IN COURT OF APPEALS
In the Matter of the Welfare of the Child of:
T.T.B. and G.W., Parents.
Filed March 21, 2006
Affirmed in part, reversed in part, and remanded
HennepinCounty District Court
File No. 27-J8-03-071747, 27-J9-03-057131
Jacqueline M. Beaulieu,
Leonardo Castro, Chief Fourth District Public Defender, Peter W. Gorman, Assistant Public Defender, 317 Second Avenue South, Suite 200, Minneapolis, MN 55401 (for appellant G.W.)
Thomas J. Vollbrecht, Guy-Uriel E. Charles (pro hac vice), Faegre &
Benson LLP, 2200
Mary M. Lynch, Assistant County Attorney, 525 Portland Avenue South, Suite 1210, Minneapolis, MN 55415 (for respondent Hennepin County Human Services and Public Health Department)
Jonathan G. Steinberg, 1155 Grain Exchange – East Building, 412 South Fourth Street, P.O. Box 15085, Minneapolis, MN 55415-0085 (for respondent guardian ad litem)
Considered and decided by Lansing, Presiding Judge; Kalitowski, Judge; and Halbrooks, Judge.
S Y L L A B U S
II. Good cause to deny a transfer of jurisdiction to a tribal court is not established by a four-hundred-mile distance between the state court and the tribal court or by the time lapse of six days between the filing of the amended child-protection petition and the transfer motion when the motion is filed before the deadline for pretrial motions.
O P I N I O N
In these consolidated appeals from the district court’s permanent-placement order for an Indian child, the child’s father and tribe challenge the district court’s subject matter and personal jurisdiction and its denial of their motion to transfer jurisdiction to the tribal court. The father also appeals the child’s placement in a non-Indian, nonrelative home and the denial of an intervention motion by a prospective placement. We affirm the district court’s exercise of jurisdiction but conclude that the absence of good cause for transfer of jurisdiction to the tribal court requires reversal.
F A C T S
and TTB are the parents of XTB, who was born in
days after XTB’s birth, the Rhode Island Department of Child, Youth, and
Families took him into custody under a forty-eight-hour emergency hold. The department took these actions based on
information that TTB, who was a minor at the time of XTB’s birth, had
previously been diagnosed with depression and posttraumatic stress syndrome, had
provided inconsistent information about her reason for being in Rhode Island,
and might have an open juvenile-protection case in Minnesota. The department contacted
on the information received from the department, the county filed a petition
for an emergency hold, and Hennepin County District Court issued an ex parte
emergency hold on XTB. Although TTB
opposed the county’s efforts to obtain custody of XTB, the dispute was
apparently resolved in the
county initially added XTB to TTB’s ongoing termination-of-parental-rights
proceeding, but the district court dismissed XTB from the petition. On December 31, 2003, the county filed a separate
petition to terminate parental rights or transfer legal custody of XTB. Neither GW nor TTB objected to the transfer
of legal custody; they indicated that they preferred XTB be placed with AGM,
TTB’s foster mother, in
In February 2004 TTB voluntarily terminated her parental rights to her older child. The tribe intervened in XTB’s proceeding in April 2004. AGM and her husband, NM, also filed a motion to intervene as participants in the proceeding. The district court denied their motion, ruling that it was premature and that permitting AGM and NM to intervene as participants would require intervention by the other potential placements.
Three months later, the district court issued a scheduling order, which required that all pretrial motions be filed by July 22, 2004. On July 16, 2004, the county amended its petition to allege that both parents wanted to transfer custody of XTB and that neither parent participated in their respective case plans or set up a visitation schedule. The amended petition also indicated that GW was a noncustodial parent and that he had chemical-health issues.
On July 22, 2004, GW and TTB filed a joint petition requesting that the district court transfer jurisdiction to the tribal court. GW also filed a motion to dismiss under Minn. R. Juv. Prot. P. 15.04. In the pretrial hearing held on August 12, 2004, the district court denied GW’s motion to dismiss because it concluded that the petition established a prima facie case. It then continued the transfer-of-jurisdiction issue to allow the tribe to provide a written statement on whether it would accept the transfer. On September 24, 2004, the tribe filed an independent motion to transfer jurisdiction to the tribal court. The district court, however, denied the motion to transfer jurisdiction on the grounds that the motions were filed at an advanced stage in the proceeding and that the 400-mile distance between the tribal court and the district court would cause undue hardship for the parties and participants.
October 2004 the parties stipulated to the facts and record supporting transfer
of legal custody and indicated their preference that custody of XTB be
transferred to AGM. As part of this
stipulation, the parties included a Rhode Island Interstate Compact Home
Assessment, which determines the suitability of a proposed placement. This assessment denied XTB’s placement with
AGM, based in part on AGM’s involvement with the questionable circumstances
that led to TTB giving birth in
February 2005 the district court issued an order transferring legal custody to
SG. The court concluded that the child’s
best interests would be served by placement with SG because of her willingness
to provide for XTB and because TTB’s older child lived in her home. It also concluded that BW had not
demonstrated sufficient interest in either the child or the proceedings and
that AGM was not a valid placement option based on the conclusion of the
GW filed a motion for a new trial, and the district court denied his motion. GW and the tribe both appeal from the order denying transfer of jurisdiction to the tribal court, and GW appeals from the district court’s denial of his motion to dismiss, its denial of AGM’s motion to intervene as a participant, and its order transferring custody to SG. We consolidated GW’s and the tribe’s appeals for purposes of review.
