This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2002).
IN COURT OF APPEALS
In the Matter of the Welfare of the
Children of: C.V., Mother.
Hennepin County District Court
File No. J702069431
Korey Wahwassuck (pro hac vice), 6530 U.S. Hwy. 2 Northwest, Cass Lake, MN 56633 (for appellant Leech Lake Bank of Ojibwe)
Amy Klobuchar, Hennepin County Attorney, Mary M. Lynch, Assistant County Attorney, Suite 1200, 525 Portland Avenue, Minneapolis, MN 55415 (for respondent Hennepin County Human Services Department)
John M. Jerabek, Niemi, Barr & Jerabek, P.A., Suite 200, 510 Marquette Avenue, Minneapolis, MN 55402 (for respondent guardian ad litem)
Lynn Klicker Uthe, Suite 101, 1730 Plymouth Road, Minnetonka, MN 55305 (for respondent C.V.)
Considered and decided by Randall, Presiding Judge; Stoneburner, Judge; and Huspeni, Judge.*
Appellant Leech Lake Band of Ojibwe (the Band) argues that the district court abused its discretion by denying the Band’s motion to transfer the permanency planning trial concerning C.V.’s nonenrolled-Indian children to the Leech Lake tribal court. Because the district court did not abuse its discretion, we affirm.
C.V. is the mother of R. D-V. and M. D-V (the children). On December 3, 2002, respondent Hennepin County Department of Family Services (HCDFS) placed the children in foster care and petitioned for termination of C.V.’s parental rights, or, in the alternative, for a permanent transfer of legal custody of the children. Because C.V. is a member of the Band and the children are eligible for membership in the Band, the Indian Child Welfare Act (the ICWA) applies. Although the Band was not present at an emergency protective care hearing on December 5, 2002, the Band has attended all subsequent hearings and has fully participated in the district court proceedings regarding permanency planning for the children.
Although C.V. was in favor of placement with her mother, Band member Gladys Sandland, neither HCDFS nor the Band initially supported placement of the children with Sandland. In March 2003, when it was apparent that only two children required placement, the Band notified the district court that it was reconsidering placement of the children with Sandland. On April 28, 2003, C.V.’s attorney moved for transfer of permanent legal and physical custody of the children to Sandland and her husband, Band member Wayne Sandland. On the same day, the district court granted supervised visitation between Sandlands and the children.
By letter dated July 3, 2003, the Band requested a continuance of the TPR trial that was scheduled to begin on July 9, 2003, so that the Band could complete its investigation of Sandlands as a placement option. The district court granted the request and rescheduled the TPR trial for September 29, 2003, stating that no further continuances would be granted. On July 9, 2003, the district court ordered HCDFS to facilitate unsupervised visitation between Sandlands and the children.
A progress report from HCDFS dated August 8, 2003, indicated that although the first supervised visit between Sandlands and the children went well, following the second visit, one and one-half hours of which was unsupervised, both children engaged in serious acting out that lasted about four days. Due to these problems HCDFS requested that the children have only short, supervised visits with Sandlands, and the district court granted this request. The children did not have any further acting out behaviors after the district court suspended unsupervised visits with Sandlands.
By letter dated September 12, 2003, the Band advised HCDFS that it supported placement of the children with their maternal aunt, Band member Gina Tanner, and supported Tanner as the permanency resource for the children. The Band wrote that “immediate placement with Ms. Tanner is in the children’s best interests” noting that the children had experienced several successful visits with Tanner; the children were bonding with Tanner’s children, and Tanner was willing to be a permanency resource for the children. On September 17, 2003, the district court approved placement of the children with Tanner. HCDFS reported on September 24, 2003, that the Guardian ad Litem [GAL] recommended that legal and physical custody of the children be transferred to Tanner. The report outlined the special needs and the progress of each child in Tanner’s home. The September 29, 2003, trial date was used for a pre-trial hearing and the permanency trial was reset for January 5, 6, and 7, 2004.
Sandland attempted, unsuccessfully, to intervene in the proceedings. On January 5, 2004, C.V. signed a voluntary consent for Tanner to adopt the children, but on January 16, 2004, C.V., who had hired a new attorney, revoked her consent for Tanner to adopt.
