Custody of S.E.G., Matter of

• Decision Date: 16 November 1993
• Docket Number: No. C4-93-1054,C4-93-1054
• Citation: 507 N.W.2d 872
• Parties: In the Matter of the CUSTODY OF S.E.G., A.L.W., and V.M.G.
• Court: Minnesota Court of Appeals

Page 872

507 N.W.2d 872

62 USLW 2371

In the Matter of the CUSTODY OF S.E.G., A.L.W., and V.M.G.

No. C4-93-1054.

Court of Appeals of Minnesota.

Nov. 16, 1993.

Review Granted Jan. 19, 1994.

Syllabus by the Court

1. "Good cause" to deviate from the adoption placement preferences in the Indian Child Welfare Act, 25 U.S.C. Sec. 1915(a) (1988), must be proven by clear and convincing evidence.

2. A trial court's determination whether there is "good cause" to deviate from the adoption placement preferences in the Indian Child Welfare Act, 25 U.S.C. Sec. 1915(a), is within the court's discretion and will not be reversed absent an abuse of discretion. An abuse of discretion will be found if the trial court's factual findings are clearly erroneous 3. "Good cause" to deviate from the adoption placement preferences in the Indian Child Welfare Act, 25 U.S.C. Sec. 1915(a), depends on the interrelationship of many factors including, but not limited to: the best interests of the child; the request of the biological parents; the reasonable preference of the child, if of sufficient age to express a preference; the extraordinary physical or emotional needs of the child; the unavailability of suitable families meeting the preference criteria after a diligent search; and the child's ties to the tribe.

or the court considered improper factors in making its determination.

4. A child's need for permanence may be considered in determining the child's extraordinary emotional needs, although by itself the need for permanence does not constitute "good cause" to deviate from the adoption placement preferences in the Indian Child Welfare Act. In determining the need for permanence, a trial court should consider all relevant factors including, but not limited to: the length of time a child has been placed outside the natural parents' home, the number of placements, the child's emotional needs, and the child's cultural need for permanence.

5. The extraordinary physical or emotional needs of the child must be established by qualified expert testimony. Qualified experts shall be determined by applying the guidelines in the Minnesota Department of Human Services manual.

6. State courts, in determining the custody of Indian children, must show deference to the wishes of the child's tribe. State courts, however, are not required, as a matter of law, to adopt the recommendations of the tribe.

Anita P. Fineday, Cass Lake, for appellant Leech Lake Band of Chippewa.

Wright S. Walling, Walling & Berg, P.A., Minneapolis, for respondents E.C. and C.C.

Tim Faver, Beltrami County Atty., Shari R. Schluchter, Asst. County Atty., Bemidji, for respondent Minnesota Dept. of Human Services and Beltrami County.

Charles R. Powell, Bemidji, for guardian ad litem Diane White.

Hubert H. Humphrey, III, Atty. Gen., Laura Sue Schlatter, Asst. Atty. Gen., St. Paul, for Guardian Com'r of Minnesota Dept. of Human Services.

Shirley M. Cain, Edwards, Edwards & Bodin, Duluth, for amicus curiae Red Lake Band of Chippewa Indians.

Paul T. Minehart, Minneapolis American Indian Ctr., Minneapolis, for amicus curiae Minneapolis American Indian Center.

Native American Rights Fund, Boulder, CO, for amicus curiae Minnesota Chippewa Tribe.

Considered and decided by NORTON, P.J., and HUSPENI and SCHUMACHER, JJ.

OPINION

HUSPENI, Judge.

The trial court granted the petition of non-Indians E.C. and C.C. to adopt three Indian children. The children's tribe, the Leech Lake Band of Chippewa, challenges the court's determination that there was "good cause" to deviate from the adoption placement preferences in the Indian Child Welfare Act, 25 U.S.C. Sec. 1915(a) (1988) (the Act). We affirm.

FACTS

Respondents E.C. and C.C. (the Cs), who are not Indians, seek to adopt three Indian children: S.E.G., born March 15, 1984; A.L.W., born July 20, 1985; and V.M.G., born November 27, 1987. The three children are biological sisters and are all enrolled members of appellant, the Leech Lake Band of Chippewa Indians (the tribe). ¹

Throughout their young lives, these children have been subjected to numerous foster home placements. It is suspected that S.E.G. and A.L.W. have been victims of sexual or physical abuse, although it is not clear from the record who was the perpetrator of the abuse. The record does indicate that all three children have a history of parental abandonment. Parental rights to the children were terminated in December 1991.

