In re K. M.-A. R.-L., A21-1660

CourtCourt of Appeals of Minnesota
Writing for the CourtREILLY, JUDGE
PartiesIn the Matter of the Welfare of the Child of: K. M.-A. R.-L. and P. S. K., Commissioner of Human Services, Legal Custodian.
Docket NumberA21-1660
Decision Date13 June 2022

In the Matter of the Welfare of the Child of: K. M.-A. R.-L. and P. S. K., Commissioner of Human Services, Legal Custodian.

No. A21-1660

Court of Appeals of Minnesota

June 13, 2022


This opinion is nonprecedential except as provided by Minn. R. Civ. App. P. 136.01, subd. 1(c).

Olmsted County District Court File No. 55-JV-20-3333

Jennifer M. Shabel, Grinde & Dicke Law Firm P.A., Rochester, Minnesota (for appellants T.E. and K.E.)

Mark D. Fiddler, Delmar Flynn, Fiddler Osband, LLC, Edina, Minnesota; and Steven K. Murakami, Murakami Law Firm, LLC, Rochester, Minnesota (for respondent mother K. M.-A. R.-L.)

Mark Ostrem, Olmsted County Attorney, Debra A. Groehler, Senior Assistant County Attorney, Rochester, Minnesota (for respondent Olmsted County Health, Housing, and Human Services)

P.S.K., Rochester, Minnesota (pro se respondent father)

Nizhoni Smith, Morton, Minnesota (for respondent Penny Scheffler, tribal representative for Lower Sioux Indian Community)

Kim Ruckdaschel-Haley, Best & Flanagan LLP, Minneapolis, Minnesota (for respondent Lower Sioux Indian Community)

C.L. and S.L., Rochester, Minnesota (pro se respondent foster parents) Karen Haugerud, Preston, Minnesota (guardian ad litem)

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Considered and decided by Reilly, Presiding Judge; Worke, Judge; and Frisch, Judge.

REILLY, JUDGE

In this juvenile-protection appeal, appellants challenge the district court's denial of their motion seeking adoptive placement of an Indian child and asserting that the county was unreasonable in failing to make the requested adoptive placement. Appellants argue that the district court erred by denying their motion without an evidentiary hearing and that, in reaching its decision, the district court misapplied the Indian Child Welfare Act (ICWA) and the Minnesota Indian Family Preservation Act (MIFPA) in two ways: (1) by failing to recognize appellants as relatives of the child and failing to give them preference as the adoptive placement, and (2) by determining that there was good cause to deviate from the adoptive placement preferences in ICWA and MIFPA. Because we conclude that the district court did not misapply ICWA or MIFPA, and it did not otherwise abuse its discretion when it denied appellants' motion, we affirm.

FACTS

Respondents K.M.-A.R.-L. (mother) and P.S.K. (father) are the biological parents of A.G.K. (the child), born in March 2019. Mother and father were never married to each other, and father signed a recognition of parentage after the child was born. Mother has four other children, none of whom reside with her. When the child was born, both mother and the child tested positive for methamphetamine. The child stayed in the neonatal intensive care unit after her birth because of feeding complications and respiratory distress.

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CHIPS Proceeding and Foster Care Placement

Respondent Olmsted County Health, Housing, and Human Services (the county) received a report about the drug-test results for mother and the child. The county held a rapid case-planning conference to identify a viable safety plan option that would allow the child to be discharged from the hospital into the care of family members. Because the parents could not identify a placement option that satisfied the county's safety concerns, mother signed a voluntary placement agreement, which allowed the child to be placed in foster care. The child was discharged from the hospital on April 6, 2019, and placed in a foster-care home.

Shortly afterward, the county learned that mother's father (who is deceased) was a member of the Lower Sioux Indian Community (Lower Sioux). Mother did not disclose this information to the county at first because she did not want the tribe involved. Mother is not a member of Lower Sioux. Father does not have any Native American heritage and is not affiliated with a tribe. After learning about mother's connection to Lower Sioux, a county social worker contacted the tribe to determine whether the child was eligible for membership in Lower Sioux. The county also directed the parents to sign another voluntary placement agreement in the presence of a judge to satisfy ICWA requirements. Lower Sioux informed the county that the child was eligible for enrollment in the tribe "as an adopted member by lineal descent."