On January 27, 2004, the Band revised its Child Protection Code to provide for jurisdiction over non-enrolled Indian children. On January 28, 2004, the Band asked HCDFS to immediately move the children from Tanner’s home to the Sandlands’ home and advised the district court that it now supported a transfer of legal custody of the children to Sandland. HCDFS declined to move the children. On January 30, 2004, the Band moved to transfer this case to Leech Lake Tribal Court. C.V. supported the transfer. HCDFS and the GAL opposed the transfer. After a hearing on the motion to transfer, the district court denied the Band’s motion to transfer. This appeal followed.
Standard of Review
Minnesota has not specifically addressed what standard of review applies to a motion to transfer an ICWA case to tribal court. But other courts have applied an abuse-of-discretion standard. See, e.g., In re D.M., 685 N.W.2d 768, 770 (S.D. 2004) (stating “[d]enial of a motion to transfer jurisdiction under 25 U.S.C. § 1911(b) is reviewed under the abuse of discretion standard.”); In re A.T.W.S., 899 P.2d 223, 225 (Colo. Ct. App. 1994) (“The determination of good cause is within the discretion of the juvenile court.”). The BIA guidelines also allow the inference that transfer of jurisdiction under the ICWA is discretionary:
Portions of [the ICWA] do expressly delegate to the Secretary of the Interior responsibility for interpreting statutory language. . . .
Primary responsibility for interpreting other language used in the [ICWA], however, rests with the courts that decide Indian child custody cases. For example, the legislative history of the [ICWA] states explicitly that the use of the term “good cause” was designed to provide state courts with flexibility in determining the disposition of a placement proceeding involving an Indian child.
44 Fed. Reg. 67,584 (1979) (citation omitted). The parties in this matter urge an abuse-of-discretion standard, and we agree that the appropriate standard of review for a district court’s decision on a motion to transfer a matter to the tribal court under the ICWA and the MIFPA is abuse of discretion. This is a very deferential standard. Even if we might have reached a different conclusion, we will not reverse absent a clear abuse of discretion. See, e.g., Gross v. Victoria Station Farms, Inc., 578 N.W.2d 757, 761 (Minn. 1998) (stating that appellate court will not reverse even if review of the record could result in a different conclusion because of the great deference given to the trial court for evidentiary matters under the abuse-of-discretion standard);Meyer v. Meyer, 375 N.W.2d 820, 825-26 (Minn. App. 1985) (reviewing the record does not reveal trial court abused discretion in a custody matter, even though the appellate court might have decided differently if acting as trial judge).
The ICWA recognizes “that there is no resource that is more vital to the continued existence and integrity of Indian tribes than their children . . . .” 25 U.S.C. § 1901(3). Moreover, “the States, exercising their recognized jurisdiction over Indian child custody proceedings through administrative and judicial bodies, have often failed to recognize the essential tribal relations of Indian people and the cultural and social standards prevailing in Indian communities and families.” Id. at (5). The policy of the ICWA addresses this concern, and aims to protect the best interests of Indian children, and to protect the tribes, by creating a minimum federal standard for placement proceedings. 25 U.S.C. § 1902.
The ICWA allows states to create a higher standard of protection for Indian children, and Minnesota has done so in the Minnesota Indian Family Preservation Act (the MIFPA). 25 U.S.C. § 1921; Minn. Stat. §§ 260.751-.835 (2002). But the MIFPA’s provision regarding transfer of proceedings in which the state and tribal courts have concurrent jurisdiction, found at Minn. Stat. § 260.771, subd. 3 (2002), is almost identical to the ICWA provision for transfer of proceedings, which states:
In any State court proceeding for the foster care placement of, or termination of parental rights to, an Indian child not domiciled or residing within the reservation of the Indian child’s tribe, the court, in the absence of good cause to the contrary, shall transfer such proceeding to the jurisdiction of the tribe, absent objection by either parent, upon the petition of either parent or the Indian custodian or the Indian child’s tribe: Provided, That such transfer shall be subject to declination by the tribal court of such tribe.
