This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1998).
STATE OF MINNESOTA
IN COURT OF APPEALS
In the Matter of the Welfare of: D. M., E. M., and A. M.
Hennepin County District Court
File No. J498073172
William E. McGee, Chief Hennepin County Public Defender, Peter W. Gorman, Assistant County Public Defender, 317 Second Avenue South, Suite 200, Minneapolis, MN 55401 (for appellant Diane Thompson)
Amy Klobuchar, Hennepin County Attorney, Andrew J. Mitchell, Senior Assistant County Attorney, Health Services Building, 525 Portland Avenue, Suite 1210, Minneapolis, MN 55415 (for respondent Hennepin County Department of Children and Family Services)
Joseph Plumer, 6530 U.S. Highway 2 Northwest, Cass Lake, MN 56633 (for respondent Minnesota Chippewa Tribe, Leech Lake Band)
Considered and decided by Kalitowski, Presiding Judge, Shumaker, Judge, and Anderson, Judge.
U N P U B L I S H E D O P I N I O N
Appellant Diane Thompson challenges the termination of her parental rights to three of her children. She contends that (1) she was prejudiced when her former attorney subsequently appeared on behalf of a witness in the proceeding; (2) the evidence presented by respondent Hennepin County violated the rules of evidence and did not meet the requirements of the Indian Child Welfare Act; (3) the district court abused its discretion by refusing to vacate the default judgment; and (4) she was denied due process of law. We affirm.
D E C I S I O N
Appellant Diane Thompson waived her claim that it was improper for her former counsel to appear on behalf of a tribal witness by failing to raise the claim before the district court. See In re Welfare of M.H., 595 N.W.2d 223, 229 (Minn. App. 1999) (stating that, even in the context of termination of parental rights, this court generally will not consider matters not argued and considered in the district court). Moreover, appellant provided no support for a claim that she was prejudiced by her former counsel’s appearance or that this constituted a reversible error in this proceeding.
Appellant raises various evidentiary arguments regarding the testimony by two social workers and an expert witness. But appellant waived her claims regarding leading questions, lack of personal knowledge, lack of foundation, and hearsay by electing not to participate in the hearings and therefore failing to raise them below. See id. Moreover, we conclude that none of these claims go to the substance of the evidence supporting the termination and therefore they do not constitute reversible error.
Appellant, citing 25 U.S.C. § 1912(f) (1994) and the Guidelines to State Courts; Indian Child Custody Proceedings, 44 Fed. Reg. 67583, 67589-90 (1979), argues that the district court abused its discretion in allowing Carla Rojas to testify as an expert because her testimony was not timely. We disagree. Section 1912(f) provides that when the Indian Child Welfare Act (ICWA) applies, termination of parental rights cannot be ordered
in the absence of a determination, supported by evidence beyond a reasonable doubt, including testimony of qualified expert witnesses, that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical harm.
Appellant contends this provision requires the expert testimony to be given at the same time as the other evidence in this case. We disagree. This provision indicates the type of evidence that must support a termination of parental rights but does not require that the evidence be given at a particular time.
The Guidelines provide that temporary emergency custody of an Indian child must not be continued for more than 90 days without a determination by the court that is supported by the testimony of at least one qualified expert witness. Guidelines to State Courts; Indian Child Custody Proceedings, Fed. Reg. 67583, 67589-90 (1979). Rojas’s testimony is not covered by this provision because the proceeding was not a temporary emergency custody continuation; it was a proceeding for the termination of parental rights.
Appellant also argues that the district court erred because Rojas did not qualify as an expert witness under ICWA. We disagree. Determining whether an expert witness is qualified is within the district court’s sound discretion and will not be reversed absent an abuse of discretion. Gross v. Victoria Station Farms, Inc., 578 N.W.2d 757, 760 (Minn. 1998).
Under ICWA, termination of parental rights must be supported by evidence beyond a reasonable doubt, including testimony by a qualified expert witness. 25 U.S.C. § 1912(f). Under the combined requirements of ICWA and the Minnesota Department of Human Services Manual, a qualified expert witness must be one of the following:
(i) A member of the Indian child’s tribe who is recognized by the tribal community as knowledgeable in tribal customs as they pertain to family organization and childrearing practices.
(ii) A lay expert witness having substantial experience in the delivery of child and family services to Indians, and extensive knowledge of prevailing social and cultural standards and childrearing practices within the Indian child’s tribe.
(iii) A professional person having substantial education and experience in the area of his or her specialty and having substantial knowledge of prevailing social and cultural standards and childrearing practices within the Indian community.
