In the Matter of the Children of: R.L.C. and D.B.B., Sr., Parents.

In the Matter of the Children of: R.L.C. and D.B.B., Sr., Parents. A05-624, Court of Appeals Unpublished, October 25, 2005.

This opinion will be unpublished and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

A05-624

 

In the Matter of the Children of:
R.L.C. and D.B.B., Sr., Parents.

 

Filed October 25, 2005

Affirmed

Minge, Judge

 

St. Louis County District Court

File No. J0-02-651693

 

 

Anne Roeser, P.O. Box 3264, Duluth, MN 55803 (for appellant D.B.B., Sr.)

 

Alan L. Mitchell, St. Louis County Attorney, Joanne Vavrosky, Assistant County Attorney, 320 West 2nd Street, Room 403, Duluth, MN 55802 (for respondent St. Louis County)

 

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

 

            Considered and decided by Minge, Presiding Judge; Kalitowski, Judge; and Crippen, Judge.*

U N P U B L I S H E D  O P I N I O N

MINGE, Judge

            D.B.B., Sr. challenges the removal of his children from his custody and their placement in the home of relatives of the children's mother on the grounds that the requirements of the Indian Child Welfare Act ("ICWA") were not met and that there was inadequate evidence to support the petition.  We affirm.

FACTS

            Appellant is the father of D.B.B., Jr. and S.L.C., ("the children") ages six and five.  He is enrolled in the White Earth Band of Chippewa, an Ojibwe band.  Appellant suffered a traumatic brain injury and has a criminal history including charges for domestic assault.  Appellant was awarded permanent legal and physical custody of D.B.B., Jr. in November 1999 and S.L.C. in August 2002.  D.B.B., Jr. is diagnosed with fetal alcohol syndrome, speech delay, limited sleeping, severe startle reflex, self-abuse, disruptive behavior and other behavioral disorders.  S.L.C. is diagnosed with fetal alcohol syndrome, along with speech and socialization delays, anger and high anxiety levels.    

            The children and their mother are enrolled in the Seine River First Nation, an Ojibwe band located in Ontario, Canada.  The mother had not had custody of the children during the time that St. Louis County courts dealt with the case and did not appear at trial.  She has rarely complied with reunification plans, has a significant chemical dependency problem, and has lost custody of her six children.  At trial, a representative of Seine River First Nation testified that members of the band cross between Canada and the United States and maintain contact with Ojibwe bands in Minnesota. 

            Various proceedings for placement and protection of the children have been held in St. Louis, Koochiching, and Hennepin Counties.  The children were physically removed from appellant's custody on December 19, 2002, after he was alleged to have assaulted his girlfriend in their presence.  Subsequently, the St. Louis County juvenile court temporarily placed the children with a family in Duluth, where they remained during this proceeding.

            In July 2003, respondent St. Louis County petitioned that the children be placed with their maternal uncle and his wife, Rex and Debra Jim ("the Jims").  The Jims are members of the Seine River First Nation and live in Canada.  The mother has two older children who have been raised by the Jims' extended family.  The Jims have raised another special needs child and have access to rehabilitative services.  A band representative of Seine River First Nation testified that the band would provide necessary services if the children were placed with the Jims. 

            At the time the July 2003 petition was filed, the children were not enrolled in any tribe in the United States and several tribes had denied their eligibility; thus the parties did not believe that the Indian Child Welfare Act ("ICWA") applied.  While the proceeding was pending, appellant provided a detailed family history to the White Earth Band of Chippewa and it enrolled the children.  The district court then determined that ICWA applied, the petition to place the children with the Jims was withdrawn, and efforts were made to reunify the children with appellant as required by ICWA.  Respondent provided appellant and the children with programming to achieve reunification, including a sobriety program, domestic violence intervention programming, and programs for the children's emotional issues and delays in speech and socialization.  Appellant was assessed psychologically and for parenting skills.

            Although another petition was filed to permanently place the children with the Jims, efforts continued for reunification and settlement during the proceeding.  After appellant successfully completed most of the required programming, he began visits in the summer of 2004, and the parties agreed that the children would return to appellant's care with supportive services.  But shortly before the children were to return, the children's mother alleged that appellant assaulted her and caused her to miscarry.  Although appellant denied the allegation and the mother later recanted, the White Earth Band, Seine River First Nation, and respondent withdrew support for appellant's reunification with the children.  A trial on the petition began in November 2004 and was concluded in February 2005.  Ultimately, the mother of the children consented to placement with the Jims.

