This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
STATE OF MINNESOTA
IN COURT OF APPEALS
In the Matter of the Welfare of
the Children of:
Filed September 13, 2005
St. Louis County District Court
File No. J5-04-651145
Alan L. Mitchell, St. Louis County Attorney, Joanne Vavrosky, Assistant County Attorney, 320 West Second Street, Room 403, Duluth, MN 55802 (for respondent St. Louis County)
James White, Red Lake Band of Chippewa Indians Family and Children’s Services, P.O. Box 427, Red Lake, MN 56671 (ICWA advocate)
Considered and decided by Kalitowski, Presiding Judge, Shumaker, Judge, and Forsberg, Judge.
Appellant mother challenges the adjudication of her children as being in need of protection or services (CHIPS) and their continued out-of-home placement. Because the district court’s findings are supported by the record and its other rulings are not an abuse of its discretion or otherwise erroneous, we affirm.
there was no new-trial motion here, we review only substantive issues of law
properly raised at trial, whether the evidence supports the findings of fact,
and whether the findings support the conclusions of law and ultimate ruling. Alpha
Real Estate Co. v. Delta Dental Plan, 664 N.W.2d 303, 310 (
the finding that the “the children were in need of protection and services [when
the CHIPS] petition was filed[,]” appellant argues that the CHIPS adjudication
is improperly based on circumstances existing when the petition was filed,
rather than when the district court made its ruling. See In
re Welfare of Clausen, 289 N.W.2d 153, 156 (
We reject appellant’s challenge to the sufficiency of the evidence to support the determination that, at the time of trial, the children were in need of protection or services under Minn. Stat. § 260C.007, subd. 6(3), (8) (2004), which address whether a child lacks “necessary food, clothing, shelter, education, or other required care” because the parent “is unable or unwilling to provide that care[,]” and whether the child lacks “proper parental care because of the emotional, mental, or physical disability, or state of immaturity of the child’s parent[.]” The record shows both appellant’s failure to comply with her sobriety plan after her discharge from treatment and that she continued to have problems caring for her children. The former shows a lack of commitment to showing continued sobriety, while the latter is highlighted not only by the children’s special needs, but also by appellant’s failures to provide basic care and to approve and participate in evaluations and critical aspects of her case. The record has clear and convincing evidence that the children needed protection or services at the time of trial.
Before foster placement of an Indian child, the Indian Child Welfare Act (ICWA) requires “a determination, supported by clear and convincing evidence, 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 damage to the child.” 25 U.S.C. § 1912(e) (2000). Appellant argues that the district court erred by (1) recognizing the social worker as an expert under the ICWA; (2) failing to adopt the recommendations of the tribal representative; and (3) relying on evidence that was not clear and convincing.
conclude from a review of the record that the district court did not deem the
social worker to be an expert for purposes of the ICWA, but instead relied on
Moreover, the record shows appellant’s failure to (1) demonstrate her sobriety; (2) provide adequate food, clothing, and supervision for the children; and (3) otherwise abide by her case plan. In addition, the record indicates that (1) each child has special needs; (2) two of the children had physical altercations so severe that they had to be put in separate foster homes; (3) one child lit appellant’s bedroom on fire and was found on the roof of a five-story building; (4) one child had to be deloused several times after spending time with appellant; and (5) one child had sexually abused his sibling. We conclude that, on this record, leaving the children in appellant’s custody would likely result in serious emotional or physical damage.
claims that the district court should not have overruled her objection to the
guardian ad litem’s closing statement or denied appellant’s request to cross
examine the guardian ad litem after the statement. But because there was no new-trial motion, this
allegation of trial error is not properly before us. Sauter
v. Wasemiller, 389 N.W.2d 200, 202 (
Appellant argues that because the county, the social worker, and the district court requested proof from her that she remained sober, the burden of proof was improperly shifted to her. See Minn. R. Juv. Prot. P. 39.04 (petitioning party must prove allegations in petition by clear and convincing evidence). We disagree. The case plan to which appellant agreed requires her not only to remain sober, but to demonstrate her sobriety. The district court was presented with conflicting evidence on appellant’s chemical health: (1) appellant testified that she remained sober, but failed to produce test results or verification of attendance at Narcotics Anonymous; and (2) the county submitted evidence of appellant’s history of chemical-related problems, her relapses into chemical use after completing treatment, and her refusal to undergo urine analyses (UAs) after agreeing to do so. On this record, the district court did not err in relying on the county’s evidence rather than appellant’s unsubstantiated assertions. See Varner v. Varner, 400 N.W.2d 117, 121 (Minn. App. 1987) (stating that district court is not required to believe even uncontradicted testimony if there are reasonable grounds to doubt its credibility).
placement of an Indian child requires the county to make active, culturally
appropriate efforts to prevent placement of the child and to return the child
to the family as soon as possible. 25
U.S.C. § 1912(d) (2000);
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.