25 U.S.C. § 1911(b) (2002). The provisions recognize concurrent jurisdiction over children who are eligible for tribal membership with a presumption in favor of tribal jurisdiction “in the absence of good cause to the contrary.” “Good cause” is not defined in either statute.
This court looks to the Bureau of Indian Affairs (BIA) Guidelines (44 Fed. Reg. 67,584-67,595 (1979)) for guidance in interpreting the ICWA. In re Welfare of S.N.R., 617 N.W.2d 77, 81(Minn. App. 2000) (citing numerous cases in which Minnesota appellate courts have used the Guidelines to answer question unanswered in the ICWA itself). The BIA guidelines provide that good cause not to transfer a proceeding to tribal court may exist 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 hearing.” 44 Fed. Reg. 67,591 § C.3(b)(i). The BIA guidelines also provide that the burden of establishing good cause to deny a transfer is on the party opposing the transfer. Id. at (d).
Commentary to the BIA Guidelines provides:
While the [ICWA] permits intervention at any point in the proceeding, it does not explicitly authorize transfer requests at any time. Late interventions do not have nearly the disruptive effect on the proceeding that last minute transfers do.
. . . .
Inclusion of [the timeliness] criterion is designed to encourage the prompt exercise of the right to petition for transfer in order to avoid unnecessary delays. Long periods of uncertainty concerning the future are generally regarded as harmful to the well-being of children. For that reason, it is especially important to avoid unnecessary delays in child custody proceedings.
44 Fed. Reg. 67,590, § C.1 Commentary; 44 Fed. Reg. 67,591-92, § C.3 Commentary.
Though all parties rely on the BIA Guidelines to help define good cause, the Band also focuses a great deal on the Minnesota State/Tribal Agreement (Agreement). Minnesota Statute § 260.771, subd. 5, and § 1919 of the ICWA allow states and tribes to enter into agreements to further the purposes of the ICWA. Minnesota authorized the Commissioner of the Department of Human Services to enter into an agreement with the Indian tribes of Minnesota, and the Agreement became effective in 1998. Agreement, Part I § C. The Agreement was developed to:
provide a mechanism for maximizing the participation of tribes in decisions regarding Indian children, especially in the provision of Indian child welfare services in addressing barriers to implementing those services for the protection of Indian families and children and for preventing foster placements and non-Indian adoptions. The Agreement is directed at child welfare activities of the State through it’s [sic] local social services systems and attempts to impact the state’s judicial systems.
Agreement, Part I § B (emphasis added). But the Agreement provides the same test as the BIA Guidelines for good cause to deny a transfer request. Agreement, Part I § E ¶ 15 (stating “‘Good Cause’ shall have the meaning set forth in the [BIA] ‘ICWA Guidelines’ in the Federal Register”). The Agreement, like the ICWA and the BIA guidelines, explicitly permits an Indian child’s tribe to “intervene in a state court child custody/placement proceeding for the purpose of requesting a transfer of jurisdiction to tribal court or for asserting its other rights under [the] ICWA and [the] MIFPA at any time, even in the advanced stages of such proceeding. . . .” Agreement, Part III § B, ¶ 3.
Although Minnesota has never addressed the definition of “good cause to the contrary” in a published case, several other courts have determined that “good cause to the contrary” is established on a case-by-case basis. See In re A.L., 442 N.W.2d 233, 236 (S.D. 1989) (stating good cause determination, especially regarding timeliness, requires a case-by-case determination); In re J.W., 528 N.W.2d 657, 660(Iowa Ct. App. 1995) (stating that facts of the case showed that the proceedings were at an advanced stage, resulting in good cause to deny transfer); Yavapai-Apache Tribe v. Mejia, 906 S.W.2d 152, 163 (Tex. Ct. App. 1995) (stating: “A good cause determination is necessarily made on a case-by-case basis after consideration of all the circumstances involved.”). We agree with the rationale stated in the cited opinions that good cause to deny a transfer is a fact-specific inquiry to be determined on a case-by-case basis.
In this case, the district court found good cause to deny the transfer to tribal court based on the advanced stage of the proceedings and the Band’s failure to move for transfer earlier in the proceedings despite its active involvement from almost the beginning of the proceeding. The district court determined that in the circumstances of this case, good cause to deny transfer exists under the ICWA, the MIFPA, the BIA Guidelines and persuasive precedent from other jurisdictions. The district court noted that nothing in the language of the Agreement mandates that the court grant a request to transfer under any circumstance.
