In re Welfare of SNR, C2-00-179.

• Decision Date: 01 September 2000
• Docket Number: No. C2-00-179.,C2-00-179.
• Citation: 617 N.W.2d 77
• Parties: In the Matter of the WELFARE OF S.N.R.
• Court: Minnesota Court of Appeals

617 N.W.2d 77

In the Matter of the WELFARE OF S.N.R.

No. C2-00-179.

Court of Appeals of Minnesota.

September 1, 2000.

Review Denied November 15, 2000.

Mark D. Fiddler, Vincent & Fiddler, P.L.C., Minneapolis, for appellant Carole Freeman.

Amy Klobuchar, Hennepin County Attorney, Nancy Jones, Assistant County Attorney, Minneapolis, for respondent Hennepin County Department of Children and Family Services.

Joseph Plumer, Michael Garbow, Cass Lake, for respondent Leech Lake Band of Ojibwe.

Candace Barr, Niemi & Barr, P.A., Minneapolis, for respondents Joseph & Theresa Myers. Sonia Miller-Van Oort, Faegre & Benson, L.L.P., Minneapolis, for Guardian Ad Litem.

Considered and decided by WILLIS, Presiding Judge, RANDALL, Judge, and PARKER, Judge.¹

OPINION

WILLIS, Judge

Appellant Carole Freeman argues that the juvenile court erred in concluding that the Indian Child Welfare Act, 25 U.S.C. §§ 1901-1963 (1994), is applicable to adoption proceedings involving S.N.R. and in granting summary judgment to respondent Hennepin County Department of Children and Family Services and dismissing Freeman's petition to adopt S.N.R. We affirm.

FACTS

S.N.R. was born in April 1993. Soon after her birth, respondent Hennepin County Department of Children and Family Services ("HCDCFS") placed S.N.R. in the licensed foster care of C.G., whose partner was appellant Carole Freeman. S.N.R.'s mother, who was an enrolled member of the Leech Lake band of the Minnesota Chippewa Tribe, died in 1997. In August 1997, S.N.R.'s father's parental rights were terminated, and the Commissioner of Human Services became her guardian and legal custodian. In early 1998, HCDCFS contracted with the Professional Association of Treatment Homes ("PATH") to conduct an adoption study to evaluate C.G. and Freeman's potential to serve as adoptive parents. The recommendation of the study was favorable. But in the spring of 1998, C.G. and Freeman's relationship deteriorated, the two separated, and S.N.R. remained with C.G. Freeman then obtained a license to serve as a foster-care provider, and in August 1998 HCDCFS placed S.N.R. in foster care with Freeman.

HCDCFS again contracted with PATH to conduct an adoption study, this time with Freeman as the sole potential adoptive parent. Before the issuance of the written report, which HCDCFS understood would be unfavorable to Freeman, HCDCFS decided that it would not approve adoption by Freeman. In January 1999, the juvenile court held hearings regarding HCDCFS's motion to remove S.N.R. from Freeman's care, place her temporarily in the care of her siblings' then-foster parents, and then place her with respondents Joseph and Theresa Myers, the siblings' prospective adoptive parents. The court ordered that S.N.R. remain in Freeman's care and that S.N.R. have monthly visits with her siblings.

In March 1999, Freeman petitioned to adopt S.N.R. In June 1999, Lillian Reese, the Director of Family Services of respondent Leech Lake Band of Ojibwe, notified Hennepin County that the band recognized S.N.R. and her siblings "as members of the Leech Lake Reservation." As a result of this notification, HCDCFS moved the juvenile court to find that the Indian Child Welfare Act, 25 U.S.C. §§ 1901-1963 (1994) ("ICWA"), was applicable to the proceedings. In July 1999, the band moved, under the ICWA, to intervene in the juvenile court proceedings. The Myerses moved to intervene in the proceedings and to be allowed to petition to adopt S.N.R.

The juvenile court heard the motions on August 6, 1999. The court granted the band's motion to intervene on a permissive basis, scheduled an evidentiary hearing on the issue of whether S.N.R. is in fact an "Indian child" within the meaning of the ICWA, and postponed consideration of the other motions.² Following a September 3, 1999, hearing, the court issued an order determining that all further adoption proceedings were subject to the ICWA, granting the band's motion to intervene as a matter of right, and granting the Myerses' motion to intervene and to be allowed to petition to adopt S.N.R.

In December 1999, HCDCFS moved for summary judgment, seeking dismissal of Freeman's petition to adopt S.N.R. On January 7, 2000, the juvenile court granted summary judgment for HCDCFS and dismissed Freeman's petition. Freeman appeals from the September 1999 and January 2000 orders.

ISSUES

1. Did the juvenile court err in concluding that a tribal determination that a child is eligible for membership in that tribe is conclusive evidence that the child is an "Indian child" under the ICWA?

2. Did the juvenile court err in granting summary judgment to HCDCFS and dismissing Freeman's petition to adopt S.N.R. because Freeman could not demonstrate good cause to deviate from the placement preferences established by the ICWA?

