In the Matter of the Welfare of:  A. M. F.-G.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2002).

STATE OF MINNESOTA

IN COURT OF APPEALS

In the Matter of the Welfare of:  A. M. F.-G.

Affirmed in part and Reversed in part

Ramsey County District Court

File No. J6-03-551662

Mary Jo B. Hunter, Hamline University School of Law, Child Advocacy Clinic, 1536 Hewitt Avenue, St. Paul, MN 55104-1284 (for appellant A.M.F.-G.)

Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and

Susan Gaertner, Ramsey County Attorney, Eleni P. Skevas, Assistant County Attorney, 50 West Kellogg Blvd., Suite 315, St. Paul, MN 55102 (for respondent)

            Considered and decided by Toussaint, Chief Judge; Kalitowski, Judge; and Wright, Judge.

U N P U B L I S H E D   O P I N I O N

KALITOWSKI, Judge

            Appellant A.M.F.-G. challenges the district court's ruling that the Indian Child Welfare Act (ICWA) does not apply in a contempt-of-court proceeding, and that the county's failure to notify appellant's tribe that an out-of-home placement was being contemplated did not violate the ICWA.  Because the district court correctly ruled that the ICWA does not apply in delinquency proceedings, we affirm in part.  But, because the district court erred in adjudicating appellant delinquent, we reverse in part. 

D E C I S I O N

I.

The applicability of a statute to undisputed facts is a question of law which this court reviews de novo.  O'Malley v. Ulland Bros., 549 N.W.2d 889, 892 (Minn. 1996).  The Indian Child Welfare Act (ICWA) requires that in any involuntary proceedings in which an Indian child may be removed from his parents and/or parental rights are terminated, the Indian child's tribe must be notified by registered mail of its right of intervention.  25 U.S.C. § 1912(a) (2000).  No foster care placement or termination proceedings may occur until 10 days after the tribe receives such notice.  Id.  It is undisputed that appellant was placed out of her home and that notice was not sent to appellant's tribe.  Thus, we must determine whether the failure to give notice violated the ICWA. 

            The ICWA applies only in "child custody" proceedings involving Indian children.  25 U.S.C. § 1901(5) (2000).  Child custody proceedings, for purposes of the statute, include foster care placements (family or institutional), termination of parental rights actions, preadoptive placements, and adoptive placements.  25 U.S.C. § 1903(1) (2000).  The statute expressly excludes placements and proceedings "based upon an act, which if committed by an adult, would be deemed a crime."  Id.  That is, the ICWA does not apply to out-of-home placements that arise from delinquency proceedings.

            Here, the district court determined that the ICWA did not apply to appellant's out-of-home placement because the placement arose out of a delinquency matter.  Appellant had repeatedly violated court orders in the underlying CHIPS proceeding, and the district court and county specifically warned her that a further violation would result in a contempt-of-court charge being filed against her.  Appellant subsequently violated another court order, and the county filed a delinquency petition charging appellant with misdemeanor contempt of court under Minn. Stat. § 588.20, subd. 2(4) (2002).  Appellant was placed in a juvenile facility in connection with the delinquency petition.  Thus, the out-of-home placement appellant received as part of the delinquency proceeding was based on an act that would have been a crime if committed by an adult.

Appellant argues that the underlying CHIPS action was faulty because of the failure to notify her tribe, and that the flaw in the CHIPS action invalidates the subsequent delinquency proceeding.  We disagree.  Contempt of court actions are separate from and collateral to the underlying matter.  Peterson v. Peterson, 278 Minn. 275, 281, 153 N.W.2d 825, 830 (1967).  And while appellant may be correct that her tribe should have been notified under the ICWA when the CHIPS action was commenced, appellant neither raised this issue during the CHIPS proceedings nor brought an appeal from any of the orders issued in the CHIPS proceedings.  Moreover, the out-of-home placement that is the subject of this appeal arose from a delinquency petition charging appellant with contempt of court, an act which would be a crime if committed by an adult.  Thus, we conclude that because the out-of-home placement in question arose out of the delinquency proceedings it was not subject to the notice requirements of the ICWA. 

II.

Appellant also contends that the district court abused its discretion by adjudicating appellant delinquent for contempt of court.  We agree.  Under Minn. Stat. § 260B.421 (2002), a child may not be adjudicated delinquent for contempt of court if the child is under the continuing jurisdiction of the court for a nondelinquency matter.  Because appellant was under the continuing jurisdiction of the district court as a child in need of protection and services, appellant should not have been adjudicated delinquent for contempt of court.  Therefore, we reverse the delinquency adjudication. 

But although we reverse the adjudication of delinquency it does not follow that the district court abused its discretion in ordering the out-of-home placement.  Even if the district court had not adjudicated appellant delinquent, the law provides that the court could have stayed the delinquency proceedings up to 180 days, and ordered appellant to a group foster care facility during that time.  Minn. Stat. § 260B.198, subds. 7, 1(b) (2002).

We conclude that the district court did not abuse its discretion in ordering appellant to spend time in a juvenile facility as part of the delinquency proceedings.  The law allows the district court to choose such a disposition, and the record indicates both that the disposition was in appellant's best interest and that appellant, on the record, expressed her agreement with the disposition. 

Affirmed in part and reversed in part.