In the Matter of the Children of M.T., Parent.

This opinion will be unpublished and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

A04-461

 

In the Matter of the

Children of M.T., Parent.

 

Filed September 14, 2004

Vacated and remanded Hudson, Judge

 

Hennepin County District Court

File Nos. 235746, J9-01-058937

J3-01-070260, J1-03-065286

 

Mary Jo B. Hunter, Michele K. Newell, Certified Student Attorney, Hamline University School of Law Child Advocacy Clinic, 1536 Hewitt Avenue, St. Paul, Minnesota 55104-1284 (for appellant guardian ad litem)

 

Shannon Smith, Jacqueline Beaulieu, Indian Child Welfare Law Center, 1113 East Franklin Avenue, Suite 600, Minneapolis, Minnesota 55404 (for respondent mother)

 

Amy Klobuchar, Hennepin County Attorney, Duane A. Bartz, Assistant County Attorney, 525 Portland Avenue, Suite 1210, Minneapolis, Minnesota 55415 (for respondent Hennepin County Human Services Department)

 

            Considered and decided by Kalitowski, Presiding Judge; Klaphake, Judge; and Hudson, Judge.

U N P U B L I S H E D   O P I N I O N

HUDSON, Judge

Appellant guardian ad litem (GAL) Rose Andrade challenges the district court's order terminating its jurisdiction over a petition to terminate the parental rights of respondent M.T. and ordering the immediate reunification of M.T. with her four children.  The district court dismissed the case, concluding that the Hennepin County Department of Human Services failed to provide expert testimony as required under the Indian Child Welfare Act (ICWA).  Further, the district court concluded that it should give deference to the Rosebud Sioux Tribe's resolution supporting reunification of M.T. with her children.  Because we conclude that the district court erred by failing to order a brief continuance either to review the GAL's qualifications and determine if she qualified as an expert under ICWA or to allow the department to present a new expert witness, we vacate the order and remand for the district court to address the ICWA expert witness issue and to hold the termination-of-parental-rights hearing. 

FACTS

Respondent M.T. is the mother of four children, M.C.M., A.N.T., M.T., and A.T.  The children are enrolled, or are eligible to be enrolled, in the Rosebud Sioux Tribe (tribe) in South Dakota.  The Indian Child Welfare Act (ICWA) therefore applies in this case.  In May 2001, respondent began receiving child-protective services because she neglected the medical needs of her oldest daughter, M.C.M.  On June 12, 2001, the Hennepin County Human Services Department (department) filed a child-in-need-of-protective-services petition for M.C.M.  M.C.M. was placed out of the home on June 15, 2001.  At this time, respondent's three other children remained in her care.  Pursuant to the ICWA, the tribe intervened as a party in August 2001. 

On October 29, 2001, the court adjudicated all four of respondent's children in need of protection or services because of respondent's inability to meet the daily needs of her children.  On December 12, 2001, the department filed a petition to terminate parental rights to M.C.M.  In February 2002, the court ordered out-of-home placement for A.N.T., M.T., and A.T.  At that time, the court ordered respondent to (1) participate in a psychological evaluation and follow all of the recommendations, (2) participate in individual therapy, (3) participate in her children's therapy, (4) have a parenting assessment and participate in a parenting education program, (5) reside in a rule-36 facility, (6) maintain supervised visitation with her children, and (7) cooperate and maintain contact with the department.   

            The department and the GAL contend that, while continued therapy was recommended, respondent did not keep up with regular therapy.  But respondent contends that during the time she was involved with the department, she actually increased her visits with her therapist.  The GAL and the department also contend that although respondent was offered multiple services during her involvement with the department, respondent did not make significant gains toward becoming a stable parent. 