The first foster placement occurred over seven years ago in January 1986 when A.L.W. was placed in the A. foster home. In September 1986 S.E.G. and A.L.W. were placed in the home of their uncle. S.E.G. and A.L.W. were returned to their birth parents in December 1986. In April 1987, the children's parents married and moved out of state, despite a court order forbidding such a move. Upon their return to Minnesota, S.E.G. and A.L.W. lived with their maternal grandmother. V.M.G. was born in November 1987, and has never resided with her parents.

All three children were placed in the H. foster home in February 1988. V.M.G. was placed in the R. foster home in March 1988 and S.E.G. and A.L.W. were also placed in the R. foster home with V.M.G. in April 1988. Due to sexual acting out by the children, the Rs asked to have the children removed.

The children were moved to the W. foster home in February 1989 where they stayed until October 1990. The children were abruptly removed from this home after sexual abuse allegations arose. Although the foster parents were cleared of the allegations, they did not feel they could continue to care for the children because of the children's special needs.

In October 1990, the children were placed in the L. foster home. Due to a marriage dissolution, the children were abruptly returned to the home of their uncle.

S.E.G. was placed in the PATH (Professional Association of Treatment Homes) foster home of the Cs, in April 1991. Meanwhile, A.L.W. and V.M.G. were placed in the L. foster home until the Ls asked to be relieved of their duties. A.L.W. and V.M.G. were then also placed with the Cs in August 1991. At the time of the placement with the Cs, there were no Indian PATH foster homes available.

In January 1992, the children were placed in the preadoptive home of L.L. and B.L. Mrs. L. was 1/16 Chippewa and an enrolled member of the Fond du Lac Band of Chippewa. This move was with little preparation and without any prior overnight visits. The children remained in this preadoptive placement only nine days and then were returned to the Cs' home.

In October 1992, the children were removed from the Cs' home and placed in an Indian foster home. That foster home asked to be relieved of its duties and the children were moved to the foster home of A.C., an Indian, on November 13, 1992, where the children currently reside.

All foster and adoptive placements were made within the preferences of the Indian Child Welfare Act, 25 U.S.C. Sec. 1915(a) (1988), except for the placement with the Cs. In November 1992, the Cs filed a custody petition and sought to adopt all three children. The children's Indian tribe opposed the adoption and the matter proceeded to trial in March and April 1993.

Numerous experts and other witnesses testified on many issues including the needs of the children, the problems generally shared by Indian children who have been raised in non-Indian homes, and the availability of Indian homes. In an order issued May 20, 1993, the trial court determined that "good cause" existed to deviate from the adoption placement preferences in the Indian Child Welfare Act and granted the Cs' request to adopt all three children.

ISSUES

Did the trial court err in determining that "good cause" exists to deviate from the adoption placement preferences in the Indian Child Welfare Act, 25 U.S.C. Sec. 1915(a) (1988)?

1. What standard of proof should a trial court apply in determining whether there is "good cause" to deviate from the adoption placement preferences in the Act?

2. What standard of review should an appellate court apply in reviewing a trial court's determination that there is "good cause" to deviate from the adoption placement preferences in the Act?

3. What factors should a trial court apply in determining whether there is "good cause" to deviate from the adoption placement preferences in the Act? Was "good cause" established in this case?

4. May a child's need for permanence be considered in determining the child's extraordinary emotional needs? What factors should a trial court consider in determining a child's permanency need?

5. Is the evidence supported by qualified expert testimony? Did the tribe properly raise this issue on appeal?

6. Must a state court, in determining the custody of Indian children, show complete deference to the recommendations of the child's tribe?

ANALYSIS

In passing the Indian Child Welfare Act of 1978, 25 U.S.C. Secs. 1901-1963 (1988), Congress stated:

[A]n alarmingly high percentage of Indian families are broken up by the removal, often unwarranted, of their children from them by nontribal public and private agencies and that an alarmingly high percentage of such children are placed in non-Indian foster and adoptive homes and institutions.

25 U.S.C. Sec. 1901(4) (emphasis added).

Thus Congress declared its policy to be

to protect the best interests of Indian children and to promote the stability and security of Indian tribes and families by the establishment of minimum Federal standards for the removal of Indian children from their families and the placement of such children in foster or adoptive homes which will reflect the unique values of Indian culture, and by providing for assistance to Indian tribes in the operation of child and family service programs.

Id., Sec. 1902.

More recently, a task force commissioned by the Minnesota Supreme Court found that minority children were "vastly over-represented" within the foster care system. Minnesota Supreme Court Task Force on...