            Several witnesses testified at the trial, including Kelly Gravening, an ICWA social worker for St. Louis County; Carol DeVerney, a social worker with the Fond du Lac Band's Department of Human Services and a courtesy case manager for the White Earth Band; and Penny King, a social worker employed by the White Earth Band who was authorized to speak for the band at court proceedings.[1]  King's affidavit states that she is a social worker for the White Earth Band and that she is qualified to provide expert witness testimony under ICWA as she is knowledgeable in tribal customs as they pertain to family organization and child-rearing practices. 

Dr. Richard Duus, a psychologist with the Duluth Psychological Clinic, also testified about a psychological evaluation of appellant that was conducted in March 2004.  He concluded it was unrealistic to expect appellant to parent his children on a full-time basis without significant support.  Leslie Gibbs, a mental health counselor with the Fond du Lac Band working at the Center for American Indian Resources, testified about the parenting assessment he performed on appellant in April 2004 and he concluded appellant lacked the capacity to understand his children's special needs. [2]

            The district court ordered placement of the children with the Jims.  This appeal follows.   

D E C I S I O N

I.

            The first issue is whether the expert witness requirement of the Indian Child Welfare Act ("ICWA") has been met.  ICWA provides that:

No foster care placement may be ordered . . . in the absence of a determination, supported by clear and convincing evidence, including testimony of qualified expert witnesses, that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child. 

 

25 U.S.C. § 1912(e) (2000) (emphasis added); see also Minn. R. Juv. Prot. P. 39.04, subd. 2(a).  Appellant claims that because the district court did not specify the witness who was qualified under ICWA, its placement decision violates ICWA.

To determine that a witness qualifies under ICWA, Minnesota follows Bureau of Indian Affairs (BIA) Guidelines and Minnesota Department of Human Services (DHS) Guidelines.  In re Welfare of Children of J.B., 698 N.W.2d 160, 166-67 (Minn. App. 2005) (stating that ICWA qualification is controlled largely by the Tribal/State Agreement on Indian Child Welfare, appended to a DHS bulletin); see also In re Welfare of M.S.S., 465 N.W.2d 412, 417 (Minn. App. 1991); In re Welfare of B.W., 454 N.W.2d 437, 444 (Minn. App. 1990) ("The DHS manual is an explicit expression of state policy consistent with and carrying out the purposes of the federal ICWA.").  Under DHS guidelines, a qualified expert is a person who is

a.         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 child rearing practices;

b.         a lay expert witness who has 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

c.         a professional person who has substantial education and experience in the area of his/her specialty and substantial knowledge of prevailing social and cultural standards and child rearing practices within the Indian community.             

 

Tribal/State Indian Child Welfare Agreement, Minn. Dep't of Human Servs. Bulletin      # 99-68-11, at 9 (Aug. 25, 1999); see also Minn. R. 9560.0221, subp. 3G (2005).

            In B.W., this court recognized that ICWA was intended to remedy historical injustices caused by state courts and welfare agencies, which were unfamiliar with Indian culture and child-rearing practices, removing Indian children from Indian homes because of culturally-perceived inadequacies.  B.W., 454 N.W.2d at 443-44; see also Miss. Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 32-37, 109 S. Ct. 1597, 1599-1602 (1989). 

            Here, the White Earth Band of Chippewa, in which the father and children are enrolled, designated social worker Penny King as its representative at trial.  Ms. King is a member of the Red Lake Band of Ojibwe and she provided an affidavit in which she states she can provide testimony as a qualified ICWA representative and that she is a social worker employed by the White Earth Band of Chippewa.  See J.B., 698 N.W.2d at 167 (stating that the designation by a child's tribe that a witness is an expert is not subject to challenge by the DHS and that district court properly found that expert, who was enrolled member, knowledgeable of tribe's child-rearing practices, and authorized to testify on behalf of the tribe generally and in the matter at bar was an expert under ICWA).  Gravening and DeVerney (the other Native American social workers in the case), Susan Love (the Native American guardian ad litem), and the mother's tribe all agreed the children should be removed from the father's care and placed with the Jims.

