Custody of A.K.H., In re
| Decision Date | 29 June 1993 |
| Docket Number | No. C4-93-34,C4-93-34 |
| Citation | 502 N.W.2d 790 |
| Parties | In re the CUSTODY OF A.K.H. |
| Court | Minnesota Court of Appeals |
Syllabus by the Court
Intra-family custody disputes are not excluded from the Indian Child Welfare Act, 25 U.S.C. §§ 1901-1963 (1988). The proposed placement of an Indian child in a grandparent's home is a "foster care placement" within the meaning of the Indian Child Welfare Act, 25 U.S.C. § 1911(c). Therefore, a child's Indian tribe has a statutory right to intervene in a custody proceeding between the parents and a grandparent.
Anita P. Fineday, Cass Lake, for appellant intervenor.
Elizabeth E. Dunn, Legal Aid Service of Northeastern Minnesota, Brainerd, for respondent Grandmother.
Victor H. Smith, Smith Law Office, Walker, for respondent Mother.
Respondent Father, pro se.
Considered and decided by SHORT, P.J., and KALITOWSKI and SCHUMACHER, JJ.
The district court denied the child's Indian tribe the right to intervene in this intra-family custody proceeding. We reverse and remand.
This action arose out of a custody proceeding involving an Indian child, A.K.H., born April 14, 1989. A.K.H. is an enrolled member of the Leech Lake Band of Chippewa Indians. A.K.H. has resided with respondent maternal grandmother for most of her life. The grandmother is also an enrolled member of the Leech Lake Band of Chippewa Indians, as are respondents mother and father.
The grandmother filed a summons and petition for the custody of A.K.H. on May 27, 1992. She sought "sole physical and legal custody" of A.K.H. with visitation rights to the parents, but did not seek to terminate parental rights.
On July 9, 1992, the Leech Lake Band of Chippewa Indians moved to intervene in the custody proceedings pursuant to the Indian Child Welfare Act of 1978, 25 U.S.C. §§ 1901-1963 (1988) (the "Act"). The district court denied the motion on December 3, 1992 without explanation. The Leech Lake Band of Chippewa Indians appeals from this order, arguing it has a statutory right to intervene under the Act.
Did the district court err in determining that under the Indian Child Welfare Act, an Indian tribe does not have a statutory right to intervene in a custody dispute between the parents and grandmother of a child where all the parties are enrolled members of an Indian tribe?
The facts of this case are undisputed. The issue is whether the Leech Lake Band of Chippewa Indians has a statutory right to intervene in this custody proceeding under the Indian Child Welfare Act, 25 U.S.C. §§ 1901-1963 (1988). Intervention is governed by 25 U.S.C. § 1911(c) which provides:
In any State court proceeding for the foster care placement of, or termination of parental rights to, an Indian child, the Indian custodian of the child and the Indian child's tribe shall have a right to intervene at any point in the proceeding.
Where the district court applies the language of a statute to a set of undisputed facts, the district court's conclusion is one of law and does not bind this court. A.J. Chromy Constr. Co. v. Commercial Mechanical Servs., Inc., 260 N.W.2d 579, 582 (Minn.1977). The construction of a statute is a question of law and is subject to de novo review on appeal. Doe v. Minnesota State Bd. of Medical Examiners, 435 N.W.2d 45, 48 (Minn.1989). Therefore, we review the district court's construction of the applicable statute de novo. See id.
All parties concede this case does not involve the termination of parental rights. Thus, the Leech Lake Band of Chippewa Indians may intervene only if this case involves "foster care placement." See 25 U.S.C. § 1911(c). The Indian Child Welfare Act defines "foster care placement" as
any action removing an Indian child from its parent or Indian custodian for temporary placement in a foster home or institution or the home of a guardian or conservator where the parent or Indian custodian cannot have the child returned upon demand, but where parental rights have not been terminated.
25 U.S.C. § 1903(1)(i).
"Foster care placement" encompasses four prongs: (1) removing the Indian child from the child's parent or Indian custodian; (2) temporarily placing the child in a "foster home or institution or the home of a guardian or conservator" where; (3) the parent or Indian custodian cannot have the child returned upon demand; and (4) parental rights have not been terminated.
