In re AB

• Decision Date: 17 June 2003
• Docket Number: No. 20020309.,20020309.
• Citation: 663 N.W.2d 625,2003 ND 98
• Parties: In the Interest of A.B. Norean Hoots, L.S.W., Petitioner and Appellant, v. K.B., Respondent and Appellee. F.B., A.B., and Monty Mertz, Guardian ad Litem, Respondents. Turtle Mountain Band of Chippewa, Intervenor and Appellee.
• Court: North Dakota Supreme Court

663 N.W.2d 625

2003 ND 98

In the Interest of A.B.

Norean Hoots, L.S.W., Petitioner and Appellant, v. K.B., Respondent and Appellee.

F.B., A.B., and Monty Mertz, Guardian ad Litem, Respondents.

Turtle Mountain Band of Chippewa, Intervenor and Appellee.

No. 20020309.

Supreme Court of North Dakota.

June 17, 2003.

Susan Lynne Bailey, Assistant State's Attorney, Cass County Social Services, Fargo, N.D., for petitioner and appellant.

Douglas W. Nesheim (on brief), Johnson, Ramstad & Mottinger, PLLP, Fargo, N.D., for respondent and appellee.

B.J. Jones (argued), Rapid City, S.D., for intervenor and appellee.

VANDE WALLE, Chief Justice.

[¶ 1] Norean Hoots, a social worker with Cass County Social Services, ("Cass County") appealed from a juvenile court order granting a motion by the Turtle Mountain Band of Chippewa Indians ("Turtle Mountain Tribe") under the Indian Child Welfare Act ("ICWA"), 25 U.S.C. § 1901 et seq., to transfer jurisdiction of a parental termination proceeding from state juvenile court to the Turtle Mountain Tribal Court ("Tribal Court"). We affirm the transfer, holding the juvenile court did not commit reversible procedural error in overturning a judicial referee's recommendation to deny the motion to transfer, holding the juvenile court did not err in transferring jurisdiction of the child custody proceeding to Tribal Court, and holding the application of ICWA to the minor child is not unconstitutional.

I

[¶ 2] A.B. was born in 1993. A.B.'s biological father, F.B., and her paternal grandmother, H.L., are enrolled members of the Turtle Mountain Tribe, and A.B. is eligible for membership in the Turtle Mountain Tribe. A.B. is therefore an "Indian child" under ICWA. See 25 U.S.C. § 1903(4). During the time relevant to this appeal, F.B. was living in the state of Washington. On March 3, 2001, A.B. was living with her mother, K.B., in Cass County, when K.B. was arrested for driving under the influence. K.B. advised police that A.B., then age 7, and two younger siblings were home alone. A.B. was placed in protective custody, and after a March 2001 juvenile court determination that she was deprived, Cass County placed her in foster care with H.L., who was living in Fargo. At the request of H.L., Cass County placed A.B. in a non-Indian foster home in October 2001. In February 2002, K.B.'s probation was revoked, and she was sentenced to two years in jail. In a motion filed on February 20, 2002, the Turtle Mountain Tribe moved under ICWA to transfer jurisdiction of child custody proceedings involving A.B. from the state juvenile court to Tribal Court. K.B. objected, and the juvenile court refused to transfer jurisdiction to Tribal Court. See 25 U.S.C. § 1911(b) (providing, in part, state court shall transfer proceeding to jurisdiction of tribe, absent objection by either parent).

[¶ 3] On June 3, 2002, Cass County petitioned the juvenile court to terminate the parental rights of K.B. and F.B. In a motion dated July 17, 2002, and filed on July 23, 2002, the Turtle Mountain Tribe moved under ICWA to transfer jurisdiction of the proceeding involving A.B. from state juvenile court to Tribal Court. K.B. did not object to this motion to transfer jurisdiction. After a September 23, 2002 hearing, a judicial referee recommended denying the motion to transfer jurisdiction, concluding it was not timely because the proceeding was at an advanced stage and a transfer of jurisdiction to Tribal Court would create a forum inconveniens. The Turtle Mountain Tribe sought review of the referee's decision under N.D. Sup.Ct. Admin. R. 13. The juvenile court reversed the referee's recommendation, concluding the Turtle Mountain Tribe's motion to transfer was made within seven weeks after Cass County's petition to terminate parental rights was filed and was timely. The juvenile court also concluded the Tribal Court was not an inconvenient forum. The juvenile court granted the Turtle Mountain Tribe's motion to transfer jurisdiction to Tribal Court and dismissed the state court petition to terminate parental rights.