In this case, the district court did not specify any witness as a qualified expert under ICWA.  Instead, the district court found that "[e]xpert witnesses . . . as defined under ICWA . . . have testified."  This lack of specificity is not reversible error because King was qualified under ICWA to provide expert testimony in this matter, and she supported removing the children from appellant's custody.  We agree with appellant that it is advisable to specifically address core ICWA requirements in a district court order and that testimony by an ICWA expert is a core requirement.  However, this record is replete with testimony of witnesses who are amply qualified under ICWA as professionals and as members of various bands of the Ojibwe tribe with substantial experience and knowledge of tribal customs as they pertain to family organization and child-rearing practices.

II.

            The second issue is whether the record supports the placement of the children with the Jims.  On review, "[c]onsiderable deference is due to the district court's decision because a district court is in a superior position to assess the credibility of witnesses."  In re Welfare of L.A.F., 554 N.W.2d 393, 396 (Minn. 1996).  This court closely inquires 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); In re Welfare of S.Z., 547 N.W.2d 886, 893 (Minn. 1996).

In a hearing on a juvenile protection petition, the state has the burden of proving the grounds in the petition by clear and convincing evidence.  Minn. R. Juv. Prot. P. 39.04, subd. 1.  The clear and convincing standard requires proof by more than a preponderance of the evidence, but less than proof beyond a reasonable doubt.  Weber v. Anderson, 269 N.W.2d 892, 895 (Minn. 1978).

As previously stated, ICWA requires that before a foster care placement may be ordered, a court must determine that continued custody of the child by the parent "is likely to result in serious emotional or physical damage to the child" and this determination must be supported by clear and convincing evidence, including the testimony of an expert witness.  25 U.S.C. 1912(e); see also In re Welfare of Chosa, 290 N.W.2d 766, 769 (Minn. 1980) (stating that ICWA standards of proof for a termination proceeding applied in that case);Minn. R. Juv. Prot. P. 39.04, subd. 2(a).[3]

            BIA Guidelines for state courts provide the following standard for clear and convincing evidence:

To be clear and convincing, the evidence must show the existence of particular conditions in the home that are likely to result in serious emotional or physical damage to the particular child who is the subject of the proceeding.  The evidence must show the causal relationship between the conditions that exist and the damage that is likely to result.

 

44 Fed. Reg. 228 at 67593 (Nov. 26, 1979). 

 

            Appellant claims that certain allegations in the petition and court findings are not supported by clear and convincing evidence.  Here, the respondent alleged in the second petition, among other allegations, that:

Neither parent is in a position to meet the children's special needs now or in the foreseeable future.  Both [the mother] and [appellant] minimize the severity of the children's current and potential problems . . . .  The father is disabled because of a brain injury and impaired memory, and he is unable to consistently exercise good judgment in his parenting.

 

            At trial, Gravening (the St. Louis County ICWA social worker) testified that she worried the children would witness "domestic violence" in appellant's care and that appellant and the children's mother have sabotaged each other's efforts to reunify with the children.  She testified that appellant remained involved with the mother; that the mother accused appellant of assaulting her and causing her miscarriage in September 2004; that the mother and appellant obtained mutual orders for protection (OFPs); that three other women had filed for OFPs against appellant; and that appellant did not understand that his children were traumatized by the abuse that they witnessed.  Finally, she testified that if appellant and the mother remained involved, serious emotional or physical damage to the children was likely to result.

            DeVerney (the Fond du Lac social worker/White Earth case manager) testified in support of removal of the children from appellant's custody.  She stated that she warned appellant to avoid the children's mother and other women because those relationships distracted from his reunification plan.  She added that she feared for the children because of appellant's "chaotic lifestyle and the progress of these children, the developmental progress and the emotional progress . . . that they would make or not make . . . ."  Finally, she testified that either parent's continued custody would likely result in emotional or physical damage to the children.

King (the White Earth social worker/White Earth representative) testified that she concurred with Gravening's testimony and that she recommended that the children not be returned to appellant because his "chaotic lifestyle" undermined their needs for permanency and stability. 

