In re R.S.

• Decision Date: 26 October 2011
• Docket Number: No. A10–1390.,A10–1390.
• Citation: 805 N.W.2d 44
• Parties: In the Matter of the WELFARE OF the Child of R.S. and L.S., Parents.
• Court: Minnesota Supreme Court

805 N.W.2d 44

In the Matter of the WELFARE OF the Child of R.S. and L.S., Parents.

No. A10–1390.

Supreme Court of Minnesota.

Oct. 26, 2011.

Syllabus by the Court

1.The plain language of 25 U.S.C. § 1911(b)(2006) is not ambiguous and, with respect to an Indian child not residing or domiciled within the child's tribe's reservation, permits transfer to tribal court of only foster care placement and termination of parental rights proceedings.

2.The provision of the 2007 Tribal/State Agreement requiring transfer of “any child placement/custody proceedings” is void to the extent that it purports to require transfer of preadoptive and adoptive placement proceedings involving an Indian child not residing or domiciled on the reservation of the child's tribe.

3.With respect to an Indian child not residing or domiciled on the child's tribe's reservation, Rule 48 of the Minnesota Rules of Juvenile Protection Procedure, providing for transfer of “the juvenile protection matter” to the tribal court of an Indian child's tribe, is limited to foster care placement and termination of parental rights proceedings.

Mark D. Fiddler, Fiddler Law Office, P.A., Minneapolis, MN, for appellantguardian ad litem.

Brett A. Corson, Fillmore County Attorney, Lee Novotny, Assistant Fillmore

County Attorney, Preston, MN, for respondentFillmore County.

Marc A. Al, Stoel Rives LLP, Minneapolis, MN; and Rebecca J. McConkey, White Earth Band of Ojibwe, White Earth, MN; and Heidi A. Drobnick, Swanson, Drobnick & Tousey, P.C., Woodbury, MN, for respondent White Earth Band of Ojibwe.Lori Swanson, Attorney General, Cynthia B. Jahnke, Assistant Attorney General, St. Paul, MN, for amicus curiaeCommissioner of the Minnesota Department of Human Services.Bruce Jones, Jennifer Dukart, Faegre & Benson, LLP, Minneapolis, MN; and Shannon Smith, Minneapolis, MN, for amicus curiaeICWA Law Center.Matthew L.M. Fletcher, Kathryn E. Fort, East Lansing, Michigan, Heidi Bogda, Cass Lake, MN, Barbara Cole, Onamia, MN, for amici curiae Indigenous Law and Policy Center, Leech Lake Band of Ojibwe, and Mille Lacs Band of Ojibwe.Kurt V. BlueDog, Jessica L.K. Ryan, BlueDog, Paulson & Small, P.L.L.P., Minneapolis, MN, for amici curiae Shakopee Mdewakanton Sioux Community, Grand Portage Band of Chippewa, Upper Sioux Community, Lower Sioux Indian Community, and Prairie Island Indian Community.

OPINION

MEYER, Justice.

After parental rights to an Indian child living in Fillmore County were involuntarily terminated, the White Earth Band of Ojibwe (the Band) petitioned for transfer of the ensuing preadoptive placement proceedings to its tribal court.The district court granted the Band's motion and the court of appeals affirmed.Because we conclude that transfer of preadoptive proceedings to tribal court is not authorized by federal or state law, we reverse.

The subject of these proceedings is the sixth child of R.S. and L.S. L.S. is an enrolled member of the White Earth Band of Ojibwe; the district court record describes R.S. as Caucasian rather than Native American.The couple's five older children have been removed from parental care.Parental rights to the oldest child were involuntarily terminated in 1990; parental rights with respect to another child were permanently suspended by the White Earth Tribal Court in January 2010 in a case transferred from a district court in Iowa.Three of the couple's children remain in the custody of the Iowa Department of Human Services.Nothing in the record before us indicates that, at any time pertinent to these proceedings, either parent resided or was domiciled on the White Earth reservation.SeeMiss. Band of Choctaw Indians v. Holyfield,490 U.S. 30, 48, 109 S.Ct. 1597, 104 L.Ed.2d 29(1989)(domicile of a minor child is determined by that of the child's parents).

In February 2010, Fillmore County petitioned the Fillmore County District Court under Minn.Stat. § 260C.301, subd. 1(b)(4)(2010) for termination of parental rights with respect to the couple's sixth child.Under subdivision 1 (b)(4) of section 260C.301, a termination of parental rights for palpable unfitness is presumed if a parent's rights to another child have been involuntarily terminated.Seeid.The child was removed from parental custody and placed in third-party foster care; a guardian ad litem, who is the appellant here, was appointed for the child.