II

[¶ 4] In In the Interest of D.Q., 2002 ND 188, ¶ ¶ 8-9, 653 N.W.2d 713 (citations omitted), we outlined our relevant standards of review of a juvenile court proceeding initially heard by a referee and then reviewed by a district court:

"[A] district court's review of a judicial referee's findings and recommendations under Administrative Rule 13, § 11(b), when it is a review of the record, is governed by Rule 53, N.D.R.Civ.P." "Under Rule 53(f)(2), N.D.R.Civ.P., the district court was obliged to accept the referee's findings unless they were clearly erroneous.... The correctness of a referee's findings is an issue that must be determined by the district court in the first instance." When the district court rejects a judicial referee's factual findings, this Court employs a two-step review of the district court's factual determinations:

First, we must review, as a matter of law, the correctness of the district court's reversal, under the clearly erroneous standard, of any factual findings by the judicial referee. Second, if the district court's reversal of findings is upheld, we must then review the substitute or additional findings of the district court under the clearly erroneous standard of Rule 52(a), N.D.R.Civ.P.

A judicial referee's conclusions of law are fully reviewable in the district court, and the district court's conclusions of law are fully reviewable upon appeal to this Court.

In proceedings under the Uniform Juvenile Court Act, this Court's review of a juvenile court decision is governed by N.D.C.C. § 27-20-56, which provides, in part, that an appeal from a juvenile court's final order, judgment, or decree "must be heard by the supreme court upon the files, records, and minutes or transcript of the evidence of the juvenile court, giving appreciable weight to the findings of the juvenile court." "This court's review of a juvenile court's order is similar to a trial de novo." "We independently review the evidence, and our review is not limited to a determination of whether the juvenile court's findings are clearly erroneous." "We afford the juvenile court's findings appreciable weight, but we are not bound by them."

III

[¶ 5] Cass County argues the juvenile court erred in not allowing it adequate time to respond to the Turtle Mountain Tribe's request for review of the referee's decision and in reversing the referee's decision without reviewing a tape or transcript of the evidentiary hearing before the referee.

[¶ 6] The referee recommended denying the Turtle Mountain Tribe's motion to transfer jurisdiction in a decision issued on October 8, 2002. In a petition dated October 16, 2002, and filed with the juvenile court on October 21, 2002, the Turtle Mountain Tribe sought review of the referee's decision under N.D. Sup.Ct. Admin. R. 13, which provides, in part:

Section 11. Procedure for Review.

(a) A review of the findings and order may be ordered at any time by a district court judge and must be ordered if a party files a written request for a review within three days after receiving the notice in Section 10(b). The request for review must state the reasons for the review.

(b) The review by a district court judge must be a review of the record, unless the court orders a hearing of the proceeding.

On October 25, 2002, without a response from Cass County and apparently without reviewing a tape or transcript of the hearing before the referee, the juvenile court reversed the referee's decision.

[¶ 7] In In the Interest of L.A.G., 1999 ND 219, ¶ ¶ 6-8, 602 N.W.2d 516, we considered similar issues in the context of N.D. Sup.Ct. Admin. R. 13 and a juvenile court order reversing a referee's denial of the State's motion to transfer from juvenile court to district court the prosecution of a juvenile for felony possession of a controlled substance with intent to deliver. The referee recommended denial of the transfer, concluding the State had failed to establish probable cause to link the controlled substance to the juvenile. Id. at ¶ 4. The juvenile court reversed the referee's recommendation and transferred the prosecution to district court. Id. at ¶ 5. [¶ 8] On appeal to this Court, the juvenile argued the juvenile court erred in failing to review a transcript of the hearing before the judicial referee and in not permitting his counsel to file a brief or argue legal issues at a hearing during the review process. L.A.G., 1999 ND 219, ¶ 6,602 N.W.2d 516. The hearing before the judicial referee was recorded by shorthand and the transcript prepared from the reporter's notes apparently was not available to the juvenile court when it reversed the referee's decision. Id. We assumed the juvenile court did not review a tape or transcript of the hearing before the judicial referee, and we concluded that claimed failure was harmless. Id. We said our review of a juvenile court's order was similar to a trial de novo, and we concluded all the relevant factual matters presented at the evidentiary hearing were not in dispute and were included in the record reviewed by the juvenile court. Id. at ¶ 7. We said the juvenile's counsel did not argue that any testimony during the evidentiary hearing contradicted the relevant facts developed in the police reports and affidavits reviewed by the juvenile court, and any failure by the juvenile court to review a transcript of the proceedings did not constitute reversible error. Id. at ¶¶ 6-7. In rejecting the juvenile's argument that the juvenile court erred in not permitting him to file a brief or argue legal issues at a hearing during the review process, we said the record did not reflect that the juvenile's counsel made any response to the State's petition for review, or that the court prohibited the juvenile from responding. Id. at ¶ 8. We concluded the juvenile court did not commit reversible procedural error in its review of the referee's recommendation. Id.

[¶ 9] ...