In re Welfare of T.T.B., No. A05-1615.
| Decision Date | 19 October 2006 |
| Docket Number | No. A05-1631.,No. A05-1615. |
| Citation | 724 N.W.2d 300 |
| Parties | In the Matter of the WELFARE OF the Child of T.T.B. and G.W., Parents. |
| Court | Minnesota Supreme Court |
Amy J. Klobuchar, Hennephin County Atty., Mary M. Lynch, Asst. Atty., Minneapolis, for appellant Hennepin Cty. H.S.P.H.D Jonathan G. Steinberg, Minneapolis, for appellant Guardian Ad Litem.
Thomas James Vollbrecht, Guy-Uriel E. Charles, Faeger & Benson, L.L.P., Minneapolis, for respondent Yanton Sioux Tribe.
Jacqueline Marie Beaulieu, Catherine LaRoque, Minneapolis, for respondent T.T.B.
Jonathan G. Steinberg, Chrastil and Steinberg, P.L.L.P., Minneapolis, fro respondent G.A.L.
Leonard Castro, Chief, Fourth Judicial Public Defender, Peter W. Gorman, Asst. Public Defender, Minneapolis, for respondent G.W.
Faegre & Benson, L.L.P., Minneapolis, for respondent Guy-Uriel E. Charles.
Janine LePage, Asst. County Atty, Brainerd, for amicus curiae Minnesota County Atty's Ass'n.
Mark D. Fiddler, Fiddler Law Office, Minneapolis, for amicus curiae Nat. Ass'n of Counsel for Children.
Marc C. Tilden, Native American Rights Fund, Boulder, CO, for amicus curiae Nat. Indian Child Welfare Ass'n.
Joseph F. Holloran, Jacobson, Buffalo, Schoessler & Magnuson, Ltd., St. Paul, for amici curiae Bois Forte Band of Chippewa, General Portage Band of Chippewa, White Earth Band of Chippewa, Upper Sioux Indian Community and Prairie Island Indian Community.
Heard, considered, and decided by the court en banc.
This appeal arises from a juvenile protection matter concerning custody of an Indian child. Under both the Indian Child Welfare Act, 25 U.S.C. §§ 1901-1963 (2000) (ICWA), and the Minnesota Indian Family Preservation Act, Minn.Stat. §§ 260.751-.835 (2004), proceedings involving custody of an Indian child who does not reside on and is not domiciled on the reservation must be transferred to the jurisdiction of the tribe upon proper request and "in the absence of good cause to the contrary." 25 U.S.C. § 1911(b) (2000); Minn.Stat. § 260.771, subd. 3 (2004). The district court in this case concluded there was good cause under ICWA and Minnesota law to deny the transfer of jurisdiction to the tribal court. On appeal, the court of appeals reversed and remanded the matter with instructions to transfer jurisdiction. We reverse and reinstate the district court order.
In April 2003, Hennepin County filed a petition to terminate parental rights or transfer permanent legal and physical custody of A.G., an infant, from respondent mother, T.T.B., and father, M.G. T.T.B. did not appear at the scheduled November 10, 2003, pretrial hearing on this petition and was found in default. On November 15, 2003, T.T.B. gave birth to a son, X.T.B., in Rhode Island. In October 2003, prior to the child's birth, T.T.B. and respondent G.W., who is described in the proceedings below as the father of X.T.B., had traveled from Minnesota to the Rhode Island home of A.G.M.1 Upon learning of the open custody proceeding involving A.G. in Minnesota, Rhode Island took X.T.B. into protective custody on November 19, 2003.
On November 21, 2003, Hennepin County filed an amended petition in A.G.'s case, adding X.T.B. to the petition. The amended petition sought to terminate T.T.B.'s parental rights to X.T.B., or to transfer permanent legal and physical custody of X.T.B. The same day, the county moved ex parte to have X.T.B. placed in protective care. The district court, acting under Minn.Stat. § 260C.175, subd. 1 (2004), ordered X.T.B. taken into custody under Minn.Stat. § 260C.151, subd. 6 (2004), and under Minn. R. Juv. Prot. P. 28.02.2 X.T.B. was returned to Minnesota from Rhode Island on or about December 22, 2003, and was placed with his half-sister, A.G., in the home of S.G., A.G.'s paternal grandmother.3
At the emergency protective care hearing on December 23, 2003, the district court found the county had made the prima facie showing required under Minn. R. Juv. Prot. P. 30.08, to continue protective care of X.T.B., and the court transferred interim legal custody of X.T.B. to the county. On December 31, 2003, the county filed a separate petition seeking to terminate parental rights or transfer permanent legal and physical custody of X.T.B., and X.T.B. was dismissed from the case involving his half-sister, A.G. T.T.B. was served with the county's petition to terminate parental rights or to transfer permanent legal and physical custody of X.T.B. on January 9, 2004.
