Dahl v. K.B. (In re Interest of K.B.), 20210109

• Court: United States State Supreme Court of North Dakota
• Writing for the Court: Tufte, Justice.
• Citation: 961 N.W.2d 293
• Parties: In the INTEREST OF K.B., a child Megan Dahl, L.B.S.W., Cass County Human Services Zone, Petitioner and Appellee v. K.B., child; M.N., possible father; John Doe, Respondents and J.B., mother, Respondent and Appellant In the Interest of K.B., a child Megan Dahl, L.B.S.W., Cass County Human Services Zone, Petitioner and Appellee v. K.E.B., child; M.N., possible father; John Doe, Respondents and J.B., mother, Respondent and Appellant
• Docket Number: No. 20210109, No. 20210110,20210109
• Decision Date: 24 June 2021

961 N.W.2d 293

In the INTEREST OF K.B., a child

Megan Dahl, L.B.S.W., Cass County Human Services Zone, Petitioner and Appellee
v.
K.B., child; M.N., possible father; John Doe, Respondents
and
J.B., mother, Respondent and Appellant

In the Interest of K.B., a child

Megan Dahl, L.B.S.W., Cass County Human Services Zone, Petitioner and Appellee
v.
K.E.B., child; M.N., possible father; John Doe, Respondents
and
J.B., mother, Respondent and Appellant

No. 20210109
No. 20210110

Supreme Court of North Dakota.

FILED JUNE 24, 2021

Constance L. Cleveland, Assistant State's Attorney, Fargo, N.D., for petitioner and appellee; submitted on brief.

Daniel E. Gast, Fargo, N.D., for respondent and appellant; submitted on brief.

Tufte, Justice.

¶1] J.B. appeals a juvenile court order terminating her parental rights. On appeal, J.B. argues that the district court erred in terminating her parental rights, because the qualified expert witness's testimony did not satisfy the Indian Child Welfare Act (ICWA). We retain jurisdiction and remand for further proceedings.

I

[¶2] J.B. is the mother of two children, K.B. and K.E.B. A social services assessment was prompted by reports that K.B. had tested positive for methamphetamines at birth and had a low birth weight and that J.B. had not attended any follow-up medical appointments after K.B.’s birth. K.B. was placed into social services custody in November of 2019 for up to 9 months after J.B. admitted that K.B. was a deprived child. Prior to K.B.’s removal, J.B. had visited with a social worker and admitted to a relapse in drug use. The social worker noticed that J.B. had a black eye and bruising during this visit, and J.B. told her she had been attacked by M.N., the possible father of K.B. While K.B. was removed from J.B.’s custody, J.B. gave birth to K.E.B. During her pregnancy, J.B. was using drugs, did not engage in treatment, and did not follow up with prenatal care as advised by her doctor at her initial prenatal appointment. Social services took custody of K.E.B. at birth, and she also tested positive for methamphetamines. During this period, J.B. had her probation revoked and was sentenced to incarceration through May of 2022 with her first consideration for parole in May 2021. Both children are eligible to be enrolled in the Turtle Mountain Band of Chippewa.

[¶3] The juvenile court received testimony from Marilyn Poitra, a qualified expert witness under ICWA. Poitra testified that the tribe could exercise jurisdiction over this action and did not support termination, but the tribe did not wish to exercise its jurisdiction. Poitra further testified about the tribe's customs as they relate to family organization and acceptable child rearing practices, concluding that J.B.’s conduct was not consistent with those practices. Poitra testified that termination was not necessary at that time to prevent physical damage to the children, based on her belief that J.B. would no longer be incarcerated as of May of 2021 and that J.B. was not having contact with M.N.

II

[¶4] The juvenile court may terminate an individual's parental rights to a child if: (1) the child is a deprived child; (2) the conditions and causes of the deprivation are likely to continue; and (3) the child is suffering or will in the future probably suffer serious physical, mental, moral, or emotional harm. In re K.S.D. , 2017 ND 289, ¶ 7, 904 N.W.2d 479 (citing N.D.C.C. § 27-20-44(1)(c)(1) ). The party seeking termination of parental rights must prove all

[961 N.W.2d 296

elements by clear and convincing evidence. Id. In addition to state law requirements, the requirements of the Indian Child Welfare Act, 25 U.S.C. § 1912, must be met in cases involving an Indian child as defined by the Act. 25 U.S.C. § 1903(4) ; In re K.S.D. , at ¶ 17.

