In re , A17-1194

• Decision Date: 16 May 2018
• Docket Number: A17-1194
• Citation: 911 N.W.2d 821
• Parties: In the MATTER OF the WELFARE OF the Children of: S.R.K. and O.A.K., Parents.
• Court: Minnesota Supreme Court

911 N.W.2d 821

In the MATTER OF the WELFARE OF the Children of: S.R.K. and O.A.K., Parents.

A17-1194

Supreme Court of Minnesota.

Filed: May 16, 2018

Brian P. Toay, Wold Johnson, P.C., Fargo, North Dakota, for appellants.

Brian J. Melton, Clay County Attorney, Steven E. Beitelspacher, Assistant Clay County Attorney, Moorhead, Minnesota, for respondent.

OPINION

LILLEHAUG, Justice.

In April 2016, Clay County Social Services filed petitions to terminate the parental rights of S.R.K. and O.A.K. Following a trial governed by the Indian Child Welfare Act (ICWA) and the Minnesota Indian Family Preservation Act (MIFPA), the district court terminated parental rights. We granted review to determine what evidence is required by ICWA and MIFPA for a district court to terminate parental rights, and whether the district court properly determined that the evidence was sufficient here. Because ICWA and MIFPA require qualified expert witness testimony to support the court's determination that "continued custody of the child by the parent ... is likely to result in serious emotional or physical damage to the child," 25 U.S.C. § 1912(f) (2012), we affirm the court of appeals in part and reverse in part.

FACTS

Appellants S.R.K. and O.A.K. ("the parents") married in July 2012 and divorced in December 2016. S.R.K. ("the mother") is the biological mother of 5 children—M.G.B., A.B., L.B., K.K., and A.K.K. She is an enrolled member of Spirit Lake Nation ("the Tribe"), and her children are all enrolled members or eligible for membership in the Tribe. O.A.K. ("the father") is the father of three of those children—L.B., K.K., and A.K.K.—and is not a member of any Indian tribe.

Respondent Clay County Social Services (CCSS) has been involved with the parents for several years, responding to verbal domestic incidents, drug and alcohol use, chronic homelessness and instability, and alleged criminal activity. This case began in June 2015, after CCSS received a report from Prairie St. Johns, a psychiatric hospital, that hospital staff were unable to reach the mother to plan for her eldest child's discharge from the hospital. A social worker was assigned to the case. One month later, the children were removed from the home following a violent incident, witnessed by the eldest child, that resulted in the mother being hospitalized with a stab wound

.¹ The children were placed in emergency foster care, and CCSS brought CHIPS petitions seeking out-of-home placement for the children.²

In December 2015, the district court found the children to be in need of protection or services, granted legal custody of the children to CCSS, and ordered out-of-home placement. Three court-ordered case plans were prepared for the parents, "each with the primary goal of reunification." Under these plans, the parents were ordered to complete chemical dependency and parental capacity evaluations, follow all recommendations from these evaluations, maintain sobriety, attend all scheduled visits with the children, participate in services for the children, have safe interactions with the children, and remain law abiding. The father was additionally required to establish safe and stable housing, follow probation guidelines, and put his children's needs first. The mother was additionally required to establish stable housing and ensure that only "safe, sober adults" interacted with her children. The court found that these plans were "designed to address chronic issues related to chemical dependency, domestic violence, chaos, instability and mental health issues."

In April 2016, CCSS filed three permanency petitions seeking to terminate the parental rights of mother and father.³ The petitions raised three grounds for termination: (1) "that the parent has substantially, continuously, or repeatedly refused or neglected to comply with the duties imposed upon that parent by the parent and child relationship," Minn. Stat. § 260C.301, subd. 1(b)(2) (2016) ; (2)"that following the child's placement out of the home, reasonable efforts, under the direction of the court, have failed to correct the conditions leading to the child's placement," id. , subd. 1(b)(5) (2016) ; and (3)"that the child is neglected and in foster care," id. , subd. 1(b)(8) (2016).

A 3-day trial was held in October and November 2016. Twelve people testified at the trial, including the parents, the guardian ad litem (GAL), the qualified expert witness (QEW), CCSS workers, the parental capacity evaluator, and an ICWA coordinator employed by Spirit Lake. Apart from the parents themselves, no one testified in favor of either parent retaining parental rights.

The ICWA coordinator testified that the mother "wasn't completing any of the services requested of her to obtain her children back," and that the Tribe supported termination. The GAL testified that the best interests of the children required permanency, the parents were unable to provide that permanency, and that she supported termination of parental rights.

