may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1996).
STATE OF MINNESOTA
IN COURT OF APPEALS
In the Matter of the Welfare of:
B.M.J., L.M.J., and R.L.J.
Filed July 8, 1997
Vacated and remanded
Hubbard County District Court
File No. J2-95-50158
Craig S. Hunter, Blair W. Nelson, Hunter Law Firm, P.A., 112 West Third Street, P.O. Box 606, Park Rapids, MN 56470 (for Appellant)
Mark J. Thomason, Thomason Law Office, 110 Pleasant Avenue, P.O. Box 87, Park Rapids, MN 56470 (for Respondent)
Considered and decided by Parker, Presiding Judge, Toussaint, Chief Judge, and Harten, Judge.
Appellant L.J.C. appeals from a Hubbard County district court order terminating her parental rights pursuant to Minn. Stat. § 260.221, subd. 1(b)(1) (abandonment), 1(b)(4) (palpable unfitness), and 1(b)(5) (1996) (failure of reasonable efforts). The district court found that appellant had abandoned the children, that she was palpably unfit to parent, and that Hubbard County had made reasonable efforts to alleviate the conditions that necessitated the CHIPS petition. Appellant claims that the county did not comply with evidentiary requirements of the Indian Child Welfare Act and that the evidence regarding termination was stale. We vacate and remand.
On November 21, 1990, appellant gave birth to a second child, L.M.J. After that birth, HCSS again became involved with appellant because of a report that she had been leaving her children alone. Appellant then was having mental health problems; in May 1991, she was hospitalized due to mental illness. Following her release, HCSS provided a number of services to appellant.
In June 1991, appellant requested emergency foster care placement of B.M.J. and L.M.J. In July 1991, HCSS filed a CHIPS petition based on appellant's inability to care for B.M.J. and L.M.J. In December 1991, the district court found the children to be in need of protection or services; the original CHIPS finding remained in place at the time of trial.
On January 8, 1993, appellant gave birth to another child, R.L.J., who, at the time of her birth, was the subject of a CHIPS petition filed by HCSS. R.L.J. has remained in foster care since then. The only change in the children's placement status occurred in 1994, when they were placed in the home of their paternal grandmother pursuant to the Indian Child Welfare Act (ICWA) of 1978, 25 U.S.C. §§ 1901-1963 (1994).
Appellant has spent about half of the time between 1987 and 1996 in hospitals, mental health treatment centers, or adult foster homes, having twice required civil commitment. Since 1991, HCSS has established and implemented at least two dozen case plans to assist appellant with her mental health problems and to develop her parenting skills with the goal of reuniting her with her children. Appellant's mental illness has impeded her ability to complete her case plans successfully.
In October 1995, HCSS petitioned for termination of appellant's parental rights due to her long-term mental illness and repeated inability to comply with the efforts of HCSS to reunify her with her three children. On October 31, 1996, a trial was held on the termination petition. At trial, HCSS called as witnesses Michelle Fischer, a Hubbard County social worker; Joy Torvinen, appellant's mental health case manager; and Ronelva Gustafson, a child protection worker for the Leech Lake Family Services. None of these individuals was presented as a qualified expert witness pursuant to the ICWA. HCSS also presented the testimony of psychologist Dr. Dieter Zoglauer in support of termination. Dr. Zoglauer examined appellant in 1993 in connection with one of the petitions for her commitment and concluded that she suffered from chronic schizophrenia, chronic paranoia, alcohol abuse, and had a dependent personality disorder.
Following trial, the district court terminated appellant's parental rights to her three daughters pursuant to Minn. Stat. § 260.221, subd. 1(b)(1) (1996), finding that appellant had abandoned the children; pursuant to Minn. Stat. § 260.221, subd. 1(b)(4) (1996), finding that she is palpably unfit to be a party to the parent and child relationship; and pursuant to Minn. Stat. § 260.221, subd. 1(b)(5) (1996), finding that reasonable efforts by the county had failed to correct her parental unfitness. This appeal resulted.
The parties do not dispute that appellant's three children are Indian children or that the ICWA applies in this case. See 25 U.S.C. § 1903(4) (1994) (defining "Indian child"). Under the ICWA, termination of parental rights requires proof beyond a reasonable doubt. 25 U.S.C. § 1912(f) (1994). The district court found that HCSS had met this stringent standard of proof for three statutory grounds for termination.
Appellant alleges that the county failed to prove that termination was supported by evidence beyond a reasonable doubt because (1) HCSS failed to submit testimony from a qualified expert as required by the ICWA and (2) the evidence before the district court did not address appellant's current ability to parent.
1. Appellant argues that the testimony relied on by the district court came from persons who were not qualified as experts under the ICWA and therefore the findings are not supported by the evidence.
Although appellant did not challenge the failure of HCSS to present testimony of a qualified expert witness at the trial, this court may review an issue for the first time on appeal "where to decline review would work an injustice or infringe upon a constitutional right." Hyduke v. Grant, 351 N.W.2d 675, 677 (Minn. App. 1984). Because of the important interest at stake in this termination proceeding, we will review this issue despite appellant's failure to raise it in the district court. See In re Welfare of A.D., 535 N.W.2d 643, 647 (Minn. 1995) ("There is perhaps no more grave matter that comes before the court than the termination of a parent's relationship with a child."); In re Welfare of S.R.A., 527 N.W.2d 835, 837 (Minn. App. 1995) (although parent failed to move for a new trial, evidentiary issues raised on appeal from a termination order may be reviewed in the interest of justice), review denied (Minn. Mar. 29, 1995).
