In the Matter of the Welfare of the children of: B.W. and L.W., Legal Custodians.

In the Matter of the Welfare of the children of: B.W. and L.W., Legal Custodians. A07-612, Court of Appeals Unpublished, August 28, 2007.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2006).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A07-612

 

In the Matter of the Welfare of the children of:
B.W. and L.W., Legal Custodians.

 

Filed August 28, 2007

Affirmed

Stoneburner, Judge

 

St. Louis County District Court

File No. 69DUJV06798

 

Mark C. Jennings, Assistant Public Defender, 509 Board of Trade Building, 301 West First Street, Duluth, MN 55802 (for appellants Williams)

 

Joseph Plumer, Attorney at Law, Box 418, White Earth, MN 56591 (for White Earth Tribe)

 

Arthur Albertson, Attorney at Law, Suite 100, 101 W. 2nd Street, Duluth, MN 55802 (for R.C. and E.C.)

 

Joanne Vavrosky, Assistant St. Louis County Attorney, 403 Government Services Center, 320 West Second Street, Duluth, MN 55802 (for Saint Louis County)

 

Mark D. Fiddler, Fiddler Law Office, Suite 200, 510 Marquette Avenue South, Minneapolis, MN 55402-1121 (for Guardian ad Litem)

 

Megan Prebelich, Attorney at Law, Indian Legal Assistance, 107 West First Street, Duluth, MN 55802 (for L.M., biological mother)

 

            Considered and decided by Shumaker, Presiding Judge; Stoneburner, Judge; and Wright, Judge.

U N P U B L I S H E D  O P I N I O N

 

STONEBURNER, Judge

 

            St. Louis County petitioned to terminate appellants' legal and physical custody of four children, who are enrolled members of the White Earth Tribe, after the children were found to be in need of protection or services of the court due to appellants' acts.  Six days before trial was to begin, the tribe moved to transfer the proceedings to tribal court.  The district court expedited a hearing on the motion and granted the transfer, concluding that the tribal court is the proper forum to hear this matter.  Appellants challenge the transfer order, arguing that the district court erred in granting the motion because good cause existed to deny the transfer.  Because a district court is not required to deny transfer to a tribal court even when good cause to deny a transfer may exist, and because the district court in this case did not abuse its discretion by granting the transfer, we affirm.

FACTS

 

            In February 2005, four children, who are enrolled members of the White Earth Tribe (the tribe), were alleged by St. Louis County (the county) to be children in need of protection or services of the court (CHIPS) because of alleged abuse by their legal and physical custodians, appellants Bonita and Lewis Williams.  The tribe was notified and has been actively involved in all proceedings involving these children.

            In May 2005, the children were placed in foster care with relatives approved by the tribe.  The children were adjudicated CHIPS in December 2005.  In July 2006, the county petitioned for transfer of legal and physical custody of the children.  Appellants opposed the petition. 

            The children's biological mother is L.M.  Their biological father, D.C., is deceased.  L.M. initially opposed removal of the children from appellants' custody.  L.M., according to the tribe, had also initially opposed transfer of jurisdiction of the case to tribal court, which constituted an absolute bar to transfer. 

            Appellants also had an adopted son, J.W., who was the subject of a separate CHIPS petition due to alleged abuse by appellants.  The CHIPS hearings for the children and J.W. were consolidated.  The county petitioned for termination of appellants' parental rights (TPR) to J.W.  Appellants moved to consolidate the TPR trial involving J.W. and the custody trial involving the children.  The district court denied the motion and ordered separate trials.

            The TPR trial began in January 2007 and concluded on February 8, 2007, resulting in termination of appellants' parental rights to J.W.  Apparently due to evidence disclosed in this trial, L.M. withdrew her support from appellants and, on February 14, 2007, the tribe was notified that L.M. no longer objected to transfer of the custody proceedings to tribal court.  The next day, February 15, 2007, the tribe filed and served by facsimile transmission a motion to transfer the custody matter to the White Earth Tribal Court.  Because the custody trial was scheduled to begin on February 20, 2007, the day after a legal holiday, the district court scheduled a hearing on the motion for the afternoon of February 16, 2007.  Prior to the hearing, L.M.'s attorney notified the court that as of February 14, 2007, L.M. no longer objected to the transfer.  The court was also advised that the attorney for two of the children did not object to the transfer.  At the hearing, the county and the guardian ad litem for the children supported the motion to transfer.  Only appellants objected to the transfer.  The district court granted the transfer to tribal court, and the tribal court issued an order accepting the case.  This appeal followed.