            On August 22, 2003, the department filed a petition to terminate respondent's parental rights to A.N.T., M.T., and A.T.  A termination-of-parental-rights hearing was scheduled for February 3, 4, and 5, 2004.  On February 2, 2004, the Rosebud Sioux Tribal Council passed a resolution directing the reunification of all of the children with respondent, stating that she had complied with her case plan.  The tribe did not appear at the scheduled hearing, but on the night before the hearing faxed the resolution and an expert affidavit supporting reunification to respondent's attorney.  At the hearing, the department stated that the tribe's legal counsel had informed the department the night before the hearing that the tribe had passed a resolution requesting the immediate reunification of respondent with her children.  The resolution did not include a provision to provide expert testimony at the trial.  Prior to this phone call, the department was under the impression that the tribe would be attending the hearing and bringing an ICWA expert to testify. 

The department and the GAL opposed the tribe's resolution and stated that they were prepared to go forward with the trial; with Rose Andrade, the GAL, qualified as an expert under the ICWA.  Alternatively, the department stated that it could possibly have a new expert to testify by the end of the week. 

            The court declined to decide whether the GAL was an expert under the ICWA and refused to continue the proceeding to allow another expert to become familiar with the case.  The district court found that the proceeding was not possible without expert testimony.  Further, the district court concluded that the court should respect the decision of the tribe, dismissed the juvenile court's jurisdiction over this matter, and ordered immediate reunification of the children with their mother. 

            The department and the GAL challenge this decision and request that this court vacate the dismissal and allow the termination hearing to proceed.

D E C I S I O N

            When a trial court's findings in a termination case are challenged, appellate courts are limited to determining whether the findings address the statutory criteria, whether those findings are supported by substantial evidence, and whether they are clearly erroneous.  In re Welfare of M.D.O., 462 N.W.2d 370, 375 (Minn. 1990).  As in all termination cases, our paramount concern is  the child's best interests.  See id.

A.         Expert Testimony 

            In cases involving Indian children, the court must make findings and conclusions consistent with the Indian Child Welfare Act of 1978.  25 U.S.C. §§ 1901€‘1963 (2000).  Minn. Stat. § 260.012(a)(3) (2002); In re Welfare of B.W., 454 N.W.2d 437, 442€‘44 (Minn. App. 1990).  The ICWA requires that a termination-of-parental-rights order be supported "by evidence beyond a reasonable doubt, including testimony of a qualified expert witness."  25 U.S.C. § 1912(f).  The Bureau of Indian Affairs (BIA) guidelines and Minnesota Rule 9560.0221 provide substantially similar definitions of what constitutes an expert witness under the Act.  Under the Minnesota Rule, an expert means

(1) a member of an Indian child's tribe who is recognized by the tribal community as knowledgeable in tribal customs of family organization and child rearing;

(2) 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 child rearing practices within the Indian child's tribe; or

(3) a professional person having substantial education and experience in the area of the professional person's specialty, along with substantial knowledge of prevailing social and cultural standards and child-rearing practices within the Indian community. 

 

Minn. R. 9560.0221, subp. 3G (2003); see also BIA Guidelines, 44 Fed. Reg. 67,584, 67,593 (Nov. 26, 1979).  We have held that an individual's status as a GAL or member of an Indian tribe does not automatically qualify that individual as an expert.  But, upon review of the potential expert's qualifications and expected testimony, in light of the statutory criteria, a GAL could qualify as an expert.  See In re Welfare of M.S.S., 465 N.W.2d 412, 417 (Minn. App. 1991) (concluding that under the criteria outlined by the BIA, a social worker and a guardian ad litem may qualify as expert witnesses); B.W., 454 N.W.2d at 444€‘45 (Minn. App. 1990) (finding that a non-Indian child-protection caseworker did not qualify as an expert witness, but a GAL who was a member of the Chippewa Cree Indian Tribe may qualify as a lay expert).

The GAL and the department argue that the district court abused its discretion by dismissing the case based on the absence of an ICWA expert.  Specifically, they contend that the district court erred by refusing to consider whether the GAL was qualified as an expert witness under the ICWA, arguing that she was qualified and immediately available to testify.  Respondent counters that the district court was correct in not determining whether the GAL was qualified as an expert under the ICWA because the department did not notify respondent that it was calling the GAL as an expert to testify at the trial.