The question of whether HCSS was required to call a qualified expert witness involves application of the ICWA, 25 U.S.C. § 1911-1963 (1994). In re Welfare of J.A.S., 488 N.W.2d 332, 334 (Minn. App. 1992), review denied (Minn. Oct. 20, 1992). We have held that section 1912(f) requires testimony of a qualified expert witness in order for the state to meet its burden of proof for termination. Id. at 335 (citing In re N.L, 754 P.2d 863, 866-68 (Okla. 1988)). In relevant part, the ICWA provides:
No termination of parental rights may be ordered * * * in the absence of a determination, supported by evidence beyond a reasonable doubt, including testimony of qualified expert witnesses, that continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child.
25 U.S.C. § 1912(f) (emphasis added).
To determine whether witnesses qualify as experts under the ICWA, Minnesota follows the guidelines issued by the Bureau of Indian Affairs (BIA) and the Minnesota Department of Human Services (DHS). In re Welfare of M.S.S., 465 N.W.2d 412, 417 (Minn. App. 1991); In re Welfare of B.W., 454 N.W.2d 437, 443-44 (Minn. App. 1990). These guidelines provide that under the ICWA, a qualified expert witness should be:
(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. [or]
(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. [or]
(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.
M.S.S., 465 N.W.2d at 417 (quoting B.W., 454 N.W.2d at 442; DHS manual, XIII-3586 (January 30, 1987)).
The district court made no findings regarding whether any of the witnesses who testified in support of termination was qualified as an expert under the ICWA. Nor did HCSS elicit testimony from any of the witnesses concerning whether they had "substantial knowledge of prevailing social and cultural standards and childrearing practices within the Indian community." We cannot assume that any of the witnesses would qualify as an expert under the Indian Child Welfare Act. See B.W., 454 N.W.2d at 444-45 (guardian ad litem and case workers, even if they deal with Indian families, are not automatically qualified as an expert). Thus, we conclude that the district court erred in ordering termination of appellant's parental rights in the absence of testimony of a qualified expert witness as required by the ICWA.
2. Appellant also argues that the district court erred by basing termination of her parental rights on evidence that was stale, that is, evidence that did not address her current ability to parent. Termination of parental rights should not be based exclusively on past events. In re Welfare of T.M.D., 374 N.W.2d 206, 212 (Minn. App. 1985), review denied (Minn. Nov. 25, 1985). Evidence relating to a termination decision must address conditions that exist at the time of the trial. Chosa, 290 N.W.2d at 769; In re Welfare of D.F.B., 412 N.W.2d 406, 410 (Minn. App. 1987), review denied (Minn. Nov. 18, 1987). Appellant testified that she is currently taking medication for her mental illness and that she believes she would be able to care for her three children if they were returned to her. Appellant argues that in light of this testimony the district court did not have sufficient evidence to conclude that her mental illness rendered her unable to care for her children. See In re Welfare of S.Z., 547 N.W.2d 886, 892 (Minn. 1996) (district court should not terminate parental rights even though parent is mentally ill if evidence demonstrates that within foreseeable time parent will be able to care for child).
The evidence concerning appellant's parenting ability, mental health, and compliance with the HCSS plan related to circumstances that existed about one year before the trial. Fischer, appellant's social worker, testified that the last time that she had provided services to appellant was approximately one year before the trial, and Torvinen, appellant's mental health case manager, testified that she had not rendered any services to appellant since June 1995. Additionally, psychologist Dr. Zoglauer, who testified in favor of termination, stated that he only evaluated appellant once (in September 1996) before submitting his report to the court. Dr. Zoglauer's opinion was based primarily on three court-ordered examiner reports prepared for commitment hearings in September 1992, December 1993, and January 1996. The parental termination trial took place in October 1996. Under the circumstances, we conclude that the district court erred in terminating appellant's parental rights based on evidence that failed to address appellant's current ability to parent.
Because HCSS failed to present evidence of a qualified expert as required by the ICWA and evidence regarding appellant's current ability to parent, we conclude that the evidence supporting termination on three statutory grounds is incomplete and therefore insufficient to support parental termination. See In re Alsdurf, 270 Minn. 236, 239, 133 N.W.2d 479, 481 (1965) (there must be "strict adherence to the letter of the law" regarding the termination of a parent-child relationship).
Considering the totality of the circumstances, we believe that the interests of justice require that we vacate the judgment and remand with directions to the district court to reopen the record forthwith to receive such evidence that will enable it to make supplementary findings of fact and conclusions of law regarding: (1) appellant's current fitness to parent the children; (2) evidence from an expert witness qualified under the ICWA; and (3) such other evidence, if any, that the district court deems relevant in furtherance of the foregoing. The district court shall then redetermine the case based on the original record as supplemented, and issue amended findings of fact, conclusions of law, and order for judgment. The procedure on remand shall be within the discretion of the district court in accordance with law. In ordering this disposition, we express no opinion on the merits of the case.
Vacated and remanded.
[ ]1Appellant also argues that the district court conclusion that social service efforts to correct conditions of neglect or dependency have failed is not supported by the evidence because HCSS failed to produce evidence concerning a current Beltrami County juvenile proceeding regarding another of her children. Appellant does not offer any support for this argument nor explain why this evidence is relevant to the instant case.