On May 6, 2019, the child was placed in her current foster home with C.L. and S.L. (foster parents). Foster parents are non-Indian and are not relatives of the child. At the time, Lower Sioux supported the child's placement with foster parents. On May 30, 2019,

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the county filed a petition alleging that the child was in need of protection or services (CHIPS). The district court found the parents in default after father failed to appear at a July 2, 2019 hearing and mother left the courtroom in the middle of the hearing. The district court adjudicated the child in need of protection or services. Throughout these proceedings, the county remained in contact with Lower Sioux and kept the tribe informed about the child's health and safety.

Appellants' Initial Request for Adoptive Placement

While the CHIPS case was pending, the county searched for relatives who could potentially serve as an alternative permanency option if the child could not be returned to mother or father. In June 2019, the county notified appellant T.E. that he had been identified as a relative of the child. T.E. is related to father by marriage: T.E.'s sister was married to a cousin of father. T.E. and father had known each other from a young age and had had a close relationship for many years, but T.E. had distanced himself from father in recent years when father began using drugs regularly. T.E. is Cambodian, and his wife, appellant K.E., is a member of Sault Ste. Marie Tribe of Chippewa Indians. According to appellants, the concept of family "is more [fluid] in Cambodian culture, which also holds true with Native American culture." The county informed T.E. that, because he was a relative of the child, he had the right to be considered a temporary foster placement for the child and a possible permanency option. Appellants contacted the county and expressed interest in being considered a placement.

The county held a family group conference in August 2019 to determine alternative permanency options for the child. Mother's family identified foster parents as their

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preferred permanency option. Lower Sioux disagreed, stating that it preferred appellants as a permanency option instead.

At a review hearing on September 24, 2019, Lower Sioux requested that the child be placed in appellants' care. Mother objected and requested that the child remain with foster parents. The child's guardian ad litem also expressed concerns about moving the child to a different placement. The district court directed the county to begin a transition plan for the child to move into appellants' home. But a short time later, mother filed a motion seeking to prevent the change of placement. Mother argued that ICWA and MIFPA did not apply and that, even if they did, there was good cause to continue the child's placement with foster parents based on mother's preference.

After a hearing on mother's motion, the district court issued an order on November 27, 2019, granting mother's requested relief. The district court determined that ICWA and MIFPA applied and that the child is considered an Indian child because she is eligible for membership in Lower Sioux. Even so, the district court determined that mother had proven by clear and convincing evidence that there was good cause to deviate from the order of placement preferences. In determining that there was good cause, the district court cited the facts that mother had requested that the court deviate from the order of placement preferences and that the child had developed a strong bond with foster parents. As a result, the district court ordered that the child remain with foster parents rather than be placed with appellants. Foster parents later conveyed their interest in adopting the child.

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Termination of Parental Rights and Appellants' Motion to Intervene

Seven months later, in June 2020, the county filed a petition to terminate the parental rights of both mother and father (the TPR petition). The TPR petition sought termination of mother's parental rights based on her interest in consenting to adoption by foster parents, and the petition sought to terminate father's parental rights based on several grounds for involuntary termination or voluntary termination with father's written consent. The county provided notice to Lower Sioux of the TPR petition.

In July 2020, appellants filed a motion to intervene in the TPR matter and requested to be considered an adoptive placement for the child. Appellants asserted that their intervention was in the child's best interests because the child is an Indian child, appellants are extended family members of the child, and Lower Sioux supported them as the preferred placement for the child. The motion asked the district court to order the county to take appropriate action regarding their request for consideration as an adoptive placement.

In support of their motion, appellants submitted a declaration from a member of Lower Sioux, who offered a statement as a qualified expert witness under ICWA and MIFPA. The qualified expert witness reaffirmed Lower Sioux's previous statement that the child is an Indian child and eligible for enrollment in the tribe. The expert stated that, under the "fluidity and dynamic character of Indian extended families," Lower Sioux considered anyone "related by blood or marriage who maintains some form of significant contact with the child" to be a family member to an Indian child. The expert opined, "Given the significance and closeness of [T.E.'s] relationship with [father] and [father's]

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family, it is my expert opinion that [T.E.] and, consequently, his wife [K.E.]...

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