The Band first received notice of the proceeding in December of 2002, but did not request transfer to tribal court until January 2004. The request for transfer immediately followed HCDFS’s refusal to place the children with Sandlands after C.V. withdrew consent for Tanner to adopt. The Band persuasively argues that transfer to its own tribal court was not possible prior to the Band’s revision of its Child Protection Code extending jurisdiction to nonenrolled children. The Band points out that it requested transfer immediately after the revision. The Band concedes that it could have requested transfer to another tribal court earlier in the proceeding, but the Band argues that the laws of that tribe would then apply, depriving the Band of its right to apply its own child-protection code to this matter. But the policy reasons behind disfavoring transfers requested late in the proceedings are as much to protect the well being of the children as to ensure prompt action by a tribe. The fact that the delay in requesting a transfer to the Leech Lake Tribal Court was caused by the tribal court’s recent acquisition of jurisdiction over nonenrolled children does not make the delay any less detrimental to the children’s well-being.
The Band argues that their motion was timely because they have the right to intervene and request a transfer of jurisdiction at any time in the proceedings under the ICWA, the MIFPA, the BIA Guidelines and the Agreement. As noted by HCDFS, however, there is a difference between a right to intervene to request a transfer of jurisdiction and a right to a transfer of jurisdiction. None of the authorities cited mandate that the district court grant a motion to transfer a case involving nonenrolled children to tribal court merely because a tribe has moved for such a transfer. In this case, the Band was permitted to move for transfer and the case was continued to allow for consideration of the motion. The matter was briefed and argued to the district court. The Band has fully exercised its right to intervene to request a transfer and the district court has accommodated that right.
The Band argues that the district court erroneously applied a “best-interests-of-the-children” analysis to the issue of transfer of jurisdiction. As noted above, comments to the BIA Guidelines state that a request for transfer brought at an advanced stage of the proceedings may be good cause to deny transfer as that delay is generally harmful to the well being of children. The district court, therefore, did not err by considering the effect of the late request on the well being of the children. The district court had already granted several continuances in this case at the request of the Band, which was represented by five different attorneys during the proceedings. And the district court specifically rejected any further application of a best-interests standard to determine jurisdiction. After noting that several other courts have applied such an analysis, the district court stated: “While applying this standard may seem fitting, it should be noted that the best-interests-of-the-child standard is not one of the factors outlined in the BIA Guidelines, and has only been applied in a few states.” The district court appears to have adopted the reasoning of courts that have held that a best-interests analysis is relevant only to placement and not to jurisdiction. Because the district court did not rely on a best-interests-of-the-child analysis to deny the transfer, we need not address in this case whether such reliance would have been error.
The Band also argues that the district court did not correctly consider the purposes of the ICWA with regard to tribal sovereignty over Indian children. We find no merit in this argument. The ICWA and the MIFPA recognize the concurrent jurisdiction of the Band and the state over nonenrolled children and provide for an exercise of judicial discretion by the state court in granting, and by the tribal court in accepting, jurisdiction. In this case, the district court has fully recognized and amply accommodated the Band’s participation in the proceedings and, as evidenced by its memorandum, has given careful thought to the transfer request. The Band’s lately enacted expansion of jurisdiction to cover nonenrolled children does not mandate that it have jurisdiction over these children. In this case, the children are placed with their Band-member maternal aunt, who was the preferred permanency resource of the Band until January of 2004. The Band can present all of its arguments against this placement and in favor of placement with Sandlands in a trial in district court. And, under ICWA, the district court must give consideration to the Band’s interests as well as the best interests of the children.
We conclude that the district court’s decision to deny transfer of jurisdiction to the tribal court in this case does not defeat the purpose and intent of the ICWA, the MIFPA, or the Agreement, or implicate the Band’s sovereign immunity, and was not an abuse of discretion.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.
 The petition involved four children but two of the children have subsequently been permanently placed with their respective fathers.
 William Miller, father of the children, is not an Indian and is not involved in this appeal.