I S S U E S
I. Does the district court have subject matter jurisdiction to transfer legal custody?
II. Does the district court have personal
jurisdiction over an Indian child who was born in
III. Is a petition to transfer jurisdiction of a child-protection case to a tribal court filed at an advanced stage in the proceeding when the petition was filed six days after the amended child-protection petition and before the deadline for pretrial motions?
A N A L Y S I S
matter jurisdiction is “a court’s power to hear and determine cases of the
general class or category to which the proceedings in question belong.” Bode v.
Minn. Dep’t of Natural Res., 594 N.W.2d 257, 259 (Minn. App. 1999)
(quotation omitted), aff’d, 612
N.W.2d 862 (
and the tribe assert that the district court lacked subject matter jurisdiction
because it did not make adequate findings that XTB was in need of protection or
services. This argument, however, mistakenly
combines the issue of subject matter jurisdiction with a determination of the
underlying elements of the action. See Arbaugh
v. Y & H Corp., 126
The record in this case includes the required
allegations. Both the initial and amended
petitions allege that XTB is in need of protection or services. The petitions also indicate that, because
neither parent intends to exercise custody over XTB, the child has no place to
live. A child who has no place to live
is a child in need of protection or services.
This determination does not exclude the
existence of subject matter jurisdiction in the
GW and the tribe assert that the district court
lacks personal jurisdiction over XTB because he was born in
The issue of personal jurisdiction has been
waived. Neither GW nor the tribe
included the defense in a responsive pleading or raised it as a defense. GW filed a motion to dismiss under rule
15.04, which provides for dismissal for lack of subject matter jurisdiction,
personal jurisdiction, or the failure to establish a prima facie case.
A transfer-of-legal-custody proceeding is a child-custody proceeding under the Indian Child Welfare Act (ICWA), 25 U.S.C. §§ 1901-1963 (2000), and the Minnesota Indian Family Preservation Act, Minn. Stat. §§ 260.751-.835 (2004). When the court does not terminate parental rights, the parents retain their visitation rights and the power to request modification of custody, and the transfer-of-legal-custody proceeding qualifies as a foster-care placement proceeding. See 25 U.S.C. § 1903(1)(i) (defining “foster care placement” as “any action removing an Indian child from its parent or Indian custodian for temporary placement in . . . the home of a guardian [where the parent] cannot have the child returned upon demand, but where parental rights have not been terminated”); see also Minn. Stat. § 260C.201, subd. 1(a)(2)(ii) (2004) (referring to transfer of legal custody as foster-care placement).
In a proceeding for the foster-care placement
of an Indian child who does not reside on the reservation of the child’s tribe,
the district court, on the petition of either parent or the Indian child’s
tribe, shall transfer the proceeding to the jurisdiction of the tribe unless
either parent objects or good cause to the contrary exists. 25 U.S.C. § 1911(b). The presumptive transfer absent good cause or
parental objection reflects the congressional intent in the ICWA to ensure
that, as a general principle, Indian tribes would have authority to determine
custody issues involving Indian children.
Under the BIA guidelines, the party opposing
transfer has the burden of establishing good cause. BIA Guidelines, 44 Fed. Reg. 67,584, 67,591 (Nov.
26, 1979). Good cause exists if the “proceeding
was at an advanced stage when the petition to transfer was received and the
petitioner did not file the petition promptly after receiving notice of the
Good cause also exists when the “evidence necessary
to decide the case could not be adequately presented in the tribal court
without undue hardship to the parties or the witnesses.”
Both parents and the tribe petitioned the court to transfer jurisdiction to the tribal court, and neither parent objected to the transfer. The court, however, concluded that good cause existed to deny the transfer because the tribal court is approximately 400 miles away and the petitions were made at an advanced stage in the proceeding. Neither reason supports a discretionary decision to deny transfer.
First, the distance between
Second, the court did not receive the petitions at an advanced stage in the proceedings. The initial petition to transfer jurisdiction was filed on July 22. This filing occurred only six days after the filing of the amended petition for transfer of legal custody. Significantly, the petition for transfer of jurisdiction was filed by the deadline for filing pretrial motions. When the district court considered the motion for transfer of jurisdiction at the August 12 pretrial hearing, it did not indicate that the motion was untimely. The court only requested that the tribe provide a written statement of its willingness to accept jurisdiction. The tribe provided this statement on September 24. Because the petition was filed shortly after the amended petition for transfer of legal custody, complied with the scheduling order of the district court, and occurred before any permanency trial, the petition for transfer of jurisdiction was not filed at an advanced stage in the proceedings, and good cause does not exist to deny the transfer of jurisdiction to the tribal court.
The remaining two issues relate to the district court’s determination of the participants in the proceeding and the preferences to be applied in the ultimate placement decision. Both of these determinations occurred after the district court’s denial of the petition to transfer jurisdiction. Because we conclude that the law requires transfer of jurisdiction to the tribal court, these determinations extended beyond the district court’s right to adjudicate and are therefore invalid.
D E C I S I O N
We affirm the district court’s
exercise of subject matter jurisdiction to consider a petition to transfer
legal custody of a child alleged to be in need of protection or services, and
we conclude that the issue of personal jurisdiction was waived. We reverse the district court’s denial of the
motion to transfer jurisdiction to the tribal court and remand for transfer of
jurisdiction to the
Affirmed in part, reversed in part, and remanded.