No termination of parental rights may be ordered in such proceeding in the absence of a determination, supported by evidence beyond a reasonable doubt, 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(f).

¶5] On appeal, J.B.’s only argument is that the juvenile court erred in terminating her parental rights because the testimony of the qualified expert witness was insufficient to satisfy the requirements of ICWA. J.B. does not dispute there was clear and convincing evidence that the children were deprived, that the causes of the deprivation are likely to continue, and that the children are suffering, or will in the future probably suffer, serious physical, mental, moral or emotional harm.

[¶6] We apply the clearly erroneous standard of review to the juvenile court's findings. Interest of A.L.E. , 2018 ND 257, ¶ 4, 920 N.W.2d 461 (citing Interest of A.B. , 2017 ND 178, ¶ 12, 898 N.W.2d 676 ). Under the clearly erroneous standard of review, we affirm the decision of the juvenile court unless it is induced by an erroneous view of the law, there is no evidence to support it, or, on the entire record, we are left with a definite and firm conviction a mistake has been made. Id.

[¶7] ICWA requires the court's determination be supported by evidence beyond a reasonable doubt, including the testimony of a qualified expert witness, that continued custody by the parent is likely to result in serious emotional or physical damage to the child. J.B. argues that Poitra's testimony does not satisfy ICWA's requirements because she testified that termination would result in serious emotional damage to the children and that there would not be any physical damage to the children if the court did not terminate parental rights at that time. "The findings of a likelihood of serious emotional or physical damage are findings that must be made by the trial judge, not the expert witness." Marcia V. v. Office of Children's Servs. , 201 P.3d 496, 508 (Alaska 2009). In addition to extensive testimony about ancillary facts, Poitra answered two questions asking her to summarize her opinion relating to this ICWA requirement. Initially, on direct examination, Poitra was asked "is custody of the children K.E.B. and K.B. by the parents likely to cause serious emotional or physical damage to the children?" Poitra responded, "I believe that because mom's incarcerated, she can't care for her children." After an interruption, she continued, "I believe it would have been a different situation if she wasn't incarcerated." Later, on cross examination, Poitra confirmed she believed "there wouldn't be any damage to the children if the Court does not terminate at this time." The first question was framed in terms of ICWA, focusing on whether "continued custody of the child by the parent" is likely to result in damage to the child. The second focused on the current custody and placement, in which the children are not in J.B.’s custody, and whether Poitra believes harm will come to the children if the current arrangement continues.

[¶8] Poitra testified that she believed J.B. would be released in May of 2021. On further questioning, Poitra acknowledged she was not aware that J.B.’s good time release date was not until May

[961 N.W.2d 297

of 2022. "When a parent, through voluntary actions, without reasonable justification, makes herself unavailable to care for and parent a young child, the child should not be expected to wait or assume the risk involved in waiting for permanency and stability in her life." A.L.E. , 2018 ND 257, ¶ 12, 920 N.W.2d 461 (citations omitted).

¶9] Poitra also testified that if J.B. continued her relationship with M.N., she would be concerned that the domestic violence and drug use would continue. After Poitra testified, the juvenile court received into evidence screenshots of notes being shared back and forth between J.B. and M.N. These screenshots were taken during a recess in the proceedings when J.B. and M.N. were communicating through the videoconferencing software by holding up handwritten notes, apparently unaware that all attendees could see their messages. J.B. stated to M.N. that she loved him and still wanted a son, and asked for his contact information. M.N. told J.B. there was a no-contact order, but then provided his email address anyway and told J.B. he was thinking about her.

[¶10] The juvenile court found that the evidence presented did not support either of the assumptions relied on by Poitra as the basis for opposition to the termination of J.B.’s parental rights. Specifically, the court found J.B.’s release from prison and availability to parent was not imminent and J.B. had not ended her relationship with M.N. The court found that the best case scenario for reunification was...