Before trial, the QEW signed notarized affidavits stating that: (1) "It is in the children's best interests that they be granted permanency in a home approved by the Spirit Lake Tribe," (2) "The parent(s) have failed to adequately address the issues leading to the original CHIPS adjudication," (3) "Appropriate services were provided to the family to prevent the out-of-home placement," (4) "Continued custody of the children by the parent(s) is likely to result in serious physical and/or emotional damage to the child," and (5) "The Spirit Lake Tribe has determined that the child cannot be returned to the parent(s) and supports permanency for this child." The affidavits were admitted into evidence.

At trial, the QEW testified in favor of terminating parental rights. Then, when asked whether she had "an opinion about whether the children can be returned to the parents," she responded, "[n]o, I don't have an opinion about it." The QEW was then presented with her affidavits, and asked if "the opinions that are in [the affidavits] ... remain your opinions today?" She responded: "Yes." When pushed further, and asked whether the father was "honestly considered ... when [she] prepared the affidavits," she responded: "When I prepared the affidavit, no, because [the mother was] the enrolled member and [she's] the one that I looked at more." Based on this testimony, the district court found that the QEW "stands by the information in her [a]ffidavits.... [and] supports termination of parental rights."

In December 2016, the district court terminated the parental rights of both parents. The court first concluded that ICWA and MIFPA applied to the proceedings and that the laws' requirements had been satisfied. The court terminated the mother's parental rights because it concluded: (1) "[Mother] is palpably unfit to be a party to the parent and child relationship because of a consistent pattern of specific conduct ... of a duration or nature that renders [her] unable, for the reasonably foreseeable future, to care appropriately for the ongoing physical, mental, or emotional needs of the child"; (2) "active efforts ... have failed to correct the conditions leading to the [c]hildren's [out-of-home] placement"; (3) "the [c]hildren are neglected and in foster care"; and (4) "it is in the best interests of the [c]hildren." These same conclusions of law were made as the grounds to terminate the father's parental rights.

The parents appealed, and the court of appeals affirmed the district court in part, reversed in part, and remanded for additional findings. In re the Welfare of the Children of: S.R.K. & O.A.K. (S.R.K. I) , Nos. 14-JV-16-1365, 14-JV-16-1367, 14-JV-16-1371, 2017 WL 2062137, at *1 (Minn. App. May 15, 2017). As relevant to this appeal, the court held that the district court erred by failing to expressly find, under ICWA and MIFPA, that "continued custody of the child by the parent ... is likely to result in serious emotional or physical damage to the child," and it remanded for that finding. Id. at *4–5.

On remand, the district court issued a one-sentence addendum to its findings of fact and conclusions of law, stating that "[c]ontinued custody of [the children] ... by [the mother] and/or [the father] is likely to result in serious emotional or physical damage to the [c]hildren." The court provided no additional explanation.

The parents again appealed, arguing that "the evidence does not support beyond a reasonable doubt the district court's finding that [the parents'] continued custody of the children is likely to result in serious emotional or physical damage to the children." In re the Welfare of the Children of: S.R.K. & O.A.K. (S.R.K. II) , Nos. 14-JV-16-1365, 14-JV-16-1367, 14-JV-16-1371, 2017 WL 6273152, at *1 (Minn. App. Dec. 11, 2017). The court of appeals first addressed what ICWA and MIFPA require from a QEW to make the determination regarding the likelihood of serious emotional or physical damage to the children, noting that "[a] court need not rely solely on the testimony of the qualified expert witness." Id. at *2. Because the court deferred to the district court's finding that the QEW "affirmed her affidavit" during her testimony, it was satisfied that "evidence beyond a reasonable doubt support[ed] the district court's finding that the parents' continued custody of the children [would] likely ... result in serious emotional or physical damage to the children." Id. at *2–3. Accordingly, the court affirmed the district court's termination decision.⁴ Id. at *4.

We granted the parents' petition for review.

ANALYSIS

I.

The issue presented here is one of first impression for us: what evidentiary showing is required by ICWA and MIFPA for a district court to terminate parental rights in a proceeding under those statutes?

This question requires us to interpret provisions of ICWA and MIFPA. Statutory interpretation is a question of law that we review de novo. In re Welfare of R.S. , 805 N.W.2d 44, 49 (Minn. 2011). "The first step in...