In re Welfare of M.S.S., 465 N.W.2d 412, 417 (Minn. App. 1991) (citations omitted).
Rojas testified that (1) she was the urban representative for the Minnesota Chippewa Tribe; (2) she was a member of the White Earth band of the Minnesota Chippewa Tribe; (3) she had been working with family services with Indian families for four years; (4) she was familiar with this case based on the case files; (5) she was familiar with childrearing practices of Native American families based on her employment and her own upbringing; (6) she had three children of her own and has had foster children in the past; (7) she was a licensed foster care provider through a Native American licensing agency; (8) she was raised on a reservation and this experience familiarized her with raising Native American children; and (9) prior to her current position she worked for the Minnesota Indian Women’s Resource Center providing reunification services for child protection clients. Based on this testimony, the district court did not abuse its discretion in determining that Rojas was a qualified expert witness because she had “substantial experience in the delivery of child and family services to Indians” and “extensive knowledge of prevailing social and cultural standards and childrearing practices within the Indian community.”
A “stringent” standard of review is applied to a district court’s decision to terminate parental rights and this court will closely scrutinize the sufficiency of the evidence. Welfare of M.S.S., 465 N.W.2d at 416.
When ICWA applies, termination of parental rights cannot be ordered
in the absence of a determination, supported by evidence beyond a reasonable doubt, including testimony of qualified expert witnesses, that the continued custody of the child by the parent is likely to result in serious emotional or physical harm.
In re Welfare of B.W., 454 N.W.2d 437, 445 (Minn. App. 1990) (citing 25 U.S.C. § 1912(f)). A party seeking to terminate parental rights to an Indian child must prove beyond a reasonable doubt that
active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and that those efforts have proved unsuccessful.
Welfare of M.S.S., 465 N.W.2d at 418 (citing 25 U.S.C. § 1912(d) (1986)). The efforts must take into account the prevailing social and cultural conditions of the Indian child’s tribe and use the available resources of the extended family, the tribe, Indian social services agencies, and individual Indian caregivers. Welfare of M.S.S., 465 N.W.2d at 418 (citing Guidelines, 44 Fed. Reg. 67592 (1979)).
Appellant argues that respondent did not prove beyond a reasonable doubt that her continued custody of the children would result in serious damage to them or that “active efforts” had been made to provide remedial and rehabilitative services. We disagree.
Appellant has not challenged the facts in the petition to terminate her parental rights or the district court’s findings, other than her evidentiary objections that were not raised until this appeal. She cannot challenge the facts at this point in the proceedings because she did not dispute them before the district court. See Thorp Loan & Thrift Co. v. Morse, 451 N.W.2d 361, 363 (Minn. App. 1990) (providing that a party in default may not deny facts alleged in the complaint when not put at issue below, assert facts not raised below, or assert procedural irregularities not raised below), review denied (Minn. Apr. 13, 1990).
The district court made detailed findings of fact that are supported by the witness’s testimony and the evidence in the case file regarding D.M., E.M., and A.M. The court found that appellant has been assessed as chronically chemically dependent with a history of 22 failed treatment attempts and 75 placements in detoxification centers. The court also made findings concerning numerous instances of appellant’s neglect of the children, including leaving them alone at home without food, letting them outside in cold weather without appropriate clothing, and failing to obtain the children’s inoculations. The court noted that on more than one occasion, inspections of the home revealed filthy living conditions, and that appellant permitted parties involving heavy drinking in the children’s presence.
We conclude the district court did not abuse its discretion when it determined that continued custody by appellant would result in serious emotional or physical harm. The failure of the prior attempts at protective supervision and the unsuccessful attempt to transfer custody to a relative adequately support the district court’s determination that active efforts to provide remedial and rehabilitative services were made but have been unsuccessful.
Appellant argues that the district court abused its discretion in denying appellant’s motion to vacate the default judgment. We disagree.
Prior to the January 2000 enactment of amendments to the juvenile procedure rules, this court applied Minn. R. Civ. P. 60.02 when considering motions to vacate a judgment in cases involving the termination of parental rights. See, e.g., In re Welfare of B.J.J., 476 N.W.2d 525, 527 (Minn. App. 1991) (finding no basis under rule 60.02 to justify vacating order terminating father’s parental rights).
Under Minn. R. Civ. P. 60.02(a), a district court may vacate a final judgment for mistake, inadvertence, surprise, or excusable neglect. A district court’s denial of a motion to vacate default judgment will not be reversed absent an abuse of discretion. Foerster v. Folland, 498 N.W.2d 459, 460 (Minn. 1993). The district court must consider whether the moving party has demonstrated (1) a reasonable defense on the merits; (2) a reasonable excuse for the failure or neglect to act; (3) that it acted with due diligence after notice of entry of judgment; and (4) that no substantial prejudice will result if the action is reopened. Id. (citing Hinz v. Northland Milk & Ice Cream Co., 237 Minn. 28, 30, 53 N.W.2d 454, 455-56 (1952)).