D E C I S I O N

 

            The Indian Child Welfare Act, 25 U.S.C. §§ 1901-1963 (2000) (ICWA), and the Minnesota Indian Family Preservation Act, Minn. Stat. §§ 260.751-.835 (2006), recognize concurrent but presumptively tribal jurisdiction over child-protection proceedings involving Indian children.  25 U.S.C. § 1911(b); Minn. Stat. § 260.771, subd. 3.  The child's tribe can intervene "at any point" in a state court proceeding.  25 U.S.C. § 1911(c); Minn. Stat. § 260.761, subd. 6.

In any State court proceeding for the foster care placement of . . . an Indian child not domiciled or residing within the reservation of the Indian child's tribe, the court, in the absence of good cause to the contrary, shall transfer such proceeding to the jurisdiction of the tribe, absent objection by either parent, upon petition of either parent or the Indian custodian or the Indian child's tribe . . ..

 

25 U.S.C. § 1911(b).  The court in absence of good cause to the contrary, shall transfer the proceeding to the jurisdiction of the tribe absent objection by either parent, upon the petition of either parent or the Indian custodian or the Indian child's tribe.  Minn. Stat. § 260.771, subd. 3.  A parent's objection to transfer to tribal court is an absolute block to transfer.  Id.

            Whether "good cause" to deny transfer of jurisdiction to a tribal court exists presents a mixed question of law and fact.  In re Welfare of Child of T.T.B. & G.W., 724 N.W.2d 300, 307 (Minn. 2006).  "We review mixed questions of law and fact to determine whether the district court made factual findings that are unsupported by the record, erroneously applied the law, or abused its discretion when it reached its ultimate conclusion."  In re Welfare of the Children of R.M.B. and R.E.R., ___N.W. 2d ___, (Minn. App. 2007), 2007 WL 2044736, at *3 (Minn. App. July 17, 2007).

            Appellants argue that because good cause to deny the motion to transfer existed, the district court erred as a matter of law in granting the transfer.  Appellants' argument focuses exclusively on demonstrating that good cause to deny the transfer exists in this case.  But appellants' premise is flawed.  As we very recently stated in In re Welfare of the Children of R.M.B. and R.E.R., "ICWA does not mandate, and the Bureau of Indian Affairs (BIA) Guidelines do not suggest, denial of a petition to transfer jurisdiction even when good cause for denial exists."  Id.at *5.

            Because the law does not mandate denial of a petition to transfer even when good cause for denial exists, the district court did not misapply the law to the facts of this case.  The district court did not make a finding that good cause to deny the transfer does not exist.  The district court reviewed the history of the case and determined that considering ICWA, the Minnesota Indian Family Preservation Act, and the best interests of the children, the tribal court is the appropriate forum for this case.  Because appellants do not challenge any of the district court's findings of fact as clearly erroneous, we review this case to determine whether the district court abused its discretion by granting the transfer.  Appellants have cast all of their arguments in terms of establishing that good cause exists to deny the motion to transfer based on procedural irregularities, prejudice to appellants, and the children's best interests.  We will examine their arguments in terms of the district court's exercise of discretion.

I.          Procedural irregularities

            Appellants argue that the tribe did not comply with Minn. R. Juv. Prot. R. 15.02, subd. 3, which requires written motions to be served at least five days before hearing, unless the court for good cause shown permits a motion to be made and served less than five days before it is to be heard.  Appellants also complain that the motion was not served with a notice of motion advising when the motion was scheduled to be heard as required by Minn. R. Juv. Prot. R. 15.02, subd. 1; the tribe did not file an affidavit of service of the motion on appellants' attorney on or before the date of the hearing; and the district court did not make appropriate findings to support shortening the time limit for hearing.[1] 

            Although a notice of motion was not provided by the tribe, a cover letter with the motion asks that it be heard on the morning of February 21, 2007, six days after it was served.  The district court stated in the order granting the motion that it expedited the hearing "[i]n view of the short timeframe prior to trial and the Presidents' Day holiday weekend."  Appellants did not object to service, the form of the motion, or the timing of the hearing in the district court.  Generally, this court will not consider matters not argued and considered in the district court.  Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988). 