ANALYSIS

On appeal from summary judgment, this court must determine if there are any genuine issues of material fact and if the juvenile court erred in its application of the law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn.1990)

. We review the facts in the light most favorable to the party against whom summary judgment was granted. Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn.1993).

Freeman argues that the juvenile court erred in concluding that the Indian Child Welfare Act, 25 U.S.C. §§ 1901-1963 (1994) ("ICWA"), is applicable to adoption proceedings involving S.N.R. Freeman also argues that the court erred in granting summary judgment to HCDCFS and in dismissing Freeman's petition to adopt S.N.R. after concluding that Freeman could not meet the adoption requirements set forth by the ICWA. We review these conclusions in order.

I. Applicability of the ICWA.

Freeman argues that the juvenile court erred in concluding the ICWA is applicable to adoption proceedings involving S.N.R. To determine whether the ICWA is applicable,

[f]irst, it must be determined that the proceeding is a "child custody proceeding" as defined by the Act. Once it has been determined that the proceeding is a child custody proceeding, it must then be determined whether the child is an Indian child.

In re Paternity of J.A.V., 536 N.W.2d 896, 900 (Minn.App.1995) (quoting In re Appeal of Maricopa Juvenile Action No. A-25525, 136 Ariz. 528, 667 P.2d 228, 231 (1983)), aff'd 547 N.W.2d 374 (Minn.1996). The ICWA defines "child custody proceeding" to include adoptive placements. 25 U.S.C. § 1903(1)(iv) (1994). Thus, it is clear that the proceedings here are child-custody proceedings under the ICWA. Section 1903 of the ICWA defines "Indian child" as

any unmarried person who is under age eighteen and is either (a) a member of an Indian Tribe or (b) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe.

§ 1903(4).³ It is undisputed that S.N.R. is not currently a member of an "Indian tribe" and that her mother, T.R., was an enrolled member of the Leech Lake Band. Freeman challenges the juvenile court's conclusion that because the Leech Lake Band has determined that S.N.R. is eligible for band membership, and such determinations are conclusive evidence of eligibility under the ICWA, S.N.R. is an Indian child. We review this question of law de novo.

The Bureau of Indian Affairs has published guidelines to assist state courts in their implementation of the ICWA. See Guidelines for State Courts; Indian Child Custody Proceedings, 44 Fed.Reg. 67,584, 67,585 (1979) [hereinafter BIA Guidelines]. The BIA Guidelines provide that under the ICWA, "[t]he determination by a tribe that a child * * * is or is not eligible for membership in that tribe * * * is conclusive." 44 Fed.Reg. at 67,586 (§ B.1(b)(i)). While the BIA Guidelines are not binding on courts, unless Congress specifically invests the bureau with the authority to implement rules pursuant to the Act, Minnesota appellate courts have consistently utilized the Guidelines to answer as a matter of law questions unanswered by the language of the ICWA itself. See, e.g., In re Custody of S.E.G., 521 N.W.2d 357, 363 (Minn. 1994)

; id. at 364-65; In re Adoption of M.T.S., 489 N.W.2d 285, 287-88 (Minn. App.1992); In re Welfare of M.S.S., 465 N.W.2d 412, 418-19 (Minn.App.1991). And a number of other jurisdictions have concluded that a tribal determination that a child is a member of a tribe or eligible for membership in a tribe is conclusive evidence that the child is an "Indian child" under the ICWA. See, e.g., In re Junious M., 144 Cal.App.3d 786, 193 Cal.Rptr. 40, 43 (1983); In re Shawboose, 175 Mich.App. 637, 438 N.W.2d 272, 273 (1989); In re Adoption of Riffle, 277 Mont. 388, 922 P.2d 510, 513 (1996); State ex rel. Juvenile Dep't v. Tucker, 76 Or.App. 673, 710 P.2d 793, 797 (1985); People in Interest of J.J. and S.J., 454 N.W.2d 317, 327-28 (S.D. 1990); In re M.C.P., 153 Vt. 275, 571 A.2d 627, 634 (1989); In re Dependency of Colnar, 52 Wash.App. 37, 757 P.2d 534, 535-36 (1988); see also In re Baby Boy Doe, 123 Idaho 464, 849 P.2d 925, 931 (1993) (stating that court must make "its own determination" regarding eligibility where neither tribe nor BIA has made conclusive determination regarding eligibility).

Freeman concedes that the Leech Lake Band has the authority to determine its own membership. She argues, however, that when applying the ICWA, a juvenile court "must be satisfied that the Tribe has made an appropriate `determination'" to give that determination conclusive effect and that, therefore, the juvenile court "must inquire" whether the tribe correctly applied its internal standards to determine that a child is eligible for membership.

To support this contention, Freeman first cites United States v. Broncheau, 597 F.2d 1260 (9th Cir.1979), which concludes that enrollment in a tribe is not "necessarily determinative" of "Indian" status under 18 U.S.C. § 1153. 597 F.2d at 1263. But Broncheau seeks to answer a question entirely different from the one before us. In Broncheau and the cases it cites, the appellants...