After his psychological examination, Dr. Duus reported that "it would be relatively unwise and unfair to expect [appellant] to engage in the relatively complex coordination and parenting skills that will be required for two special needs children . . . [and] relatively unrealistic to expect him to participate in a collaborative teamwork with [social service providers.]"  And after his parenting assessment, Gibbs (the mental health counselor) concluded that "the children's mental health needs appear to outweigh the client's ability to effectively provide parenting and structure for the two children."  The children's severe physical and emotional conditions include fetal alcohol syndrome; speech, sleeping, and behavioral disorders; heightened anger and anxiety levels; self-abuse; and other problems.  The chaotic lifestyle and severely troubled life of the father and his difficulty in both caring for the children and obtaining services not only make it unlikely that he will be able to successfully cope with their problems, but it also makes it likely that their problems will be compounded.

Appellant claims that the alleged assault on the children's mother in the summer of 2004 caused everyone to turn on him and is causing him to lose his children and that since the children's mother has recanted, there is not clear and convincing evidence to support the petition.  First, we note that based on Dr. Duus' testimony and the extensive record, there may have been clear and convincing evidence even before that incident.  Second, the court and the various witnesses were skeptical of the mother's recantation.  Third, appellant admitted some type of encounter may have occurred.  Finally, the Native American bands and respondent were constantly evaluating the challenges of working with appellant and returning the children to his custody.  The district court had an ample basis to conclude that despite the difficulties of establishing the nature and extent of the assault, the decision to proceed with the placement with the Jims was in good faith.

            We recognize that the record is not one-dimensional.  At trial, the appellant testified he had two years of sobriety and is active in A.A.  The witnesses testified that appellant did comply with parts of the reunification plan and demonstrated a genuine desire to raise his children.  The question is not whether there is some evidence favorable to the appellant.  The question is whether there is clear and convincing evidence that the conditions in appellant's home and his custody will result in serious emotional or physical damage to the children.  The record is replete with examples of failures of the parents of these children, despite exhaustive attempts by St. Louis County and others to help appellant cope with his own problems and to unite him with his children.  It is a sad saga from their infancy until the record closed.  Appellant suffers from a serious brain injury and impaired memory, he lacked good judgment in parenting decisions, and he repeatedly had violent relationships with women which resulted in instability and chaos for his children.  The testimony is clear that because of their own conditions, the children need stability and structure to cope and flourish.  We conclude that the district court did not abuse its discretion in finding that the evidence in the record is clear and convincing that continued custody of S.L.C. and D.B.B., Jr. by appellant is likely to result in serious emotional damage, that it is not in their best interests for appellant to have custody, and that the district court did not err in transferring legal and physical custody to the Jims.

III.

            Finally, appellant raises an issue of whether the district court's decision violates ICWA because the stability and security of Indian families is not protected.  See 25 U.S.C. §§ 1901, 1902 (2000).    

Here, both of the parents' respective bands approve of the placement.  The mother's family resides at the Seine River First Nation and she moved there at the time of trial.  The children are being placed with their mother's relatives who also have custody of the children's older siblings.  Despite repeated inquiry, no relatives of the father who could provide long-term care for the children have been identified.  The Jims have experience dealing with a special-needs child.  They are enrolled members of the Seine River First Nation.  They are willing to arrange for continued contact between appellant and his children.  This placement both offers the children the prospect of stability and security and is consistent with the goal of having the children raised in a culturally-appropriate environment and with ICWA requirements favoring placement with extended family members who are Indian.  25 U.S.C. § 1915(b) (2000). 

Affirmed.

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

[1]  Ms. Gravening is an enrolled member of the Bad River Band, Ms. DeVerney is an enrolled member of the Fond du Lac Band, and Ms. King is an enrolled member of the Red Lake Band; all these bands are Ojibwe.

[2] Mr. Gibbs identified himself as a Native American from the Red Lake Band of Ojibwe when he testified.  However, there is no evidence in the record that Mr. Gibbs is an ICWA expert.

[3] We note that ICWA does not preempt state law safeguarding the rights of parents and Indian guardians, but instead requires that the higher standard based on state or federal law be applied.  25 U.S.C. § 1921 (2000).  Since appellant only claims that ICWA standards were not met, we do not separately consider the application of Minnesota state law.  CfMinn. Stat. § 260C.001, subd. 2 (2004) (requiring that in proceedings involving an American Indian child, the best interests of one child must be determined consistently with ICWA).