 (Minn. 1980) (stating parental fitness is determined by considering events through hearing date).  But the district court noted appellant's "serious and chronic substance abuse problems," that her chemical dependency history "is such that she is likely to relapse again," and that "[i]t would be irresponsible not to require a longer period of sobriety with actual proof" of her continued sobriety "before returning all three children to her custody."  The district court then stated that "[t]he stress of supervision requirements of these three children alone could trigger a relapse" and that, until appellant had "a satisfactory period of shown sobriety[,]" the children would "remain in need of protection and supervision."  Thus, the CHIPS adjudication was based on a determination that, at the time of trial, the children "remain[ed] in need of protection and supervision." 

            We reject appellant's challenge to the sufficiency of the evidence to support the determination that, at the time of trial, the children were in need of protection or services under Minn. Stat. § 260C.007, subd. 6(3), (8) (2004), which address whether a child lacks "necessary food, clothing, shelter, education, or other required care" because the parent "is unable or unwilling to provide that care[,]" and whether the child lacks "proper parental care because of the emotional, mental, or physical disability, or state of immaturity of the child's parent[.]"  The record shows both appellant's failure to comply with her sobriety plan after her discharge from treatment and that she continued to have problems caring for her children.  The former shows a lack of commitment to showing continued sobriety, while the latter is highlighted not only by the children's special needs, but also by appellant's failures to provide basic care and to approve and participate in evaluations and critical aspects of her case.  The record has clear and convincing evidence that the children needed protection or services at the time of trial.

II.

            Before foster placement of an Indian child, the Indian Child Welfare Act (ICWA) requires "a determination, supported by clear and convincing evidence, including testimony of qualified expert witnesses that the continued custody of the child by the parent . . . is likely to result in serious emotional or physical damage to the child."  25 U.S.C. § 1912(e) (2000).  Appellant argues that the district court erred by (1) recognizing the social worker as an expert under the ICWA; (2) failing to adopt the recommendations of the tribal representative; and (3) relying on evidence that was not clear and convincing. 

            We conclude from a review of the record that the district court did not deem the social worker to be an expert for purposes of the ICWA, but instead relied on James White, the tribal representative of the Red Lake Band of Chippewa Indians, who submitted an affidavit stating that the tribe considers him an expert for ICWA purposes.  See In re Welfare of J.B., 698 N.W.2d 160, 166-67 (Minn. App. 2005) (holding tribe's recognition of expertise precludes questioning that designation).  Appellant did not challenge White's evidence to support the adjudication or placement of the child, either in the district court or on appeal, and the district court relied on White's position regarding placement of the children.  The district court's order is generally consistent with White's recommendations.  The district court set a hearing review date for a month after its order because results of psychological evaluations had not been received, and delayed the transfer of two of the children to appellant until she could demonstrate a satisfactory period of sobriety.  Although White recommended immediate return of one child, followed by the return of the second child, he stated that this should occur after satisfying any concerns from a psychiatric evaluation, the results of which were not yet available.  We conclude that the district court's order complied with the ICWA requirement because it is consistent with White's testimony.

            Moreover, the record shows appellant's failure to (1) demonstrate her sobriety; (2) provide adequate food, clothing, and supervision for the children; and (3) otherwise abide by her case plan.  In addition, the record indicates that (1) each child has special needs; (2) two of the children had physical altercations so severe that they had to be put in separate foster homes; (3) one child lit appellant's bedroom on fire and was found on the roof of a five-story building; (4) one child had to be deloused several times after spending time with appellant; and (5) one child had sexually abused his sibling.  We conclude that, on this record, leaving the children in appellant's custody would likely result in serious emotional or physical damage.

III.

            Appellant claims that the district court should not have overruled her objection to the guardian ad litem's closing statement or denied appellant's request to cross examine the guardian ad litem after the statement.  But because there was no new-trial motion, this allegation of trial error is not properly before us.  Sauter v. Wasemiller, 389 N.W.2d 200, 202 (Minn. 1986).  In addition, appellant's argument lacks merit because she has failed to show any prejudice from the district court's refusal to let her restart a cross examination after she assured the district court that she was finished.  Kroning v. State Farm Auto Ins. Co., 567 N.W.2d 42, 46 (Minn. 1997). 

IV.

            Appellant argues that because the county, the social worker, and the district court requested proof from her that she remained sober, the burden of proof was improperly shifted to her.  See Minn. R. Juv. Prot. P. 39.04 (petitioning party must prove allegations in petition by clear and convincing evidence).  We disagree.  The case plan to which appellant agreed requires her not only to remain sober, but to demonstrate her sobriety.  The district court was presented with conflicting evidence on appellant's chemical health:  (1) appellant testified that she remained sober, but failed to produce test results or verification of attendance at Narcotics Anonymous; and (2) the county submitted evidence of appellant's history of chemical-related problems, her relapses into chemical use after completing treatment, and her refusal to undergo urine analyses (UAs) after agreeing to do so.  On this record, the district court did not err in relying on the county's evidence rather than appellant's unsubstantiated assertions.  See Varner v. Varner, 400 N.W.2d 117, 121 (Minn. App. 1987) (stating that district court is not required to believe even uncontradicted testimony if there are reasonable grounds to doubt its credibility).

V.

            Foster placement of an Indian child requires the county to make active, culturally appropriate efforts to prevent placement of the child and to return the child to the family as soon as possible.  25 U.S.C. § 1912(d) (2000); Minnesota Tribal/State Agreement at 3, 5.  Appellant argues that the record does not show that such efforts occurred here.  The record shows, however, that appellant received services from the following:  (1) the Family First and Family Outreach Programs, which are operated by the Fond du Lac Band of Chippewa; (2) the Human Development Center; (3) a chemical dependency program for Indian clients, Mash-Ka-Wisen; (4) an Indian social worker, Doreen Holding Eagle, who had previously managed an Indian assistance program for families affected by chemical dependency and domestic violence; and (5) foster placement of two of the children in Indian foster homes.  Further, Ms. Holding Eagle met weekly with appellant at the Mash-Ka-Wisen treatment center to develop a placement plan and an aftercare plan to include monthly counseling, weekly after-care meetings, AA/NA meetings, and random urinalysis, and traveled to appellant's home if she missed appointments.  Ms. Holding Eagle succeeded in getting two of the children into one foster home, although they later had to be separated, and consulted with the Red Lake tribal worker and with social workers from the Fond du Lac Band.  Tribal representatives provided assistance to the county and sent a representative to the November 2004 and January 2005 hearings.  Copies of each order and the CHIPS petitions were delivered to the Red Lake Band of Chippewa Indians.  The record supports the finding that the county's efforts were active and culturally appropriate. 

            Affirmed.

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.