Prongs one, three, and four have been met in this case. A.K.H. is being removed from her parents, the parents cannot have the child back upon demand and parental rights are not being terminated. Thus, our focus is on whether A.K.H. will be temporarily placed in a "foster home or institution or the home of a guardian or conservator."
Minn.Stat. § 260.015, subd. 7 (1992) defines "foster care" as
the 24 hour a day care of a child in any facility which for gain or otherwise regularly provides one or more children when unaccompanied by their parents, with a substitute for the care, food, lodging, training, education, supervision or treatment they need but which for any reason cannot be furnished by their parents or legal guardians in their homes.
(Emphasis added.) We do not believe the grandmother's home is a "foster home" because she does not "regularly provide" for the care of children. Additionally, the grandmother's house cannot be considered an "institution." Therefore, to fall within the definition of "foster care placement," the grandmother's home must be considered the home of a "guardian" or "conservator."
The terms "guardian" and "conservator" are not defined in the Indian Child Welfare Act. Under state law, however, the guardian of a minor "has the powers and responsibilities of a parent." Minn.Stat. § 525.619 (1992). For example, a guardian is empowered to facilitate the ward's education, social and other activities and to authorize medical care. Id., § 525.619(c). A conservator for a minor has the power to provide for the needs of the child, including the duty to pay the reasonable charges for the support, maintenance and education of the child. Minn.Stat. § 525.6198(2) (1992) ().
A.K.H.'s grandmother would have these powers if she is awarded custody. We conclude, therefore, that the rights acquired by the grandmother as A.K.H.'s custodian would clearly encompass the terms "guardian" and "conservator." Cf. In re S.B.R., 43 Wash.App. 622, 719 P.2d 154, 156 (Wash.App.1986) (). Thus, we hold that the placement of A.K.H. with her grandmother would be placement in the home of a "guardian or conservator" within the meaning of the Indian Child Welfare Act.
Accordingly, since all four prongs of the "foster care placement" test have been met, we conclude the proposed placement of A.K.H. with her grandmother is a "foster care placement" as defined by 25 U.S.C. § 1903(1)(i).
Having determined that this case involves a "foster care placement," we must look at the Indian Child Welfare Act in a broader context and determine whether it may apply to a purely intra-family custody dispute where all interested parties are enrolled members of an Indian tribe.
In passing the Indian Child Welfare Act, Congress found:
(1) that * * * Congress has plenary power over Indian affairs;
(2) that Congress * * * has assumed the responsibility for the protection and preservation of Indian tribes and their resources;
(3) that there is no resource that is more vital to the continued existence and integrity of Indian tribes than their children and that the United States has a direct interest, as trustee, in protecting Indian children who are members of or are eligible for membership in an Indian tribe;
(4) that an 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 an alarmingly high percentage of such children are placed in non-Indian foster and adoptive homes and institutions; and
(5) that the States * * * have often failed to recognize the essential tribal relations of Indian people and the cultural and social standards prevailing in Indian communities and families.
25 U.S.C. § 1901. Therefore, in passing the Indian Child Welfare Act, Congress declared its policy was
to protect the best interests of Indian children and to promote the stability and security 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., § 1902. See also Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 32, 109 S.Ct. 1597, 1599-1600, 104 L.Ed.2d 29 (1989) ().
The applicability of the Indian Child Welfare Act to intra-family custody disputes is an issue of first impression in Minnesota. Courts in other states have decided this issue, although there is a split of authority among jurisdictions. The seminal case for the proposition that the Act does not apply to intra-family disputes is In re Bertelson, 617 P.2d 121 (Mont.1980).
In Bertelson, the mother of an Indian child gave custody of her child to the paternal grandparents, who were both enrolled members of an Indian tribe. When the mother sought to regain custody, the grandparents refused. The Montana Supreme Court held this dispute did not fall within the ambit of the Indian Child Welfare Act stati...
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