Neither the department nor the GAL should be held responsible for the fact that an expert was not present to testify at the hearing.  Because the tribe did not provide the department with any meaningful notice that the tribe's expert, who all parties anticipated would be attending the hearing, would no longer be testifying at the hearing, the department could not have been expected to provide an alternative expert to testify.  The lack of expert testimony was the direct result of the tribe's resolution, and not the result of the department's failure to meet its burden.  We do not believe that respondent would have been prejudiced if the district court had granted a brief continuance either to review the qualifications of the GAL or to allow the department a few days to find another expert.  We are cognizant that the district court's decision denying the continuance was motivated by its concern over the age of this case and the extended time that the children have been in out-of-home placement.  But it does not appear that securing a new expert would have taken a significant amount of time.  Indeed, the GAL was ready and available to testify if the district court found her qualified.  Further, the department offered to provide an alternate expert by the end of the week.

"The paramount consideration in all proceedings for the termination of parental rights is the best interests of the child.  In proceedings involving an American Indian child, . . . the best interests of the child must be determined consistent with the Indian Child Welfare Act." Minn. Stat. § 260C.001, subd. 3(2) (2002); see also Minn. Stat. § 260C.301, subd. 7 (2002).  Without holding the termination hearing, the district court could not make an informed decision about whether reunification was in the best interests of the child.  Therefore, we conclude that the district court erred by not granting a brief continuance to determine if the GAL was qualified as an expert under the ICWA or to allow the department to present the district court with a new expert. 

B.         Deference to the Tribe

            We have held that while the tribe's wishes are an important factor to consider in determining custody of children, to require complete deference would "render a trial or the exercise of any trial court discretion meaningless, because the trial court always would be required to follow the tribe's recommendations regardless of the evidence adduced."  In re Custody of S.E.G., 507 N.W.2d 872, 885 (Minn. App. 1993), rev'd on other grounds, 521 N.W.2d 357 (Minn. 1994). 

Appellant GAL and the department argue that the district court erred by completely deferring to the tribal council's position without any regard to what the weight of the other evidence might have proved. 

            Respondent counters that the district court did not completely defer to the tribal council's decision; rather, it gave the council the respect its decision deserved.  Respondent contends that the district court based its decision on both the tribal council's decision and the fact that there was no available expert present to testify. 

            Here, it is clear that the district court decided to dismiss this case based almost solely on the tribal resolution.  Had the tribe not expressed its desire for reunification, it is unlikely that the court would have dismissed the case on the basis of the lack of expert testimony, particularly when the department offered to find a new expert, and, in the alternative, immediately offered the GAL as an expert. 

The tribe's recommendation deserves respect and weight.  But, the district court could not make a thoughtful decision concerning the best interests of the childrenthe paramount consideration in juvenile protection casesif it did not review the additional evidence.  Therefore, we conclude that the district court erred by completely deferring to the tribal resolution without holding the termination-of-parental-rights hearing.

C.        Jurisdiction

Finally, citing Minn. R. Juv. Prot. Prac. 34.03(3)(a) (2004), appellant argues that the district court abused its discretion by dismissing the case without a finding that the department failed to state a prima facie case for termination of parental rights.  We disagree.  Under Minn. Stat. § 260C.193, subd. 6 (2002), the district court had the authority to terminate its jurisdiction or dismiss the petition to terminate parental rights on its own motion prior to the hearing. 

We conclude that the district court erred by failing to grant a continuance either to review the GAL's qualifications as an expert or to allow the department to introduce a new expert and by completely deferring to the tribe's resolution.  Accordingly, we vacate the district court's order and remand for the district court to address the ICWA expert witness issue and to hold the termination-of-parental-rights hearing. 

Vacated and remanded.