Fillmore County gave the White Earth Band of Ojibwe notice of the petition for termination of parental rights, as required by the Indian Child Welfare Act (ICWA), 25 U.S.C. § 1912(a)(2006).In awarding the County temporary custody of the child, the district court indicated that if the White Earth Tribal Court assumed jurisdiction of the matter before the admit/deny hearing on the County's petition, the district court matter would be dismissed.On February 22, 2010, the Band intervened in the proceedings but asked the district court not to transfer the case“at this point in the proceedings.”

After a court trial in April 2010, at which a representative of the Band testified, the district court terminated parental rights with respect to the child on grounds of palpable unfitness, seeMinn.Stat. § 260C.301, subd. 1(b)(4), and ordered that the child be placed with Fillmore County for preadoption proceedings.

About six weeks later, the Band moved to transfer jurisdiction of the preadoptive placement proceeding to its tribal court.The district court granted the Band's motion, over the objections of the guardian ad litem, under 25 U.S.C. § 1911(b)(2006).¹The court held that although transfer of the preadoptive proceedings was not authorized under a literal reading of ICWA, Congress nevertheless intended to allow transfer in this situation because ICWA“as a whole” was intended to curtail state authority over Indian child custody matters.The court further held that a 2007 Tribal/State Agreement between the Minnesota Department of Human Services and 11 Minnesota tribes (including the Band), although not expanding the jurisdiction established by ICWA, supported the conclusion that the State and the Band had concurrent jurisdiction over the preadoptive proceedings.Finally, the court concluded that the guardian ad litem had not established by clear and convincing evidence that there was good cause, within the meaning of 25 U.S.C. § 1911(b), to deny transfer to the tribal court.

On the appeal of the guardian ad litem, the court of appeals affirmed but on different grounds.In re Welfare of the Child of R.S. and L.S.,793 N.W.2d 752, 761(Minn.App.2011).The court of appeals held that ICWA neither requires nor prohibits transfer of preadoptive proceedings to tribal court, leaving the question to state sources of law.Id. at 759.The appellate court further held that transfer of jurisdiction over the preadoptive placement proceeding was a procedural matter, not a matter of substantive law, and therefore the Minnesota Rules of Juvenile Protection Procedure controlled over any conflicting statute.793 N.W.2d at 761.The appellate court transferred the matter to the White Earth Tribal Court under Minn. R. Juv. Prot. P. 48.01, subd. 3, which provides in pertinent part: “Upon motion or request of an Indian child's parent, Indian custodian, or tribe pursuant to subdivision 1[of Rule 48.01], the court shall issue an order transferring the juvenile protection matter to the Indian child's tribe absent objection by either parent ... or a finding of good cause to deny transfer....”793 N.W.2d at 760.

We granted the guardian ad litem's petition for review.We review the lower courts' construction and application of rules of procedure de novo.SeeShamrock Dev., Inc. v. Smith,754 N.W.2d 377, 382(Minn.2008)(civil procedure);State v. Dahlin,753 N.W.2d 300, 305(Minn.2008)(criminal procedure);In re GlaxoSmithKline PLC,699 N.W.2d 749, 753(Minn.2005)(civil appellate procedure).We similarly review de novo the lower courts' interpretation of statutes.Imperial Developers, Inc. v. Calhoun Dev., LLC,790 N.W.2d 146, 148(Minn.2010).

I.

Under the Supremacy Clause, U.S. Const. art. VI, § 2, the decision to transfer jurisdiction of these preadoptive placement proceedings to the tribal court must meet the minimum requirements of the Indian Child Welfare Act (ICWA), 25 U.S.C. §§ 1901–1963(2006).

Congress enacted ICWA in 1978 to address the “rising concern ... over the consequences ... of abusive child welfare practices that resulted in the separation of large numbers of Indian children from their families and tribes through adoption or foster care placement, usually in non-Indian homes.”Holyfield,490 U.S. at 32, 109 S.Ct. 1597.In 25 U.S.C. § 1911(a), Congress granted the tribal court“jurisdiction exclusive as to any State over any child custody proceeding involving an Indian child who resides or is domiciled within the reservation of such tribe” or who is a ward of the tribe.(Emphasis added.)Therefore, with respect to an Indian child who resides within or is domiciled within the child's tribe's reservation, state courts have no jurisdiction over any child custody proceeding.

With respect to an Indian child who does not reside and is not domiciled within the reservation of his or her tribe, ICWA establishes “minimum Federal standards” for proceedings in state courts.25 U.S.C. § 1902.Those minimum standards require, for example, that the child's tribe be given notice of the proceedings, id.§ 1912(a); that the child's tribe have the right to intervene, id.§ 1911(c); and that the parents of the Indian child, if indigent, have the right to court-appointed counsel, id.§ 1912(b).

However, these minimum procedural standards differ depending on the particular type of proceeding at issue.For example, 25 U.S.C. § 1912(a) requires that the child's tribe be given notice of proceedings in two of the four defined types of child custody proceedings: foster care placement and termination of parental rights.See25...