T.T.B. is a member of the Oglala Sioux Tribe, G.W. is a member of the Yankton Sioux Tribe, and X.T.B. was declared by both tribes to be eligible for membership. Both tribes received notice of the proceedings by registered mail on January 16, 2004. In addition, a representative of the county conferred with each of the tribes before placing X.T.B. in the home of S.G.
On February 17, 2004, T.T.B. and G.W. appeared in court for an admit/deny hearing, although the record does not reflect when, or if, G.W. was formally served with the petition to terminate parental rights or transfer permanent custody. At that hearing, a denial was entered on T.T.B.'s behalf, but because G.W. had only recently been appointed counsel, an admit/deny hearing on his behalf was continued to April 20, 2004.
At the continued admit/deny hearing on April 20, 2004, T.T.B.'s counsel told the court that mother favored transfer of custody to A.G.M. in Rhode Island. Counsel for G.W. indicated that G.W.'s mother, B.W., was "interested in being a foster care provider, slash, possible permanency placement" for X.T.B. Again no formal denial was entered on behalf of G.W., but the district court set a pretrial hearing for June 10, 2004, and a trial date of July 22 2004, for the termination of parental rights and permanent placement. On April 30, 2004, the Yankton Sioux Tribe moved to intervene and participate in the proceedings, indicating by affidavit filed on May 26, 2004, that it was in the best interests of X.T.B. to be granted permanency "in a home approved by" the tribe.
A family group conference addressing the permanent placement of X.T.B. was held on June 4, 2004, but after considerable discussion, the participants could not reach a consensus. T.T.B. and G.W. favored transfer of custody of X.T.B. to A.G.M. in Rhode Island or, alternatively, transfer of custody to G.W. In addition, S.G., the paternal grandmother of X.T.B.'s half-sister, A.G., sought to adopt X.T.B.4
Following the family group conference, the district court set deadlines of July 8, 2004, for the exchange of witness and exhibit lists; July 15, 2004, for filing pretrial motions; and July 22, 2004, for the permanency trial. When the schedule proved problematic for G.W.'s counsel, the district court extended the deadline for filing witness and exhibit lists and pretrial motions to July 22, 2004, and postponed the trial to a date to be agreed upon. The court indicated the delay would likely be a matter of "several weeks."
On July 16, 2004, the county filed an amended petition for the termination of parental rights or transfer of custody that added G.W.'s address and tribal affiliation, added procedural history since the filing of the initial petition in December 2003, and added further grounds for termination of parental rights with respect to both T.T.B. and G.W. On July 21, 2004, G.W. moved for dismissal, claiming the court lacked jurisdiction and disputing grounds for termination of his parental rights. At the same time, G.W. moved to transfer custody of X.T.B. to A.G.M. in Rhode Island. In support of his motion, G.W. filed an affidavit from the Yankton Sioux Tribe's ICWA director, advocating transfer of custody to A.G.M.
The next day, July 22, 2004, T.T.B. and G.W. moved to transfer jurisdiction of the proceedings to the Yankton Sioux Tribal Court. Later the same day, the district court issued orders setting a hearing on the various pretrial motions for August 12, 2004, an evidentiary hearing on October 5, 2004, and a permanency trial date of October 27, 2004. During the August 12, 2004 hearing, the court denied G.W.'s motion to dismiss, but deferred its ruling on the motion to transfer jurisdiction to allow the Yankton Sioux tribe additional time to file a written acceptance of jurisdiction. Also during the August 12 hearing, the county indicated it would no longer seek termination of parental rights and instead would pursue only permanent placement of X.T.B.
In connection with the potential placement of X.T.B. with A.G.M., Rhode Island conducted a home study under the Interstate Compact on the Placement of Children. The Interstate Compact obligates the receiving state to determine whether placement is suitable, and bars physical transfer of the child until authorities in the receiving state notify the sending agency that the proposed placement does not appear to be contrary to the interests of the child. Minn.Stat. § 260.851 (2004). By written report dated August 5, 2004, Rhode Island recommended against placement of X.T.B. with A.G.M. in Rhode Island. Rhode Island's decision effectively barred the district court from transferring custody of X.T.B. to A.G.M. for either temporary placement purposes or adoption.5 See id.
On September 24, 2004, the Yankton Sioux Tribe moved to transfer jurisdiction to its tribal court. The motions to transfer jurisdiction came on for hearing on October 5, 2004. The district court notified the parties by telephone on October 15, 2004, that the motions to transfer jurisdiction were denied. The written order, dated October 27, 2004, cited as grounds for denying transfer that the requests came at an advanced stage of the proceedings. The matter proceeded to trial on stipulated facts; and by order filed on February 17, 2005, legal and physical custody of X.T.B. was transferred to S.G., with whom he had resided since December 23, 2003. The order provided for reasonable...
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