Here, we conclude the district court did not abuse its discretion in determining that appellant did not demonstrate a reasonable defense on the merits. As the district court found “given [appellant’s] lengthy history of alcohol abuse and repeated relapses that result in destructive parenting and child neglect,” appellant’s suggestion that her alcoholism could be treated does not constitute a “reasonable” defense on the merits. Appellant has been unable to maintain her sobriety despite at least 22 treatment attempts and over 70 placements into detoxification centers.
Appellant also failed to demonstrate that the default was the result of excusable neglect. Appellant claims she failed to attend the hearing because she was at Hennepin County Medical Center seeking treatment for a head injury from falling on ice the previous day. The only evidence of appellant’s injury was in an affidavit by appellant’s attorney that reported her conversation with appellant. Appellant never produced any hospital record that appellant sought treatment for an injury on the date of the hearing. Appellant had been served notice that a pretrial hearing would be held on March 8, 1999, at 10:00 a.m. The notice stated in bold type that if she did not appear, judgment by default could be entered. We conclude the district court did not abuse its discretion in determining appellant failed to establish excusable neglect.
The district court did not abuse its discretion in determining that appellant did not act with due diligence following notice of the default. The stayed default judgment occurred in March 1999. Although subsequent to the March proceeding appellant participated in a failed effort to transfer legal custody of the children to a relative, her first motion to address the default did not occur until October 1999.
The district court did not find that respondent would be prejudiced by vacating the default judgment. But the court was appropriately concerned about the prejudice to the children due to the fact that a permanent resolution for the children would be delayed by reopening the case. The children had been in continuous out-of-home placement for almost one year and the district court found, based on a report by the person providing outpatient psychotherapy to the children, that they had made “remarkable progress” in foster care with foster parents who desired to adopt the children.
Because appellant failed to establish that any of the Hinz factors weigh in her favor, we cannot say the district court abused its discretion by denying appellant’s motion to vacate the judgment.
Appellant argues that her due process rights were violated when the stayed default hearing was reconvened for the expert testimony required by ICWA because the district court (1) had already decided the case and therefore was biased; and (2) did not specifically deny appellant’s counsel’s motion attempting to reserve the right to cross-examine the expert at a later date. We disagree.
A judge must not have actual bias against a party or an interest in the outcome of the particular case. McKenzie v. State, 583 N.W.2d 744, 747 (Minn. 1998). We presume that a judge discharged his or her duties properly. Id.
To establish partiality, appellant relies on the district court’s statement that
[s]ince a final order has never been entered, it’s the Court’s intention today to take the testimony from the Tribal representatives so that the Court can vacate the stayed [termination of parental rights] and there can be a final order from which parties can take a perfected appeal.
This statement reflects the fact that the expert testimony was the only remaining evidence to be presented by respondent in this matter. We conclude that the statement does not overcome the presumption of propriety and does not indicate that the district court was either actually biased against appellant or that the court had an improper interest in the outcome of the case.
Appellant’s counsel refrained from cross-examining the expert witness based on a belief that a pending appeal had deprived the district court of jurisdiction and that participation in the hearing would waive the jurisdictional claim. Appellant’s counsel attempted to reserve the right to cross-examine on the record stating:
I would reserve the right to cross-examine her and to object to any of her prior testimony should the Court of Appeals determine that you did have jurisdiction today.
The district court “noted” counsel’s objection. We would have preferred that the district court had either specifically denied the request to cross-examine the witness at a later date or, having not denied the request, allowed her to do so. Nevertheless, we conclude that the district court’s handling of this matter does not constitute reversible error. The amount of process due varies with the circumstances of each case and involves a balancing of the interests involved in the specific case. In re Welfare of HGB, 306 N.W.2d 821, 825 (Minn. 1981). Importantly, appellant has not challenged the substance of Rojas’s testimony or provided any evidence that the result here might have been different had she been later granted the right to cross-examine Rojas that her counsel chose not to exercise. Moreover, we conclude that the interests of the children outweigh what, in the absence of prejudice, is in effect a technical violation. See In re Welfare of S.R.A., 527 N.W.2d 835, 839 (Minn. App. 1995) (holding that in a termination of parental rights case, a technical violation of the parent’s due process was outweighed by the best interests of the children), review denied (Minn. Mar. 29, 1995).