This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
IN COURT OF APPEALS
In the Matter of the
Welfare of the Child of T.L.C., Parent.
Filed November 22, 2005
Hennepin County District Court
File No. J1-04-058638, Family No. 240893
Leonardo Castro, Chief Fourth District Public Defender, Peter W. Gorman, Assistant Public Defender, 317 Second Avenue South, Suite 200, Minneapolis, MN 55401 (for appellant T.L.C.)
Amy Klobuchar, Hennepin County Attorney, Mary M. Lynch, Assistant County Attorney, C-2000 Government Center, 300 South Sixth Street, Minneapolis, MN 55487 (for respondent Hennepin County)
Mary Shoulderblade, ICWA Department, Northern Cheyenne Tribe, P.O. Box 128, Lame Deer, MT 59043
Considered and decided by Lansing, Presiding Judge; Hudson, Judge; and Huspeni, Judge.
U N P U B L I S H E D O P I N I O N
In a permanency proceeding under Minn. Stat. § 260C (2004), the district court transferred legal and physical custody of SC to a family member who was SC’s primary caretaker for eight months preceding the hearing. SC’s mother supported the petition, and SC’s father, TLC, failed to appear or to participate in the proceedings leading up to the hearing. In this appeal, TLC challenges the burden of proof and the adequacy of the district court’s findings. Because clear-and-convincing evidence supports the district court’s transfer of custody, which is subject to the parents’ visitation and attendant rights, we affirm.
F A C T S
TLC is the presumptive father of SC, who was seven years
old at the time of the permanency hearing.
In April 2002, when SC was five years old,
supported the petition for transfer of custody to CJ-H. TLC opposed the petition but failed to appear for the hearing or participate in the permanency proceeding. On his behalf, TLC’s attorney filed a petition for legal and physical custody, but the district court denied it as untimely.
The district court granted
TLC moved for a new trial, disputing whether the burden of proof should be clear and convincing or beyond a reasonable doubt. The district court denied the motion, and TLC appeals from the transfer-of-custody order but does not challenge the district court’s denial of his custody petition.
D E C I S I O N
ICWA generally applies
to any “child custody proceeding” involving an Indian child. 25 U.S.C. § 1903 (2000). Specifically,
it applies to proceedings for foster-care placement, the termination of
parental rights, preadoptive placement, and adoptive placement.
In transferring legal and physical custody to CJ-H, the
district court applied the clear-and-convincing burden of proof. By making this determination, the court
rejected TLC’s argument that the transfer of legal and physical custody to CJ-H
amounted to a de facto termination of parental rights. See
A.H. v. State, 779 P.2d 1229, 1234 (
We conclude that the district court did not err by determining that the appropriate burden of proof was clear and convincing. The transfer of SC’s custody is distinct from a termination of parental rights in three significant respects. First, TLC retains his right to reasonable parenting time. CJ-H, who is his cousin, has not only expressed her support for TLC’s visitation, but has affirmatively attempted to encourage his visitation. TLC has visited SC only seven times in the past four years and has presented no evidence that his visitation rights were restricted. Furthermore, the court explicitly reserved his parenting rights. Second, TLC preserves his right to return to court to regain custody of SC because he has not lost his rights as a parent. Third, TLC may request a modification of his parenting time or the custody arrangement. Because TLC’s parental rights were not terminated, the district court properly applied the clear-and-convincing burden of proof.
At the conclusion of a permanent-placement hearing for a
child who cannot return home, the district court must “order a permanent
placement in the child’s best interests.”
Minn. Stat. § 260C.201, subd. 11(c) (2004). For a child who, like SC, cannot return home,
the court may, as one of its permanency options, transfer permanent legal and
physical custody to a relative if it is in the child’s best interests.
contends that ICWA must be read in conjunction with the statutory criteria that
govern termination of parental rights. See
district court also considered SC’s relationship with each of her parents and
the tribe. Both her mother and the tribe
support the transfer of custody. The district
court made specific findings about the mother’s inability to care for SC due to
the continued presence of domestic violence in her home and her chemical-dependency
problems. SC’s mother does not dispute
these findings. In considering the child’s
relationship with TLC, the court noted TLC’s convictions for domestic violence,
that TLC does not provide any financial support, that he has not participated
fully in his case plan, that he has seldom visited his child, and that he has
not attempted to establish a relationship with the child despite CJ-H’s efforts
to involve him in the child’s life.
These determinations are supported by the record and satisfy the
explicit requirements of