            Because appellants did not raise these procedural arguments in the district court, we consider the arguments waived and decline to address them on appeal.

II.        Prejudice to appellants

            Appellants argue that because, in district court, they had a court-appointed attorney who was fully prepared to proceed to trial in state court but who is unable to assist them in tribal court, they are prejudiced by the transfer.  They also assert that they are prejudiced by the distance of the tribal court.  At the time of the hearing on the motion, the geographic location of tribal proceedings had not been identified, so appellants' argument regarding distance is speculative.  We have stated that it is essential to the purpose of ICWA to allow the appropriate tribal authorities to determine Indian child-custody matters according to tribal law, customs, and mores that are best known to them.  Matter of Welfare of B.W., 454 N.W.2d 437, 446 (Minn. App. 1990).  Although the district court did not explicitly address appellants' argument of prejudice, we cannot conclude that the district court abused its discretion by implicitly finding that the tribe's interest in determining the custody issue for these children outweighs any prejudice to appellants caused by the transfer.

III.       Best interests of the children

            Appellants argue that because permanency for the children would be delayed by the transfer, good cause exists to deny the transfer, and the district court abused its discretion in granting the transfer.  The tribe argued to the district court that the primary reason for the transfer is that the tribal court has a permanency option called "customary adoption" that is not available in state court.  The guardian ad litem supported the concept of customary adoption for these children and argued that because the tribe had indicated to the district court that it was prepared to act quickly in this matter and because tribal appellate procedures are more streamlined than state appellate procedures, permanency might be more quickly achieved in tribal court than in state court. 

            The district court noted that this case "has been pending far too long" but nonetheless found that transfer is in the best interests of the children.  Despite the importance of permanency timelines in state-court proceedings, given the clear federal and state mandate that tribes are in the best position to make decisions for Indian children and the availability in tribal court of a permanency option not available in state court, which the county and GAL agreed would be appropriate in this case, we cannot conclude that the district court abused its discretion in concluding that transfer to tribal court best serves the interests of the children.

IV.       Advanced stage of the proceeding

            Appellants make much of the fact that the tribe's motion was brought at an advanced stage of the proceedings.  Because neither ICWA nor Minnesota law defines what constitutes "good cause" to deny a motion to transfer jurisdiction to a tribal court, Minnesota courts have looked to guidelines for child-custody proceedings, published by the Bureau of Indian Affairs (BIA), for guidance on this issue.  See T.T.B., 724 N.W.2d at 305 (examining BIA Guidelines, 44 Fed. Reg. 67,584-67,595 (Nov. 26, 1979), to interpret meaning of "good cause"); In re Welfare of S.N.R., 617 N.W.2d 77, 81 (Minn. App. 2000) (citing several Minnesota appellate cases in which BIA Guidelines are used to interpret or apply ICWA), review denied (Minn. Nov. 15, 2000).  The BIA Guidelines state that "[g]ood cause not to transfer the proceeding may exist if . . . [t]he proceeding was at an advanced stage when the petition to transfer was received and the petitioner did not file the petition promptly after receiving notice of the hearing."  BIA Guidelines, 44 Fed. Reg. at 67,591 (emphasis added).

            In this case, the motion to transfer was made only days before trial was scheduled to begin and long after the tribe received notice of the proceedings.  The district court specifically noted the tribe's participation in both the CHIPS proceeding and the transfer-of-custody proceeding, and the fact that L.M.'s opposition prevented transfer of the matter to tribal court until shortly before the motion was made.  Notwithstanding the timing of the tribe's motion, the district court concluded that the White Earth Tribal Court is the proper forum for this case.  Under the circumstances of this case, we conclude that the timing of the motion did not preclude an exercise of the district court's discretion to grant the motion to transfer.

            Affirmed.

[1] Appellants also argue that the manner in which the motion was processed violated the Minnesota Rules of General Practice, but those rules specifically provide that a judge may modify their application.  Minn. R. Gen. Prac. 1.02.